Lynn v. Busby

Citations

• 46 Tex. 600

Syllabus

<p>1. Construction of will.—B. died in 1862, leaving a will, in which he made his three children, his executors and equal heirs. He gave, however, to his son D. a negro, in addition to his otherwise equal share, to compensate him for maintaining E. B., a deaf brother of the testator. In the next clause of the will, he expressed the wish that his son D. would take especial care of E. B. during the latter’s life; and if his son D. should die before his brother, E. B., he desired that his other two children, E. L. and M. D., should take charge of and provide for his brother, E. B., while he lived. The remaining clause of the will provided, “ it is my wish that my homestead and five hundred and fifty-nine acres of land, with the improvements thereto attached, shall be set apart to my son D., extra of his interest in the remaining portion of my estate, in consideration of the landed interest already given to my ocher children, and as a compensation for maintaining of my brother E. B. as aforesaid.” Suit was brought by E. B., for the rents and profits of the homestead, in which it was claimed that it was charged in the hands of the legatees with the support and maintenance of E. B., during his natural life: Held—</p> <p>1. The will, properly construed, must be regarded as conveying the testator’s desire for the maintenance and support of his brother E. B., as he had been previously provided for by the testator himself.</p> <p>2. It was the intention, that E. B. should be provided for as a member of the family, without imposing a pecuniary burden on the heirs, in the shape of a charge or incumbrance on the estate, or of limiting the support of E. B. to any specific amount.</p> <p>3. If E. B. left the homes of the heirs, provided for him in the will, without their fault, they would not become liable for an amount sufficient to support him elsewhere.</p> <p>4. A judgment making an annual allowance of a stated sum of money for E. B. in the future, and giving him money for his