Gardner v. Gardner

6 Paige Ch. 455

• Court: New York Court of Chancery
• Decided: April 18, 1837
• Status: Published

Opinion

The Chancellor.

The vice chancellor is clearly right in the construction which he has given the will of .Tames Gardner. If the court does not resort to some technical construction for the mere purpose of defeating the manifest intention of the testator in this case, there cannot be a doubt that Charles Gardner was entitled to the whole interest which would otherwise have been payable on the mortgages down to the time of his death, for his own support, and to assist him'in bringing up his minor children. The previous bequests, in general terms, of one half of all his personal estate to his widow and the other half to the children of his brother, must be controlled by this subsequent clause, so as to give to each one half of the principal sums due on these bonds and mortgages, to be paid at the death of Charles. And as the complainant has brought this appeal for her own benefit, after a decision against her which ought to have been satisfactory to her counsel, she has no claim to be excused from the payment of the costs of the appeal, which costs must be charged upon her personally.

The decree of the vice chancellor is therefore affirmed, with costs.