The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-06-05

also W,thholds from the wife any |
power to sell, alien or convey any por-
! ton 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 be made, woul1 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 especially 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 es-
tate, charged with trusts in favor of
the children, and of the remainder
qualified life estate. This clause pro-
vides, also, how the remainder shall
be disposed of in case the wife fails to
exercise the power conferred -pon her
, by this and the second clause of the
will, This is also inconsistent with
an intention by the testator to Gre
ate 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, numerous au-
thoritles are cited by the court, which
states as the general rule, that if a
particular estate is expressly created
!, with general power of disposition tC
I,aArN 70, fnfa &c
: given, the power will not enlarge the
s estate given. Under the averments Of
n the petition the property disposed OF
+ sidered to have been the separate es
e tate of the testator. 1t must be held
l. also, says the court, that any property
n bought by the executors of the will
or by either of them with funds be
[. longing to the estate at the time O
n the death of the teStator, or with tn
:: increase or profits of such estate, be
q came part of the estate of the tesla
e tor, in which the wife had no other o
IL greater interest or estate than had sh
- In the estate existing at the time o
Z. her husbands death.
Other interesting questions conSid
d cred at length by the court are:
M What power did the wife take unde
&c the will of her husband?
W How far did Mrs. Weir eXecut
I'd through her will, or through convey
J. ances which she may have made III
as der her husbands will, the power COL
m ferred on her by that will?
&c How far, if at all, did Martha ,
n Weir execute, by the will which sh
rs made, the powers conferred on her b
e, the will of her husband?
ct This last question involving tn
Sc issue as to how far, if at all, the vii
&c carried out the will of her husband
al treated at considerable length. I'll
y, will of the wife is quoted from largel
II. in connection with the conclusions {
ny the court, which in effect are, that {
n there is nothing in the I'd, Sd. 4th an
he 9Th clauses of Mrs. WIS will whic
leaves evidence that she supposed 81
es had an interest in the lands devise
ne those clauses operate voted execl
ton of the power given to her by tt
the 9th clause of her husbands will
se that the 9th, 7th, 9Th and 9th claus,
ST of her will, however, do not refer
ge the will of her husband as the sourt
n of the power which through h,
ne will she exercised, nor do the
n refer to anything which is made SUI
yes ject to that power; that on the contr
0y ry they exclude the idea that she il
ne tended thereby to execute "a pow,
given by the will of her husband
ia, dispose of property belonging to h
ne estate, in that, therein, she disposes {
le- lands and personal property to whic
she asserted title in herself. This
In, inconsistent with her intentfC
oy through the clauses of her will refe
Ar red to, to execute the power give
to her by the will Of her husband.
If, say the court, she had named
Is these clauses, property embraced
b; the will of her husband, then tt
ed question would arise, whether Il
Tn disposing of the property as her ow
OF would rebuff the presumption of b.
intention to execute the power give
by her husband. No such questio
ed however, is presented. Judgment
reversed and cause renamed.