Box v. Word

Citations

• 65 Tex. 159
• 1885 Tex. LEXIS 330

Syllabus

<p>1. Will—Construction—Community—Survivor—Partition—Presumption.—A husband died leaving a wife and five children. The will gave the wife a life estate in all the husband’s property during her life or widowhood; in case she married again the property was to be equally divided between her and the children, and at her death, whether she married again or not, all the estate was to be divided among the children. It further provided, “I desire and will that my wife remain on the .place where I now reside, unless in her judgment she should think best to remove, in which case, she desiring it, my executors are authorized to sell all, or any portion, of said home tract, and that she raise and control my children in such manner as she thinks best. Be it understood that if my wife thinks proper to remain on the place where I now live, and desire to sell any portion of said home tract, I will that my executors have full power to sell such land in such quantities as may be thought most desirable.” Only one of the two executors qualified; he died soon after, and no further action was taken in the probate court. The wife sold two portions of the home tract and the heirs of the husband brought suit against the vendees. Held:</p> <p>(1) That the wife could take only a life interest in any property owned by the husband.</p> <p>(2) That property purchased during the marriage was presumed to be community.</p> <p>(3) The will confided to the wife the exercise of judgment as to whether the land or a part of it should be sold, but to the executors was given the power to determine every other fact necessary to be determined before a sale could be made, as well as the power to consummate a sale.</p> <p>(4) The testator must be presumed to have intended to confer upon the wife and the executors respectively the power which he expressly gave and none other. The death of the executors before the will was fully executed, could not confer upon the wife a power which the will did not give her.</