Smith v. Smith

OPINION

in which HOUSTON M. GODDARD, P.J., and HERSCHEL P. FRANKS, J., joined.

Ethel Rogers Smith (“Ethel”) 1 executed a will in 1991 that provided that her property would go to her husband, if he survived her, and if not, would be split equally between her two sons, Charles Smith (“Charles”) and Jerry Smith (“Jerry”). Ethel’s husband predeceased her. Ethel executed a Durable Power of Attorney with Springing Clause in 1994, naming Jerry as her attorney-in-fact. Although the power of attorney never became operative under its terms, Ethel and Jerry treated it as though it were operative and Jerry…