Blanton v. Mayes

Citations

• 58 Tex. 422
• 1883 Tex. LEXIS 41

Syllabus

<p>1. Will — Executors.—By will dated December 12, 1871, and probated in 1875, a testator willed and bequeathed to three persons “and the survivor of them,” all his estate, upon certain trusts which were specified. Only one of the parties named qualified, the other two having declined the trust. The three to whom the bequest was made in trust were named as executors of the will, which provided that no further action should be had in the district or other court having jurisdiction of probate matters, than the probate and registration of the will. In a suit by an administratrix with the will annexed to recover land which had been conveyed, without order of court, by the one executor who qualified, held,</p> <p>(1) The provision of the statute of' 21 Henry VIII, c. 4, in so far as it provided that the trusts conferred in a will on several executors named might be discharged by those of them who qualified, was in effect engrafted on the probate system of Texas by the act of August 15, 1870.</p> <p>(2) But when the testator bequeathed in trust to several executors “and the survivor of them,” as independent executors, and but one qualified, the others being still alive, the independent feature of the will must be disregarded, and the executor qualifying must administer the estate as in other cases, under the orders of the probate court.</p> <p>(3) The death of the co-executors named is the sole event which can authorize the one who qualifies under such a will to administer the estate and execute the trusts of the will free from control of the probate court.</p> <p>2. Distinguished.— This case distinguished from Johnson v. Bowden, 43 Tex., 671.</p> <p>3. Charge oh court.—It is ground for reversal to submit to the juiyr an issue in reference to which there is no evidence, if they may have probably been misled by the charge.</p> <p>4. Power oh executor to sell land.— See opinion for terms of a will in which the power to “manage” and “control ” the estate until the majority o