The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1896-04-16

ct al. VS.. Edloff. from Dallas two mo-
tions).
Cause ubmitted-NIiller ct al. VS.. Sui
Ivan, from Llano.
Motion ubmitted-Galveston Tarris-
burg and San Antonio Railway Company
VS.. The State, from Brewster, for re-
hearing.
In City of Corsicana VS.. Kerr ct al,
from Navarro, the judgment of the court
below is reversed and Judgment is rem
dered for the defendant in error.
OPINIONS.
Following are the opinions delivered by
the supreme court yesterday:
). Y. Kilgore VS.. Northwest Texas Bap-
fist Educational Society; certified ques-
ton in a case in favor of plaintiff below,
The Educational society.
Plaintiff below instituted this suit to
recover damages of the defendant. Kill
gore, for his alleged breach of a build
ing contract. By the terms of this build
ing contract, Kigore was to be paid in in
stallments as his work progressed accord
ing to the estimates to be made by an ar
| chitect. The correctness of the archi-
| tect's estimates was the issue in the case
Question-"Was it proper to instruct
the jury that the presumption was in
favor of the correctness of the architects
| estimates?'
We are of the opinion that the charge
was correct. Under firmly established
rule of law, the parties having agreed
upon the estimates of the architect as
the work progressed, as the means of de-
| termining the extent of the performance
and the amount to be paid from time to
| time under the terms of the contract. such
estimates when made established between
the parties the facts therein found. They
were not merely evidence from which the
court or jury might have found or ought
to have found such facts, but they were
themselves findings of such facts by the
architect just as awards or judgments are
| findings Of facts of Indebtedness therein
stated by arbitrators or courts
The only question for the jury was
whether or not defendant had shown
| such facts as would in law destroy the
| findings of the architect. 81 s. W.. 292.)
We therefore answer that it was not
| error to instruct the jury that the pre-
sumption was in favor of the correctness
| of the estimates.
Opinion by Denman, j.
Louise II. Cleveland ct al. VS.. Lander
Cleveland ct al; suit for partition of GER
tain property, the estate of Charles l..
Cleveland, deceased, from Galveston
county, First district. Judgment of the
court of civil appeals reversed and that
of the trial court affirmed.
This suit was instituted by the chill.
dren of Chas. l.. Cleveland, deceased,
and enc of his grandchildren against w.
b. Lockhart, executor, and Louise Har-
die Cleveland, eXecutriX, praying for
construction of the will and a partition
of the estate of plaintiffs and the defend
ant, Louise Cleveland
The parts of the will material to the
question under consideration are as fol-
lows: Il give to my beloved wife, Louise
Hardie Cleveland, yearly income of
$1,000 to be taken out of my estate by
my ext cutors. The rest of my property
heretofore undisposed of | give, devise
and bequeath to my beloved wife, Louise
Hardie Cleveland. Jessie w.. Sidney, Will
lie and Oliver Cleveland in equal pro-
portions, share and share alike" Does
this will give to Mrs. Cleveland yearly
allowance for her life or only during the
continuance of the administration?
First-The intention of the teStator,
as shown by the entire instrument must
govern, even if it results in what we
might consider absurd or unjust conse-
quences.
While parole testimony is not admiSsi-
bic to vary or contradict the terms of
the will or to supply that which has been
omitted. vet if the meaning of the words
used read in connection with other parts
of the instrument be doubtful, the sur
rounding circumstances may he consid-
cred to throw light upon the matter and
enable the court to arrive at what the
maker of the instrument intended by the
use of the language under consideration.
The language of the first clause of the
will quoted above. if not qualified by
other provisions of the instrument might
be held to give the wife an income OF
$4,000 for each year during her life. But
in arriving at the intention of the tes-
tator, the entire will must be considered.
The yearly income provided for is to be
taken out of the estate by the executors.
Under the law an Independent executor
would continue in the discharge of his
duties imposed by the will only so long
as the nature of the trust required. No
provision is made in this instrument for
the continuance of the executors i'll office
beyond the time necessary for the admin
istraton of the estate in the ordinary
mod, and when the estate was fully ad-
ministered the legatees had the right to
demand a distribution. IT, however, the
intention was to create a trust i'll the eX-
ecutors for the benefit of Mrs. Cleveland
during her life. the duration of the eNecu-
torship would be limited only by the con-
of the trust, and would continue
so long as it might be necessary i'll order
to execute the trust
The fact that such continuance OF the
was not provided for in CON
STRUNG the clause which it is
claimed created the trust for
life. If such unusual continuance in
office had been anticipated by the testa-
tor. it would probably have been eX-
pressed in the will. The tesiduary |
clause of the will directs the, distribution i
of the property remaining. after the pay
ment of debts and specific requests, be-
tween the children of the testator and
Mrs. Cleveland. This distribution was
intended to be made during the life time
of the wife. otherwise she could not par
ticipate. and, if made according 70 the |
terms of the will. all the estate would be |
disposed of. which would leave nothing |
in the hands of the executors from which |
the yearly income could be taken: nor
would it leave anything which could be
:,,.o.tod 70 raise that yearly income If |