Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 363
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84·.] ~COOPER ,V. IonNwE. G63
jb' Opinion of the court.
carried out where it can be. And the general intent overrides all
mere technical and grammatical rules of construction." 1 Redf. on
W ills, 433, 434 (star pages).
We think that the construction given in the court below to this
will was correct, and there existed undoubted power on the part of
the executors, under proper circumstances, to sell real estate.
The purchaser of real estate under a power of sale to pay debts
is not bound to investigate whether there are debts, nor to see to
the application of the purchase money. 1 Perry on Trusts, sec. 809.
The trust under this will was of a general and unlimited nature
in respect to the sale of property to pay debts, and the purchaser
was not bound to see to it that the purchase money was applied to
the payment of any particular debt, or to see that it was applied at
all to the payment of any debt. See Sanger Bros. v. Heirs of
Moody, 60 Tex., 100; 2 Story's Equity, sees. 1127, 1130, 1131.
It is assigned as error that the court erred in overruling plaintiffs'
general exceptions to defendants' answer, because a general allegation
of indebtedness was not sufficient, and that the answer ought
to have shown the specific items of debt under which authority for
the sale was claimed. Also, in admitting testimony of specific
debts against the estate of E. S. Cooper, there being no allegations
of such in the answer.
For the disposition of these questions it is sufficient to say that
the answer was good on general demurrer. If the executor had
power to sell real estate for the payment of debts, a general allegation
that he did so sell as averred in the answer was sufficient, on
general exceptions, without alleging, so far as concerned the purchaser,
what particular debt it was that occasioned the necessity.
Williams v. Warnell, 28 Tex., 610; Frosh v. Swett, 2 Tex., 485;
Warner v. Bailey, 7 Tex., 519; Rule 17, Rules District Court. It
it were objectionable it could only be reached by special exception.
The finding of facts by the court was supported by evidence, and
its decision upon them has the same conclusive effect as the verdict
of a jury, and will not be disturbed unless clearly contrary to
or without evidence. Jordan v. Brophy, 41 Tex., 284. We therefore
deem the appellants' tenth assignment of error not maintainable,
complaining that the court erred in finding that, at the time
of the execution of the deed to Horner, on the 7th of February,
1877, the debts against the estate amounted to $1,373.13, and that
Marshall only had on hand but $464.25 rents, and only $350 worth
of other personal property.
It is assigned as error that the court erred in not giving plaintiffs
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/385/: accessed May 3, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .