This is a will construction case in which the Appellate Division filed a comprehensive opinion. See Fidelity Union Trust Co. v. Robert, 67 N. J. Super. 564 (App. Div. 1961). We granted certification on applications by Peter F. Crossman and Edward F. Cavanagh, Jr., executor of the estate of Edith Flood Cavanagh.
Since the pertinent provisions of the will and the attendant circumstances, as well as the later factual occurrences and legal proceedings, are sufficiently set forth in the Appellate Division’s opinion, we shall not restate them here except to such limited extent as may be found necessary. Nor shall we deal at any length with issues which have been disposed of to our satisfaction by the Appellate Division. Thus we need do little more than express agreement with its holding that, under the circumstances, the affidavit by Peter F. Crossman (submitted by consent in lieu of testimony), was admissible in evidence and was properly to be considered insofar as it furnished information as to the situation surrounding the testator Peter F. Flood at the time he executed his will. See 67 N. J. Super., at p. 573; cf. In re Fox, 4 N. J. 587, 594 (1950); Zwoyer v. Hackensack Trust Co., 61 N. J. Super. 9, 12 (App. Div. 1960); 5 N. J. Practice (Clapp, Wills and Administration) §§ 191, 196, 198 (3d ed. 1962). Similarly we express agreement with its position that the judicial function in construing the will was to ascertain and give effect to the “probable intention of the testator.” See 67 N. J. Super., at p. 572; cf. Bank of New York v. Black, 26 N. J. 276, 286 (1958); In re Klein, 36 N. J. Super. 407, 419 (App. Div. 1955) (concurring opinion); and Simes and Smith, The Law of Future Interests, § 465, p. 452 (2d ed. 1956), where the authors point out that “when we say we are determining the testator’s intent, we mean his probable intent.” See also Morristown Trust Co. v. McCann, 19 N. J. 568, 572 (1955).
It may here be noted that, in ascertaining the subjective intent of the testator, courts will give primary
The readiness, as indicated by Blade, to strain towards effectuating the probable intent of the testator, represents a wholesome judicial attitude which finds ample expression in adjudications here and elsewhere. See Watson v. Brower, 24 N. J. 210, 215 (1957); Zwoyer v. Hackensack Trust Co., supra, 61 N. J. Super., at p. 12; In re Upjohn’s Will, 304 N. Y. 366, 107 N. E. 2d 492, 495 (Ct. App. 1952); Shepherd v. Peratino, supra, 182 F. 2d, at p. 386. Earlier cases where the courts carried forth the testator’s probable intent, even though it meant departing from the literal terms of the will, may be found among the decisions cited by Judge Clapp in In re Devries, 36 N. J. Super. 29, 35 (App. Div. 1955), and by Vice-Chancellor Woodruff in Bottomley v. Bottomley, supra, 134 N. J. Eq., at p. 291. In the Bottomley case the Vice-Chancellor said:
“The power of this court to effectuate the manifest intent of a testator by inserting omitted words, by altering the collocation of sentences, or even by reading his will directly contrary to its primary signification is well established. This power, when necessary, is exercised to prevent the intention of the testator from being defeated by a mistaken use of language. The question presented is simply this: Will the court execute the clear intent of the testator not fully or clearly expressed in a will, or will it by a strict technical adherence to the form of words and their literal meaning suffer the intention of the testator to be defeated? Scarborough v. Scarborough (Court of Chancery), 134 N. J. Eq. 201; Van Houten v. Pennington (Court of Errors and Appeals), 8 N. J. Eq. 745, 749. In the exercise of this power and the discharge of its responsibility, this court has frequently construed technical legal words contrary to their technical meaning. Some of those cases are: Den ex dem. Blackwell v. Blackwell (Supreme Court), 15 N. J. Law 386; Stokes*567 v. Tilly (Court of Chancery), 9 N. J. Eq. 130; Aitken v. Sharp (Court of Chancery), 93 N. J. Eq. 336, 346; 115 Atl. Rep. 912; Campbell v. Cole (Court of Chancery), 71 N. J. Eq. 327; 64 Atl. Rep. 461; affirmed, 73 N. J. Eq. 384; 67 Atl. Rep. 1052; First National Bank v. Levy (Court of Chancery), 123 N. J. Eq. 21; 195 Atl. Rep. 820, application to amend decree denied, 126 N. J. Eq. 493; 9 Atl. Rep. (2d) 789; affirmed 130 N. J. Eq. 220; 21 Atl. Rep. (2d) 788.”
