Cases argued and decided in the Supreme Court of the State of Texas, during the Austin term, 1885, and the early portion of the Tyler term, 1885. Volume 64. Page: 29
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1885.] HAWES AND DUNCAN V. FOOTB. 29,
Opinion of the court.
the subjects of bequest are comparatively insignificant in value
viewed with reference to the only cattle which the testator owned
when he made the will, and which cattle it is supposable he had in
his mind at that time.
A cart is first specified. Useful to a family needing means
wherewith to purchase one, but comparatively insignificant in value.
All of the cattle he owned, including his oxen, would have been df
the value of but a few hundred dollars; but the testator excepts his
oxen, thus leaving only stock cattle to answer to the bequest when
it was written, and their value would perhaps not have exceeded
$200. As to horses, it does not appear that the testator contenmplated
anything more in that part of his wiil than the possible con.tingency
of his loaning horses to his friends, the Footes, some time
in the future, and to provide as to such, that they might keep thelti
after his death. The specific devises and legacies in the will to
,those who seem to be strangers in blood to the testator are small
and inconsiderable as compared with those to his cousin IBetti
'Ashby, and to the children of his cousin Bur Albert IIHarison,
whom he constituted residuary legatees, and whose share probably
exceeded that of all the others combined. To Bettie Ash1by he devised
the Bear CCamp plantation, appraised at $3,000; neatly l1 the
other real estate fell into the residuum of his estate, and his relatives,
the Harrison children, took it. Mrs. Foote was the widow of
the testator's second cousin; her children would therefore be cousins
of the third remove. "It is common to gather some aid, in giving
a definite construction 'to a particular legacy, from those legacies
which immediately precede and follow it." See 2 Redf. Wills (4th
ed.), top p. 380. " There is no question but errors in the description
of the subject-matter of the bequest may be corrected in the samrn
manner and to the same extent that any other mistakes in written
instruments may be set right. . . And in applying the words
of the will to the subject-matter, we must look through the list of
testator's estate, and select that portion which is best designated.
And in 'this mode, by the aid of extraneous evidence, which is
properly receivable, there will, in general, be very little difficulty it
arriving at the 'testator's intention with reasonable certainty."
Redf. on Wills, top p. 124.
From the whole context of ithe will, and from the-extraneous circumstances,
we think it is fairly deducible that the testator contemplated
and meant to give nearly all of his property to the kindred
whom he designated in the will, and that hedid not mean or intend
'to give the Footes any great or considerable portion of his 'estate.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the Austin term, 1885, and the early portion of the Tyler term, 1885. Volume 64., book, 1886; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28510/m1/53/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .