
    James Dykes and Wife v. Frank Epperson and Wife.
    Gift of Land to Daughter — Devise of Remaining Estate.
    The testator gave the land in contest to his daughter and her children-for a home, and under that gift she occupied the place as her own for-more than twenty-five years; held, that a devise of his remaining estate-to his other children was not intended to include this property.
    APPEAL PROM CLARKE CIRCUIT COURT.
    April 17, 1867.
   Opinion op the Court by

Judge Robertson :

The facts in this case sufficiently conduce to the conclusion that the humble tenement in contest was given by the testator to his destitute daughter, Mrs. Epperson, for a home for herself and her children; that, under that gift, she occupied the place, as her own,, for more than twenty-five years without disturbance-, that the testator never renounced or intended to revoke the gift, by his will' or otherwise, and that, considering her right as sufficiently matured and fixed, he neither made actually or constructively any testamentary disavowal or revocation of it, nor intended to devise this property to any other person; and that^ therefore, the residuary devise of his remaining estate to others of his children was not intended to include the property in contest, which was prescriptively held to be no part of his estafe. And this conclusion is fortified by the fact that, if the residuary devise should be construed as embracing this tenement, the appellant, more-needy than any of the testator’s children, would be pretermitted except by tbe paltry bequest of $50. Under these circumstances-a court of equity ought not to help the appellants to frustrate the-father’s settled purpose. And thus make the richer still richer and the poorest still more poor.

It seem to us, therefore, that the judgment of the Circuit Court was right. Wherefore, it is affirmed.  