Cooper v. Horner

Citations

• 62 Tex. 356
• 1884 Tex. LEXIS 248

Syllabus

<p>1. Will — Construction—Executors’ sale.— A will, executed in 1875, bequeathed to executors named therein, all the personal estate, in trust for the payment of the debts of the testator, and provided that no bond should be required of them. It gave to named legatees all the residue of the estate, real, personal and mixed; required the filing of an inventory of the estate by the executors; and provided that neither the probate nor any other court should have any jurisdiction over the estate, except to probate and register the will. The will, after providing for the education and support of the minor heirs out of the personal property, gave to the executors power, in terms, “ to take possession of all of said estate and manage and control and dispose of the same for the interest and benefit of the legatees under this will, and the payment of debts as hereinbefore specified.” Held:</p> <p>(1) The existence of debts authorized a sale of the real estate to pay them, the personal property being insufficient for that purpose, and the purchaser of land from the executors was not bound to follow the money paid by him to see that it was applied to the payment of debts.</p> <p>(2) The desire expressed, that in no event should the estate be subjected to the jurisdiction of the courts in its administration, required a construction of its provisions which would invest the executors with power to sell land to pay debts when such sale was necessary, and when a resort to the courts would result in ordering such sale.</p> <p>(3) Where the general intent of the testator is clear, and it is impracticable to give effect to all the language of the will expressive of some particular or special intent, the latter must yield to the former, but every expressed intent of the testator must be carried out when it can be.</p> <p>(4) The general intent of a will overrules all mere technical and grammatical rules of construction.</p> <p>(5) The purchaser of real estate from executors, acting und