46 Tex. 600 | Tex. | 1877
When this case was before this court on appeal formerly, a construction was given to the will of appellee’s brother, under which he claims a beneficial interest in a certain tract of land, to the extent of a support for himself during bis life. (Busby v. Lynch, 37 Tex., 146. The court then held, that such portion of said tract of land as was over and above that part of it which was necessary to make the share of David Busby equal in value to the shares of each of his sisters, was, by the will of Milton Busby, charged with the support and maintenance of appellee Edward Bushy. (Id.)
The District Court, afterwards, in following this construction, directed the ascertainment of the necessary facts by the jury, and decreed that an amount of the five hundred and . fifty nine acres, equal in value to five eighths of the whole of it, should he charged and incumbered, so as to pay from the net proceeds of its rents and profits the sum of three hundred dollars annually for his support, and appointed a trustee to manage the said property, after it should he set apart by commissioners named for that purpose.
We are not disposed to unsettle the construction of the will, given to it by our predecessors in office, upon which tins portion of the judgment and decree of the District Court is founded, in fixing and decreeing an apportionment of-that part of the land which should be held charged with, and liable to, the necessary support of Edward Bushy, and that which should not be so charged, it being a contingent incuin
It is obvious, from the recovery of the amount annually, in future, as well as of the gross amount for the past support, that the court below, on the last trial, in ascertaining the interest of Edward Busby, construed the will to give to Mm á fixed sum of money annually, to be determined by what should be found to be an adequate support and maintenance, to be paid to Mm out of the rents and profits of said land, whether he used or needed that amount for Ms support or not, and only that amount during any one year, whether he needed more than that for Ms support and maintenance or not. We do not understand that to have been the intention
Edward Busby was deaf and dnmb, and had long lived with his brother Milton Bushy, the testator, as a member of his family, and, although he was an able-bodied and intelligent man, ingenious in mechanism and industrious in his habits, it is not shown that he had ever sought to make and accumulate property, so as to make a provision for his own maintenance, in old age or in protracted sickness, or in any other misfortune or necessity.
Milton Bushy had a minor son, David Bushy, and two married daughters, when he made his will. He had previously given lands to his daughters, which the jury estimated to have been worth, at the time the will was made, $3,000 each. He expressed his desire in his will, that his children should have equal portions of his property, except in respect to so much thereof as he deemed necessary to secure a support to his brother. To secure such provision, he gave to his son David Ins negro man Ralph, and also his homestead of five hundred and fifty-nine acres of land, estimated by the jury to have been worth, at the time of making the will, $8,000. And he stated, in the sixth item of his will, that the divise of this land, which was so much more valuable than either of the tracts that had been previously given to his daughters, was “ in consideration of the landed interest already given to my other children, Elizabeth Lynn and Malissa Davis,” meaning to make his share of the land equal to each of theirs, “ and as a compensation for sustaining and supporting my brother, Edward Busby, aforementioned.” Thus it is seen, that a much larger share of the property, to wit, the slave Ralph and the excess in amount and value of the land, was given to his son, in order to have his brother amply provided for.
It is evident, that the main object for malting the will at all was to provide for his brother a home with his children, as part of the family, and to so dispose of his property as to secure that object, without imposing a pecuniary burden upon them, and without his brother feeling it to be so. It never entered into the thought of the testator, in malting tMs will, to fasten upon the estate devised to his son a charge or incumbrance of a particular amount of money annually, or of limiting the support of Ms brother to a particular amount of money. Had such been the provision designed, it would have been in the nature of an annmty, to be paid to his brother, wMch might be disposed of by Mm for other purposes than a support, if not needed for that, or which would have to answer for a support, however much more might be needed, in case he was overtaken by sickness, or permanent disease, or other infirmity, which might swell Ms necessary support to more than that amount durmg one year.
If Edward Busby has left the homes of those children of Milton Busby and made a support for Mmself, or has been supported by some one else, that is a state of case not anticipated, and provided for in the will. His leaving without their fault would not render them liable for an amount that might be estimated to be sufficient to support Mm in the homes of other people. Here is a bounty provided for him, with its mode of enjoyment prescribed in the will. He is of lawful age, and of sound mind, and under no legal restraint,
The judgment is reversed and cause remanded.
Reversed and remanded.