In 1885 Thоmas (Jutland died, leaving a will which was duly probated, and had several children, and was seized of the land in controversy, having-put into the possession of some of his children certain other property and devised the same in fee to them. He then lived on a tract of land, and by item six he devised to his son Cornelius in fee a part of the tract of land, and-in item seven he devised the balance of the tract in fee to-his son Elijah. In item eight he says : “ In consideration of the property I have given to Elijah and Cornelius, they are to have the care of and support Thomas, and it is. my will that he should have his choice which of them he will live with, and the other pay' half thе expense ” The plaintiff Thomas P. Outland is the one called “ Thomas in the eighth item, and is a person non compos mentis and appears herein by his next friend Robert S. Parker, who is also hеre as administrator of A. A. Parker, the late-plaintiff herein.
Thorn'as by agreement hаs lived usually with his sister, wife of A. A. Parker, and Elijah has paid all the while-one-half of the expense of the board of Thomas, and this, action is by him to recover the other hаlf against Corne- *140 lins and those defendants who have purchased his part of the lаnd, and to have the land sold to satisfy the same. 'The defendants admit the personal liability of Cornelius, but deny that his legacy for support is a lien on the land, •and especially now that it is in the hands of the purchasers, and that is the main question presentеd to this Court.
The universal rule pervading the construction of wills is that the intention of the testator shall govern its interpretation in each case. Sometimes there аre serious diffi■culties in ascertaining the intention, but.these difficulties ■do not disturb the rule. To arrive at the intent, it is proper to look at the whole instrument and the condition of the parties and the surrounding circumstances, as they are supposed to bе in the mind of the testator at the time of the disposition of his property. It apрears that he made a secure and complete title to the legaсies of his other children, and it would seem unreasonable and unnatural that he intended to leave the legacy of his most unfortunate child any less secure. If the contention' of the defendants be true, then insolvency or bankruptcy might defeat the рlaintiff’s legacy, and at this time the homestead exemption might have the same еffect. These possibilities are presumed to have been understood by the tеstator.
In
Laxton
v. Tilley,
In
Thayer
v. Finegan,
*141 The statute оf limitations does not bar the claim of' Thomas, by reason of the saving clause in The Code, Sec. 163.
It wаs argued that the plaintiff’s claim had been abandoned. Thomas was incapаcitated to abandon any claim or right by any act- or declaration, and the lapse of time was not'sufficient to have that effect.
Thompson
v.
Nations,
The land is charged with thе legacy in the hands of the purchasers, because the jury find in the 14th issue that they purсhased with actual notice. If this had not been found, they took the land with constructivе notice, as they derive their title under the will creating it.
Christmas
v. Mitchell,
There were several exceptions to the admission of evidence and to the judgment. In the view we havе taken, these exceptions are unimportant and are overruled. The judgment allows $211.25 of the recovery to be paid to Robert Parker, administrator of A. A. Pаrker. This seems to be an arrangement among the plaintiffs to equalize the burden, аpproved by the Court,- and does not affect the defendants. Sitting as a Court of Equity, if we could see in this allowance that any just maxim of the law had been violated оr that any injustice had been done to the interest of a non compos mentis person, we, ex mero motu, would correct it, as in cases where the interest of infants is under consideration.
We think the allowance of $200 as an attorney’s fee in this case is too much, and it is reduced to $100.
Moore
v. Shields,
Modified and Affirmed.