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
Clifford, J.
(dissenting). Even with the decent burial given by the Court to In re Armour, 11 N. J. 257, 271 (1953), I think I would not consign to the decisional graveyard the following from that ease:
The question is not what the testator actually intended, or what he was minded to say, but rather the meaning of the terms chosen to state the testamentary purpose * * *.
[Id. at 271.]
*298 While this statement no longer carries the dogmatic weight it once did, it retains value as a rule of construction. In the construing of a will the basic statutory policy (N. J. S. A. 3A:3-1 et seq.) of allowing the instrument to speak for the testator as of the date of death must be accorded great respect. I understand the court’s function to be to determine the testator’s intent from the language employed in the will; only if an ambiguity is shown does the doctrine of probable intent as developed in Fidelity Union v. Robert, 36 N. J. 561 (1962), and its progeny allow extrinsic evidence to be utilized to construe the document.
Mindful of the difficulties which are often present in determining what is or what is not an ambiguity in any instrument, I nevertheless approach this case with the conviction that the doctrine of probable intent should not be used to create an ambiguity in a will which the doctrine will then be called upon to resolve. I am afraid that is exactly what is happening here.
As I understand the operation of the doctrine of probable intent, an ambiguity in the instrument is the condition which triggers the doctrine’s application to change the result which would attend a literal application of the language of the will. Wilson v. Flowers, 58 N. J. 250, 263 (1971). An ambiguity is a “condition of admitting of two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time * * Webster’s Third International Dictionary (1961); cf. Allen v. Metropolitan Life Ins. Co., 83 N. J. Super. 223, 237-38 (App. Div. 1964), rev’d on other grounds, 44 N. J. 294 (1965).
I am unable to discern, anymore than could the trial judge, (as he put it) “any uncertainties of expression [or] latent ambiguities of expression within the testamentary writing * * * which would authorize departure from the result prescribed by N. J. S. A. 3A:3-14.” The problem as I see it is simply that the instrument omits the necessary language which would save from lapse a bequest to a pre *299 deceased legatee. It is this crucial omission which distinguishes the case from In re Cook, 44 N. J. 1, 7 (1965), relied on by the majority. In Cook, supra, the “contrary intention” required by N. J. S. A. 3A:3-14 to save from lapse the bequest to the predeceased legatee was found in the language of the will directing the gift to the legatee and his “heirs and assigns”. Similar language in the will under consideration would undoubtedly force a result in line with Cooh; however, such language is not present and the “contrary intention” required by the statute is likewise absent.
It seems to me that this is the classic situation the legislature had in mind when it enacted N. J. S. A. 3A:3-14 and we should heed its direction rather than rewrite the testator’s will. Having survived his mother by about 6 years, he had the opportunity to undertake that rewriting himself. The testator not having done so, I see no reason why this Court should gratuitously second guess him and perform that service.
Sullivan, J., concurring in the result.
For reversal — Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Schreiber and Handler — 6.
For affirmance — -Justice Clieeord — 1.