Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 61
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1884.] ANDERSON v. STOCKDALE. 61
Opinion of the court.
named, in the event the others are disqualified or refuse to act.
Johnson v. Bowden, .mpra; Wardwell v. McDowell, 31 Ill., 364.
Again, as a general rule, the will speaks at the time of the death of
the testator or testatrix, and not before that time. Redfield on the
Law of Wills, vol. 1, 379, etc.
It appears that Jones died before the testatrix; that notwithstanding
his death she made no change whatever in the will. Thus
if the will with reference to the executor is to speak only from the
death of the testatrix, but one executor was in fact appointed. For
as Jones was then dead, the legal effect upon the will would doubtless
be the same as if his name had not been mentioned therein.
The fact that MIrs. Anderson failed to make any change in the
will, with reference to the executors named, after the death of Jones,
considering the provisions of the statute then in force as quoted
above, is a potent circumstance tending to the conclusion that she
was satisfied with Stockdale as sole executor, and intended that he
should act as such.
Our conclusion upon this branch of the case is, that Stockdale had
the right to qualify as executor, and to exercise all the powers conferred
by the will.
And the next question in order for consideration is as to the
extent of the power conferred by the will. The language is "that
my said executors and administrators shall have and exercise the
fullest, and most absolute control of my estate, and of the person
and property of my son Philip, that is accorded and permitted by
law." The expressed intention was that the will should be carried
into effect independently of the county court. And while there is
no express power to sell and convey real estate, nevertheless if it
should become necessary to do so in paying debts, or carrying out
executory contracts of the testatrix, such power would be implied
from the language used, when considered with reference to the fact
that the estate was to be administered independently of the county
court. The testatrix must have intended that the executor should
have and exercise such power as would be necessary to accomplish
that object. This is deriving the power, not from express grant, but
by necessary implication.
In Blanton v. Mayes, supra, it was said: "The terms 'manage'
and 'control,' standing alone and unaided by other considerations,
could not be considered as conferring a power to sell." The usual
and ordinary signification of the word "control" is the same as the
word " manage," which is to have authority over the particular matter,
to check, to restrain, to govern with reference thereto. The
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/83/: accessed August 20, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .