Ely v. Ely's Executors

The Ohahcelloe.

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 *49 able support for her, and only intended to add to it in case of a loss. What he meant by a comfortable support was the support which that property might give her, not-what she might imagine, after his death, was required for her comfort. He has clearly expressed this intention. The words of a will are rarely changed, not even “ and” for “ or,” and then only to effect the evident intent of the testator; never, to gratify the desires or wishes of a legatee, or to effect what might in itself seem more just or reasonable. A bequest of ten shares of bank stock, or $1000, to a son, would never be construed to give both, because, on the whole, it was right and reasonable that the testator should have given both. The only advantage in the use of these words is, that one or both bequests may be included, as the intention may be. Ho testator could safely express any intention if the courts, at their pleasure, could substitute words which Would change his directions.

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.