Weir v. Smith

• Court: Texas Supreme Court
• Writing for the Court: STAYTON
• Citation: Weir v. Smith, 62 Tex. 1 (Tex. 1884)
• Decision Date: 03 June 1884
• Docket Number: Case No. 4966.
• Parties: ALBERT WEIR ET AL. v. FELIX E. SMITH.

62 Tex. 1

ALBERT WEIR ET AL.

v.FELIX E. SMITH.

Case No. 4966.

Supreme Court of Texas.

Jun. 3, 1884.

APPEAL from Travis. Tried below before the Hon. A. S. Walker.

Albert Weir and Louisa Burleson, joined by her husband David C. Burleson, brought suit against Peter Weir, Eliza McLaren Weir, Monterey V. Weir, Felix E. Smith and Fred Carleton, as executors of the last will of Martha J. Weir, deceased, and Joseph, Sarah J., Martha J., Stephen M., Louisa and Elizabeth S. Burleson, and Cornelia A. Cole, wife of J. D. Cole (who was also joined as defendant), for the purpose of declaring null and void the last will and testament of Martha J. Weir, deceased, as a muniment of title to the certain lands described in the petition, and for a partition and distribution of the same among the plaintiffs and defendants as the children and heirs of Adolphus G. Weir, deceased. The wills of both Adolphus G. Weir and Martha J. Weir, his surviving widow, were set out in the petition, and a construction of the same and of the powers conferred thereby were the principal issues in the suit.

Benjamin Weir was the co-executor with his mother named in the will. In addition to what is stated in the opinion, the following allegations of the petition regarding certain property bought with estate funds, and in regard to Mrs. Weir's will, it is deemed proper to insert, though lengthy.

The petition proceeded to allege:

“That said executors on March 27, 1870, for the consideration of $925, paid by them out of funds belonging to said estate, and held by them in their said fiduciary capacity, purchased lot No. 11, in block No. 27, in the city of Austin, and instead of taking the title thereto in the name of one or both of them in their fiduciary capacity aforesaid, took the same in the name of said Benjamin Weir individually; that on March 30, 1871, said Benjamin Weir, for the nominal consideration of $1, but really without any valuable consideration, and as a mere gift, by deed conveyed said lot to the defendants Eliza M. Weir and Monterey V. Weir, who are now in possession of and claiming the same under said conveyance; that said Benjamin Weir took said title in trust for said estate, and that Eliza M. and Monterey V. Weir now hold the same in trust for said estate, and the same constitutes a part of said estate.

That on October 11, 1871, said executors, for the consideration of $350, paid by them out of the funds belonging to said estate, and held by them in their said fiduciary capacity, purchased the north half of lot No. 12, in said block No. 27, in the city of Austin, and instead of taking title thereto in the name of one or both of them in their said fiduciary capacity, took the same in the name of said Benjamin Weir individually; that afterwards, at a date unknown to plaintiffs, said Benjamin Weir, in some form, but just how they are not advised, conveyed said half lot to said Martha J. Weir; that said deed has never been recorded; that said Martha J. Weir, by deed dated January 20, 1875, without any valuable consideration, and as a mere gift, conveyed said half lot to said Eliza M. Weir, who is now in the possession of and claiming the same; that said Benjamin and Martha J. Weir took said title in trust for said estate, and that said Eliza M. Weir now holds the same in trust for said estate, and that the same constitutes a part of said estate.

That said executors, at some time prior to January 1, 1875, purchased the south half of said lot No. 12, in block No. 27, and paid for the same out of money which belonged to said estate, and held by them in their fiduciary capacity aforesaid, and took a conveyance therefor, but the same has never been placed on record, and plaintiffs cannot aver to whom said title was taken, but plaintiffs say that the same was taken in the name of Benjamin Weir, Martha J. Weir, Eliza M. Weir, or Monterey V. Weir, or to some combination of two or more of said four persons, and that such person or persons now hold the same in trust as a part of said estate.

That said executors, after their appointment as such, exchanged a tract of four hundred and ninety-two acres of land, a part of the Wm. Porter survey, in Hays county, and inventoried as a part of said estate, and which was a part of the property of said estate, for a tract of four hundred and ninety-two acres, a part of the Varcinas survey, in Hays county, and that said executors took the conveyance thereof in their said capacity as executors.

… That said Benjamin Weir died intestate in 1874, leaving surviving him neither wife nor children.

