Weir v. Smith

62 Tex. 1, 1884 Tex. LEXIS 178

• Court: Texas Supreme Court
• Decided: June 3, 1884
• Docket: Case No. 4966
• Status: Published

Opinion

Stayton, Associate Justice.

The rights of the parties plaintiff and defendant depend on the true construction to be placed on the will of Adolphus G. Weir, and upon the will of his wife, Martha J. Weir, subsequently executed.

The wife, Martha J. Weir, and Benjamin Weir, a son, were, by the will of Adolphus G. Weir, appointed the executors of his will, without the control of the probate court, and they so qualified.

The parts of his will which bear on the questions at issue between the parties are the following:

“Second. I will and bequeath unto my beloved wife, Martha Jane Weir, all my property, both real and personal, of every character and description, to be by her kept together during her natural life for the support of herself and the support of her and my children, and the maintenance and education of such of them as have not completed their education; each of said children, on his or her arriving of age or marrying, to receive such amount of my said property, or that may then be on hand, as my said wife may, in her discretion, think proper to give him or her.

“ Third. I leave to my said wife’s discretion and judgment the education to be given our said younger children, feeling confident that it will be as liberal and thorough as may be practicable.

“ Fourth. It is my will and desire that all my said property shall be managed and controlled as it has heretofore been by myself and my said wife as near as may be. And if my said wife should deem it advisable to sell, alien and convey any portion of the same, it is my will and desire that she, with my executor to be hereinafter named, shall do so at such time or times as she may deem proper and advisable.

“Fifth. It is my will and desire that my said wife, at the time of her death, shall make such final disposition of such of my said property, as also the increase and profits arising from the same, as there may then be, as she in her discretion may think proper and right. But in the event of her failing to dispose of the same or any part thereof, then it is my will that all any property of every character so remaining undisposed of, shall be divided equally between all my children then living or their descendants, share and share alike, between my said children and the descendants that portion which their ancestor, if living, would have been entitled to.”

It is evident from the second clause in the will that the testator only intended by the will to vest an estate for life in his wife in all of his property, real and personal.

If the clause of the will referred to left this matter uncertain, the subsequent clauses of the will place it beyond controversy.

The fourth clause directs how it shall be managed, which is inconsistent with the idea that the testator intended by the will to vest in the wife an estate in fee; but is consistent with his intention, expressed in other parts of the will, to vest even the life estate in the wife charged with named trusts, and with a view to making the increase and profits to be realized from the estate, except in so far as it might be necessary to use it for the purpose of carrying out the purposes for which the life estate was created, a part of the remainder to be disposed of in accordance with the will.

It also withholds from the wife any power to sell, alien or convey any portion of the estate, except such as she could convey under the-second clause, but gives this power to her and to her co-executor, to be exercised by them at such time or times as she may deem advisable; the terms upon which such conveyance, however, could b© made would have to be fixed by the two executors. This is also inconsistent with the intention of the testator to give to his wife an estate in fee.

The fifth clause directs how the estate in existence at the time of the death of the wife shall be disposed of, and expressly makes the increase and profits, not used for the purposes named in the will, a part of the remainder. That provision is utterly at war with any intention to vest in the wife other than a life estate, charged with trusts in favor of the children, and, of the remainder, a qualified life estate.

This clause provides, also, how the remainder shall be disposed of, in case the wife fails to exercise the power conferred upon her? by this and the second clause of the will.

This is also inconsistent with an intention by the testator to create in the wife any estate greater than an estate for life.

As to the true construction of the will, in respect to the estate thereby conveyed to the wife, the following authorities may be profitably consulted: Philleo v. Holliday, 24 Tex., 41; Orr v. O’Brien, 55 Tex., 154; Wimberly v. Bailey, 58 Tex., 225; Burleigh v. Clough, 52 N. H., 267; Dunning v. Vandusen, 47 Ind., 423; Denson v. Mitchell, 26 Ala., 361; Henderson v. Vaulx, 10 Yerg., 30; Brant v. Virginia, C. & I. Co., 93 U. S., 327; Funk v. Eggleston, 92 Ill., 515; 2 Washburn on Real Prop., 670.

