explaining that testator's probable intent was to distribute his estate between two families and "benefit the class of persons constituting their respective families" because the will drafting attorney recollected testator requesting a will that would "`split it down the middle so they [the respective families] each get half . . .'" in the event of a common disaster
How later courts described this case
- explaining that testator's probable intent was to distribute his estate between two families and "benefit the class of persons constituting their respective families" because the will drafting attorney recollected testator requesting a will that would "`split it down the middle so they [the respective families] each get half . . .'" in the event of a common disaster
- relating conversations between the testators that occurred in the presence of the drafter
- relying on scrivener's testimony regarding testator's specific declarations of intention
- summarizing and approving the use of this standard when determining testator’s intent
Written by the judges who cited it.
The opinion
Sullivan, J.
(concurring in result). I agree with the result reached in the majority opinion but would not rest it on the doctrine of probable intent. To me, a proper construction of the written wills against the background of the undisputed facts and circumstances, leads me to the firm conclusion that the intent of the common disaster clause as it appears in each will was to divide each residuary estate equally between the two families. In other words, Rose Siegel and Ida Engle are mentioned as class or family representatives rather than individually.
Since Albert and Judith each intended and understood that the clause, as written, effected such a result, no change was made in the wills even though Rose died in 1967, some six years prior to the September 1973 tragedy. Therefore, construing the wills as written, I agree that the judgment of the Appellate Division should be reversed and that the residuary estates of Albert and Judith should be distributed one-half to Ida Engle and the other divided equally between Leo H. Siegel and Judith Siegel Baron.