That said Martha J. Weir died July 20, 1882; that said Martha J. never made any partial disposition of any of the property of said Adolphus G. Weir among the children of said testator prior to her death on the arrival of said children at majority, at their marriage, or at any other time, as contemplated by said will; that at her death there remained in her possession real and personal property belonging to the estate of said Adolphus G. Weir, as follows: Five hundred and fifty-three and one-half acres of the Joseph T. Irving one-quarter league, in Travis and Hays counties, valued at $20,000; sixty acres of the S. V. R. Eggleston league, in Travis county, valued at $1,200; four hundred and ninety-two acres of the Varcinas survey, in Hays county, valued at $4,000; one hundred and sixty acres of the M. T. Key survey, in Hays county, value $1,600; one hundred and ten acres of the Eggleston survey, value $1,100; two hundred and ninety acres of the Foote league, Hays county, value $1,450; three hundred and twenty acres, part of James Wells' survey, Hays county, value $1,600; lots 11 and 12, block 27, city of Austin, value $2,000; household furniture of the value of several hundred dollars, and several hundred dollars in money.

That said Martha J. Weir elected to take and did take a life estate under said will, and took possession and control of said property, and managed and administered the same under said will; that the property held by her as aforesaid at her death consisted of property owned by said Adolphus G. Weir in his life-time, and that acquired afterward by said executors by the use of the money and property belonging to said estate.

That upon the death of said Martha J. the remainder of the estate of said Adolphus G. Weir, and the increase and profits thereof, became vested in the plaintiffs Albert Weir and Louisa Burleson, and the defendants Eliza M. Weir, Monterey V. Weir and Peter Weir, share and share alike, one-fifth part each of said estate, and that plaintiffs are entitled to have their respective one-fifth interest each set apart and delivered to them.

That on January 20, 1875, the said Martha J. Weir made or pretended to make a last will and testament, whereby, after appointing the defendants Felix E. Smith and Fred Carleton as her executors, it is claimed and pretended by defendants that she made a final disposition of the entire estate of said Adolphus G. Weir, except said Austin city lots, as follows: To the said Eliza McLaren Weir she pretended to give one-half of said five hundred and fifty-three and one-half acres of land of the Irving survey; also the undivided half of the sixty acres, Eggleston survey; also an undivided fourth of all the real estate belonging to her and not mentioned in the will; also one-third of all testatrix's personal property, and all money of which she should die possessed. To said Monterey V. Weir one-half of said five hundred and fifty-three and one-half acre tract of land; also the one-half of said sixty acres of the Eggleston tract; also one undivided one-fourth of all the real estate of the testatrix not named in the will, and one-third of personal property, except money. To said Peter Weir an undivided half of said four hundred and ninety-two acres of land of the Varcinas survey; also one-fourth of all other real estate of testatrix not specially mentioned in the will, and also one-third of all personal property. To said Louisa Burleson a life estate in one-half of said four hundred and ninety-two acre tract of land; also one-fourth of all lands owned by said testatrix, not specially mentioned in said will, with remainder to the children of said Louisa. To the plaintiff, Albert Weir, said testatrix did not devise or pretend to devise any property whatsoever.

That the will was duly probated and Smith and Carleton had qualified as executors of said will, and had taken into their possession all of said property and estate of said Adolphus G. Weir, except said Austin city lots, and that said executors and said Eliza M. Weir, Monterey V. Weir and Peter Weir are asserting the validity of said will, and claiming and asserting title to the said property under said will; that said Eliza M. and Monterey V. are asserting title in themselves to said Austin city lots under the conveyance made to them by said Martha J. and Benjamin Weir, hereinbefore mentioned; that said defendants are claiming all of the estate of said Adolphus G. Weir, under the said pretended will of Martha J. Weir, except the part thereof in which a life estate is pretended to be devised to the plaintiff Louisa Burleson, and refuse to recognize any right in plaintiffs except as conferred in said pretended will; that defendants deny that plaintiff Albert Weir has any interest in said estate and property, and deny that plaintiff Louisa Burleson has any estate therein except the life estate aforesaid.

That said pretended will of Martha J. is null and void as a conveyance or muniment of title to any part of the estate of Adolphus G. Weir, and especially as to any part of said estate not specially named in the will of said Martha J.; that plaintiffs have received no property by virtue of said will of Martha J.; that the plaintiff Louisa Burleson expressly renounces and disclaims all right and interest under said will.

That said Martha J. had no power to dispose of the property mentioned in said...