The general rule is, that if a particular estate is expressly created, with a general power of disposition to the person to whom such estate is given, then the power will not enlarge the estate given.

Under the averments of the petition, the property disposed of by the will must be considered to have been the separate estate of the testator.

It must be held, also, that any property bought by the executors of the will, or by either of them, with funds belonging to the estate at the time of the death of the testator, or with the increase or profits of such estate, became a part of the estate of the testator, in which the wife had no other or greater interest or estate than had she in the estate existing at the time of her husband’s death.

The next question which arises is: What power did the wife take under the will of her husband ?

Under the second clause of the will, she evidently had power to convey to any one or more of the children, becoming of age or marrying, such portion of the estate on hand, at such time as, in her discretion, might seem proper; the wife’s discretion, however, in this respect, could not have been so exercised as to defeat some of the main purposes for which the estate for life was given to her. The mode of the exercise of the power conferred by this clause would evidently be such as under the law would be appropriate to the conveyance of such property as might be so conveyed, if made by one not acting under a power, except in so far as it might be necessary by the conveyance to evidence the fact that it was intended thereby to execute the power.

The fifth clause of the will gave to the wife the power, at the time of her death, to make a final disposition of such parts of the original estate, and of the increase and profits arising therefrom, as might then be undisposed of, as she, in her discretion, might think proper and right.

This gave to the wife a very broad power, a power subject alone to her own discretion, through which she might pretermit some of the children.

This power, as it could only be exercised “ at the time of her death,” it would seem, in the nature of things, could only be executed by her will.

If the wife failed to execute this power, or executed it only as to a part of the estate, then the will provided, in case of an entire failure to execute the power, that all property belonging to the estate of every character, undisposed of, should be equally divided between all of the testator’s children “ then living, or their descendants, share and share alike between my said children, and the descendants, that portion which their ancestor would have been entitled to.”

The fifth clause, it will be observed, provides for the same proportionate distribution in case of a partial failure of the wife to dispose of the estate as in case of an entire failure.

If there was an entire failure to dispose of the estate, each of the five children would receive one-fifth of the estate under the will; if there was a partial disposition of the estate by the wife, under the powers conferred on her by the second and fifth clauses of the will, then each of the five children would be entitled to only one-fifth of the estate undisposed of, and this, even though under the partial disposition made by the wife some of the children may have received property and others none.

This seems to us inequitable, and but for the language of the will, those who have received in the partial disposition of the property ought to be compelled to account for that received by them, so that all could be made equal through the final distribution. This, however, was a matter for the determination of the testator, whose will, when clearly evidenced, must control in the disposition of that estate which the law permits him to dispose of by his will.

The power given to the two executors, by the fourth clause of the will, it is now unnecessary particularly to consider.

The next inquiry is: How far did Mrs. Weir execute through her will, or through conveyances which she may have made under the second clause of her husband’s will, the powers conferred on her by that will?

If the executors purchased lot Ho. 11, block 27, in the city of Austin, with funds belonging to the estate of Adolphus Weir, as part of the estate at the time of his death, or the increase or profits of it afterwards, then the lot became a part of the estate, it matters not in whose name the title was taken; and the title of the estate thereto could not be divested, and title vested in Eliza M. Weir and Monterey V. Weir, unless the same was done by a deed made to them by Martha J. Weir evidencing her will and discretion so to convey to them upon their arriving at age or marrying, in accordance with and in execution of the power conferred on her by the second clause of her husband’s will.

The petition alleges that the lot was bought with the funds of Adolphus Weir’s estate, and that the title thereto was taken in the name of Benjamin Weir, who subsequently conveyed it to Eliza M. and Monterey V. Weir, two of the children, without being joined by his mother. Ho power whatever, nor discretion, was confided to Benjamin Weir by bis father’s will under the second and fifth clauses. These clauses gave to Martha J. Weir powers which none other than she could execute, and an attempt to execute similar power by Benjamin, although a co-executor with his mother, would be ineffective.

