Williams v. Ball , 2 Miss. Dec. 536 ( 1881 )

Opinion.

Campbell, L:

We cannot adopt the view that the letter of Dr. Williams, which is the subject of controversy, ivas to be operative only in the event of his death during the epidemic prevailing when it was written. It is probable that the danger which threatened him suggested to his mind the propriety of committing his child.to the care of his father and induced him to write the letter, but there is nothing in it indicating that it was limited to any particular period, or conditional on anything but the death of the writer, whenever it should occur. It is not admissible to interpolate in the letter words to limit its operation or make it conditional. The form of expression used, implying uncertainty as to an event certain in its character, may be' accounted for by the circumstances which occasioned it, and cannot be held to change the language employed to express the will of the writer. That language is plain and clear. It expresses the wish of the writer that his father should “take, adopt and raise” his child in the event of his death. While it is true that the letter must stand or fall as a testamentary act by itself, it is also true that the action of the writer of it, in taking a copy of it in 1877 and returning it to the custody of his father, is a weighty circumstance to show the value attached to it by the writer, and that he intended it to serve a purpose in the future. The writing should be admitted to probate as the will of Dr. Williams, and that is all that we decide in this case.

Whether the appellant, on his qualification as the testamentary guardian, will be entitled to the custody of the child, and can obtain it, is not now presented for decision.

The decree dismissing the petition for the probate of the letter of Dr. Williams is reversed and the letter directed to be admitted to probate, and the cause is remanded to the Chancery Court of Lauderdale county for proceedings in accordance with this opinion.