Elliott v. Topp

Mississippi Supreme Court
Elliott v. Topp, 63 Miss. 138 (Miss. 1885)
Campbell

Elliott v. Topp

Opinion of the Court

Campbell, J.,

delivered the opinion of the court.

^It is manifest that the 'testator intended equality among his children as objects of his bounty, and thought he was providing by his will to secure it, but he assumed the sufficiency of his estate, and committed the error—fatal to his desire for equality, because of changed conditions—of charging the residuum of his estate in favor of certain of his children, and postponing the others until this charge was satisfied. Could he have foreseen what would occur, he would not have done this,, we are sure, but the duty of courts is to execute a will as made, and not to make one for the \testator. What he plainly said must be done should be done, although it may be seen that he would not Have said it if he had known the conditions in which his direction would have to be applied and executed. We follow the will in holding that the .appellants must be postponed until the bequest to the appellees shall be satisfied.

Affirmed.

Reference

Full Case Name
Sophia Elliott v. R. D. Topp
Cited By
1 case
Status
Published
Syllabus
Wii/l. To bo executed as written. Mistake by testator. Intention. The plain provisions of a last will and testament must be executed as written, even though it be evident that the result W'ill not be what the testator contemplated or desired; as, where a testator, who died in 1862, charged his estate, in favor of his adult children, with legacies to be paid before anything should be given to his minor children (he believing his estate ample to make provision for all), this provision must be carried out, though, by reason of the war, his estate has been so reduced that the payment in full of the legacies to the adults will leave nothing for those who were minors.