37 Tex. 146 | Tex. | 1873
Notwithstanding the judgment in this cause fails to show that notice of an appeal was given as required by law, yet the bill of exceptions sets out the fact, that notice of appeal to the Supreme Court was given in open court, and the presiding judge has signed the same as a true bill of excep
This suit was brought by appellant as the beneficiary under the will of Hilton Busby, deceased, against appellees, for the rents and profits of a certain tract of land, known as the former homestead of said Hilton Busby, deceased; and he claims that by certain provisions in the. last will and testament of the said Hilton Busby, this particular tract of land was charged, in the hands of the heir and devisee in the will, with the support and maintenance of the petitioner, during his natural life ; and he charges that the defendants have and hold possession of said land, and are converting the rents and profits thereof to their own use, in total disregard of petitioner’s rights under said will. And he prays for á judgment of the court, decreeing the rents and profits of said land, or so much thereof as may he adjudged equitable and right under the will, to petitioner during his life, and that defendants he held to account for the same. With an amended petition a copy of the will of Hilton Bushy was filed in the court as the foundation of the claim set up by petitioner. The defendants appeared and filed general and special exceptions to thev original and amended petition, all of which denied the right of plaintiff to have and maintain his suit, as set out in his petition. The exceptions were sustained by the court, and a judgment was rendered for the defendants, and the plaintiff now prosecutes this appeal.
The principal question presented in the record, for decision, is in regard to the legitimate and proper interpretation of certain clauses of the will of Hilton Busby, deceased, which refer
It is alleged in the petition, and admitted in the answer, that David Busby died, and that his estate, including the former homestead of Milton Busby, descended to his two sisters, Elizabeth Lynn and Melissa Daviss, and that they have sold a portion of that homestead to the other defendants below. And it is claimed in appellant’s petition, below, that the foregoing clauses of the will of Milton Busby created a charge upon th
This question has striking parallels in many cases referred to in Hill on Trustees, pp. 65, 66, and 67, -and the whole question appears to have been settled by an inquiry into the real intent of the testator, which intent may he expressed as well by the word “ wish,” “ desire,”" or “ command,” and
Reversed and remanded