20 N.J. Eq. 43 | New York Court of Chancery | 1869
The only question is the construction of the will of Caleb H. Ely. It arises upon a direction in the will in these words: “ And I do order that my executors do deposit, as soon as practicable after my decease; the sum of $1000 in the Newark Savings Institution, the interest of which-is to be added to the principal during the natural life of my said wife Selina, or as long as she remains my widow, for her use, in case she should lose any part of her property before mentioned, and need more than she has of her own to support and maintain her comfortably; then, and in that case, so much of this money deposited and accumulated as she shall need for her comfortable support, I order my executors to draw and pay to her, yearly or half yearly.”
The complainant has lost none of her property, but needs more than she has of her o$n to support herself comfortably. It is contended on her part that the word “and” should here be construed “ or,” to effect the intent of the testator. As the will is written, R is clear that she can only have this fund in case she both loses part of her own property and needs this.
There is no power to change the words in a will, unless such change is necessary to effect the intent of the testator apparent on the face of the will, or from surrounding circumstances. There is nothing here on the face of the will, or in the facts to which the direction applies, to ihdicate that the testator did not intend what he has said. He thought his wife’s property sufficient for what he judged a comfort
The intent is so obvious in this case, that I cannot take out of the estate the costs of the complainant in bringing this suit.
Let the bill be dismissed, and each party pay their own costs.