The opinion
Hehbk, J.
(dissenting). I concur in the judgment of Judge Price.
The rationale of the majority’s opinion is that in Yew Jersey a residuary or general devise of real or personal estate does not in itself operate as an execution of a power of appointment; that “[t]he testator must in some way express or indicate a conscious intention to execute it” and an existing intention, imperfectly expressed, may be “aided and supported by surrounding circumstances and their reasonable and logical implications,” and here “[a] multiplicity of considerations persuade us to the conclusion that Mrs. Byrd probably desired to appoint the trust fund for the benefit of her daughter.”
An intention may be imperfectly expressed, or not expressed at all, or there may have been no plan or design forming an intention to do or not to do a particular thing. And I hold the view that the will reveals no intent or purpose to execute the power of appointment, and to draw upon the cited extraneous circumstances as indicative of such an affirmative design by implication of fact is to ascribe a new testamentary disposition to the testatrix by parole evidence in disregard of basic law.
It is elementary principle in the construction of wills that the controlling consideration is the effect of the words as actually written rather than the actual intention of the testator independently of the written words; the question is not what the testator in fact intended, or what he was minded to say, but rather the meaning of the terms chosen *295 to state the testamentary purpose, and all the rules of construction and the use of extrinsic evidence are merely in aid of the fulfillment of the intention reasonably comprehended in the words; the words are to be assessed in the light of the surrounding facts and circumstances; the extrinsic evidence is to enable the judicial interpretive authority the better to discover the true sense of the words, and to uncover and resolve ambiguity, but not to import into the will an intention alien to the expression. In re Armour’s Estate, 11 N. J. 257 (1953).
While there is a presumption against partial intestacy, it is nevertheless the rule that “where there is a deficiency in a will the court may not amplify or enlarge it to supply a provision to express the supposed intention of the testator.” Guaranty Trust Co. of New York v. First National Iron Bank of Morristown, 8 N. J. 112 (1951). If the “legal effect of [the testator’s] expressed intent is intestacy, it will be presumed that he designed that intent since he is presumed to know the law.” Lawes v. Lynch, 6 N. J. 1 (1950).
Intention is the basic postulate of a construction affirming the execution of the power. Its execution depends upon the “intention to execute it, which intention must be found in [the] will either by express terms or by necessary implication; it is sufficient evidence of such intention, however, if the will shows that the donee had in view the subject of the power, and for this purpose extrinsic evidence of [the testator’s] circumstances at the time of the execution [the] will is admissible,” Camden Safe Deposit & Trust Co. v. Fitler, 123 N. J. Eq. 245 (Ch. 1938), affirmed Camden Safe Deposit & Trust Co. v. Frishmuth, 125 N. J. Eq. 169 (E. & A. 1939). And conjecture alone will not sustain a finding of an intention to execute the power. Guaranty Trust Co. of New York v. First National Iron Bank of Morristown, supra.
I do not find in the circumstances here a sufficient basis for the finding that the testatrix had in view the subject of the power and intended to exercise it in the execution of *296 her will, “as that the will includes something the testatrix did not have, otherwise than under the power, or that part of the will would be inoperative unless applied to the power.” Lippincott v. Haviland, 93 N. J. Eq. 585 (Ch. 1922). See also Farnum v. Pennsylvania Co., 87 N. J. Eq. 108 (Ch. 1916), affirmed 87 N. J. Eq. 652 (E. & A. 1917). Nor would the provision in the will “otherwise be ineffectual, or a mere nullity; in other words [have] no operation, except as an execution of the power.” Blagge v. Miles, 3 Fed. Cas., pages 559, 566, No. 1479, 1 Story 426, 446, 447 , 4 Law Rep. 256 (1 Cir. 1841). Compare, Meeker v. Breintnall, 38 N. J. Eq. 345 (Ch. 1884); Wooster v. Cooper, 59 N. J. Eq. 204 (Ch. 1900); Paul v. Paul, 99 N. J. Eq. 498 (Ch. 1926); Pennsylvania Co. etc. v. Morrell, 108 N. J. Eq. 188 (Ch. 1931); Lee v. Simpson, 134 U. S. 572 , 10 S. Ct. 631 , 33 L. Ed. 1038 (1889); Reeside v. Annex Bldg. Ass’n, 165 Md. 200 , 167 A. 72 , 91 A. L. R. 426 (Ct. App. 1933).
It is of no significance that the draftsman of the donee’s will was a practitioner of the law in Virginia, where, it is said, the rule is that the residuary clause of the will would operate as an execution of the power. The draftsman was not called as a witness; and there was no testimony from him or from any other source that the donee had this local rule of law in mind and had deemed the will an execution of the power, assuming that evidence of an obvious parole extension of the will would have been admissible, an untenable proposition. There is no basis whatever for this hypothesis.
The deceased donor, Byrd, was a lawyer of eminence in his profession, domiciled in New Jersey at the time of the making of his will, and long before; and he well knew the New Jersey requirement that there be an affirmative execution of the power to appoint, and that a general or residuary devise or bequest would not suffice. Although he did devise and bequeath the subject property to his stepdaughter, Mary Martin Black, in the event his wife predeceased him, he did not provide for an estate in remainder to his stepdaughter *297 upon the termination of the equitable life estate given to his wife, but he gave to his wife, if she survived him, the power to use the principal as well, and directed the trustee “to pay the principal as his wife shall appoint by her last will and testament.” It is also to be presumed that he intended that the appointment be made as ordained by the law of his domicile, and that he was aware a failure of appointment would give rise to intestacy. And it goes without saying that the donee’s intention to execute the power must be clear and manifest; such is an attribute, the very essence, of the Hew Jersey rule. Compare Wooster v. Cooper, supra.
And I am in accord with the conclusion below that N. J. 8. 3A :3-14 is not applicable. The case is not within the letter or spirit of the act.
I would affirm the judgment.
For reversal—Chief Justice Weintraub, and Justices Wachenreld, Burling, Jacobs, Francis and Proctor—6.
For affirmance—Justice Heher—1.