Under the fourth clause of the will of Adolphus Weir, Benjamin, joined by his mother, was given power to sell, alien and convey property belonging to the estate, but whether property should be so disposed of, even under this clause, was left solely to the discretion of the mother. This clause, however, can have no reference to the distribution of property among the children, for that is provided for by the second and fifth clauses.

The conveyance of the lot by Benjamin was not in the exercise of power given by any clause of his father’s will, if the averments of the petition are true; hence, such conveyance passed no title. The facts stated in the petition, in reference to the north half of lot Ho. 12, block 27, in the city of Austin, would show a valid execution of the power conferred on Martha J. Weir by the second clause of her husband’s will, if the conveyance was made to Eliza M. Weir upon her arriving of age or marrying.

It is evident from the statements of the petition that the facts in relation to the south half of lot 12, block 27, are not accurately known, but sufficient has been said in reference to lot 11 and north half of lot 12, in block 27, to indicate the law applicable to the facts likely to arise in regard to the south half.

We will say, however, that if the half lot was bought with the funds of the estate, then it became the property of the estate, in the names of whomsoever the title may have been taken, and that it is still a part of the estate of Adolphus Weir, unless it has been conveyed by Martha J. Weir in execution of the power conferred on her by the second clause in her husband’s will, or by herself and Benjamin under the power conferred on them by the fourth clause of the will.

The next inquiry which arises is: How far, if at all, did Martha J. Weir execute by the will which she made the powers conferred on her by the will of her husband?

So much of her will as bears on this question is as follows:

“ Second. I do hereby give, devise and bequeath to my beloved daughter, Eliza McLaren Weir, one undivided one-half of two certain tracts of land, described as follows: First, that certain tract of land situated on the line of Travis and Hays counties, in the state aforesaid, being the same tract occupied by me and my late husband,. A. G. Weir, and known as the Manchaca place, being a survey of five hundred and fifty-three and one-half acres for W. D. Miller, situated on Onion creek, being the south half of one-quarter league Ho. 1, granted to Josephus T. Irving. (Field notes omitted.) Second, a parcel of land situated on Onion creek, in the counties of Hays and Travis, in the state aforesaid, being a part of that portion of S. V. It. Eggleston league, . . . and containing sixty acres of land, more or less. (Field notes omitted.)

“ Third. I do give, devise and bequeath to my beloved daughter, Monterey Virginia Weir, the remaining undivided one-half of the two tracts of land described in the second provision of this will.

“Fourth. I do give, devise and bequeath to my beloved son, Peter Weir, one equal undivided one-half of all that certain tract of land lying and being situated in the county of Hays and state of Texas, bounded and described as follows: (Then follow the field notes and description of four hundred and ninety-two acres of the Trinidad Varcinas survey, which are omitted.)

“Fifth. I do give, devise and bequeath to my beloved daughter, Louisa Burleson, formerly Weir, for the term of her natural life, with remainder over to her children, the remaining undivided one-half interest in the tract of land described in the fourth provision of this will.

“Sixth. I do give, devise and bequeath to each one of my three children, Peter Weir, Eliza McLaren Weir, and Monterey Virginia Weir, one-fourth of all the real estate belonging to me and not heretofore devised to any, that is to say: that each one of the three devisees last hereinbefore named shall each receive one undivided one-fourth of said real estate not heretofore described.

“ Seventh. I do give, devise and bequeath unto my beloved daughter, Louisa Burleson, formerly Weir, for the term of her natural life, with remainder over to her children, the remaining one undivided one-fourth of the real estate described in provision sixth of this will.

“ Eighth. I do give and bequeath unto my beloved children, Peter Weir, Eliza McLaren Weir, and Monterey Virginia Weir, share and share alike, all my household and kitchen furniture and personal property of every kind whatever, saving and excepting only money.

“ Ninth. I do give and bequeath to my beloved daughter, Eliza McLaren Weir, all money of which I may die possessed.”

The rule in reference to the execution of powers either by deed or will, and of construction, are so clearly stated by Chancellor Kent that we cannot do better than to state it in his language: “ The general rule of construction, both as to deeds and wills, is, that if there be an interest and a power existing together in the same person, over the same subject, and an act be done without a particular reference to the power, it will be applied to the interest, and not to the power. If there be any legal interest on which the deed can attach, it will not execute the power. If an act will work two ways, the one by an interest and the other by a power, and the act be indifferent, the law will attribute it to the interest, and not to the authority, for fietio eedit veritati.

“ In Sloan v. Cadogan, it was declared by the master of the rolls, after a full discussion, to be settled, that a general disposition by will would not include property over which the party had only a power, unless an intention to execute the power could be inferred. A will need not contain express evidence of an intention to execute a power. If the will be made without any reference to the power, it operates as an appointment under the power, provided it cannot have operation without the power. The intent must be so clear that no other reasonable intent can be imputed to the will; and if the will does not refer to a power, or the subject of it, and if the words of the will may be satisfied without supposing an intention to execute the power, then, unless the intent to execute the power be clearly expressed, it is no execution of it.” 4 Kent, 335.

The rule thus stated is well sustained. Burleigh v. Clough, 52 N. H., 267; Dunning v. Vandusen, 47 Ind., 423; Eaton v. Straw, 18 N. H., 320; Denson v. Mitchell, 26 Ala., 361; French v. Hatch, 8 Foster, 331; Blagge v. Miles, 1 Story, 445; Jones v. Wood, 16 Penn., 25; Funk v. Eggleston, 92 Ill., 515; Jarman on Wills, 628, and cases cited; Sugden on Powers, 232, 364, 421-424; Bingham’s Appeal, 64 Penn. St., 345; Tiedman on Real Prop., 563-569.

As before said, under the averments of the petition no presumption can be indulged that Mrs. Weir had any interest whatever in the property referred to in the will of her husband, except such as she took under that will.

The property named in the second, third, fourth and fifth clauses of her will is alleged to have belonged to Adolphus Weir at the time of his death.

This being true, Mrs. Weir could have no interest which could pass by the will; for her life estate ended at the same time the will took effect; and as to the property named in the clauses of her will referred to, the will would be inoperative, unless in execution of the-power conferred on her by her husband’s will.

While her will does not refer to the power given by her husband’s will, it does apply to that which is made subject to that power, through which alone, she having no interest, the will made by her could operate. There is nothing in the clauses of her will referred to, which bears evidence that she supposed she had an interest in the lands devised, and we are of the opinion that those clauses operate a valid execution of the power given to Mrs. Web-by the fifth clause of her husband’s will.

The power given to her by that clause is very broad, and under it. she might do what her husband could have done directly by his-own will. He might have so given to Mrs. Burleson only an estate for life in the property which by the fifth clause of the will of Mrs. Weir is so devised to her, with remainder to her children. The like devise by Mrs. Weir in the execution of the power must be held valid.

[Opinion delivered June 3, 1884.]

The sixth, seventh, eighth and ninth clauses of Mrs. Weir’s will, however, do not refer to the will of her husband as the source of the power which through her will she exercises, nor do they refer to anything which is made subject to that power; on the contrary, they exclude the idea that she intended thereby to execute a power given by the will of her husband to dispose of property belonging to his estate, in that therein she disposes of lands and personal property to which she asserted title in herself. This is inconsistent with her intention, through the clauses of her will referred to, to execute the power given to her by the will of her husband. If she had named, in these clauses, property embraced in the will of her husband, then the question would arise, whether her disposing of the property as her own would rebut the presumption of her intention to execute the power given by her husband.

Ko such case, however, is presented; no property shown to belong to her husband’s estate is named in these clauses, and through them she professes to dispose of her own property, and no presumption arises from anything alleged in the petition that she intended to execute the power given by her husband’s will.

From this it follows that the will of Mrs. Weir did not dispose of any of the property of her husband’s estate except that which is named in second, third, fourth and fifth clauses of her will; and that all of the property of his estate, existing at the time of the death of his wife, undisposed of, remains for equal distribution between the children in accordance with the fifth clause of his will.

3STo inquiry arises, as the case is presented, whether evidence dehors the will might be introduced to show the intention of Mrs. Weir, by the clauses of her will under consideration, fully to execute the power given by her husband’s will.

For the error of the court in sustaining the demurrer to the petition, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

Associate Justice West not sitting.