See In re Fabbri’s Will, 2 N. Y. 2d 236, 240, 159 N. Y. S. 2d 184, 187, 140 N. E. 2d 269 (Ct. App. 1957).
This liberal judicial attitude finds comparable expression in the many recent cases in our State which have dealt with the construction of other instruments such as contracts and legislative enactments. See, e. g., Atlantic Northern Airlines, Inc. v. Schwimmer, 12 N. J. 293, 301 (1953); Tessmar v. Grosner, 23 N. J. 193, 201 (1957); Dvorkin v. Dover Tp., 29 N. J. 303, 313 (1959); State v. Provenzano, 34 N. J. 318, 322 (1961). It is sometimes said that courts have less latitude in the construction of these other instruments than they have in the construction of wills (see Wise v. Potomac Nat. Bank, 393 Ill. 357, 65 N. E. 2d 767, 771 (Sup. Ct. 1946); 4 Page on Wills 8 (Bowe-Parker Revision 1961); cf. 5 Clapp, supra, § 196, p. 303); in construing these other instruments, courts may be confronted with significant problems of reliance and the troublesome goal of effectuating the common intent of different parties whereas in the construction of wills, there are fewer problems of reliance and the goal is the effectuation of the intent of the testator alone. See 4 Page on Wills, supra, at pp. 2, 7; Simes and Smith, supra, § 462; cf. Corbin, Contracts, § 538 (1960). Nevertheless, in construing contractual instruments, our courts will broadly search for the probable common intent of the parties, will consider their relations, the attendant circumstances and the objectives they were trying to obtain, and will endeavor to find a reasonable meaning "in keeping with the express general purpose.” See Tessmar v. Grosner, supra, 23 N. J., at p. 201. In construing legislation, our courts will with equal breadth search for the probable legislative intent and en
Since the goal is the ascertainment of the testator’s probable intent in this particular will construction case, precedents involving the construction of other wills have no great force. See Greene v. Schmurak, supra, 39 N. J. Super., at p. 399; Hicks v. Jones, 138 N. J. Eg. 280, 283 (Ch. 1946); 5 Clapp, supra, § 191, p. 280; cf. 4 Page on Wills, supra, § 30.5. Similarly, canons of construction which are largely designed to serve as aids in ascertaining the testator’s probable intent have no controlling force. See Greene v. Schmurak, supra, 39 N. J. Super., at p. 400; 4 Page on Wills, supra, § 30.2, p. 7; cf. In re Fabbri’s Will, supra, where the court pointed out that “all rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy.” 2 N. Y. 2d, at pp. 239-240, 159 N. Y. S. 2d, at p. 187. In City of Clifton v. Zweir, supra, Justice Hall, in dealing with the interpretation of a legislative enactment, made comments which have some pertinence here. He noted that the goal is to ascertain the intent of the Legislature and that all canons of construction are subservient to that goal; that the issue may not be resolved by “mechanically selecting and applying a canon or maxim of statutory construction”;
Peter E. Elood’s will was executed on April 15, 1905 and he died on April 5, 1906. He was survived by his wife Elizabeth, four daughters, Mabel, Margaret, Edith and Grace, a grandson Peter E. Crossman, who was the son of Mabel and was then 15 years of age, and a grandson Henry E. Bobert, who was the son of Grace and was then a baby. When the will was executed Mabel had already divorced her husband and she and her son had gone to live with her parents. Mr. Elood treated his grandson Peter as a son and wanted to adopt him. He sent him to Newark Academy and planned to send him to Princeton. Mabel never remarried and Margaret never married. Edith and Grace were married about 1903. Edith never had any children and Grace’s only child was Bobert who was born about 1904 or 1905. Mr. Elood had “a horroT about women having money,” believed that they should have “an adequate income” but was afraid that their husbands “would separate them from any principal they had.” He had a “very low regard” for his sons-in-law and his overriding concern was for “the happiness and well-being of his wife, children and grandchildren.”
His will furnishes ample evidence of this concern and of his deliberate efforts to discharge it fully. After directing, in the first paragraph, that his debts and funeral expenses be paid, he gave, in the second paragraph, all of his property to his executors and trustees to pay the income to his wife Elizabeth for life; upon her death, one-fourth of the income was to be paid to each of his four daughters; upon the death of any daughter leaving issue surviving, the income was to be paid to the issue until they attained 21; and upon reaching that age the issue were to be paid the one-fourth share of the estate. In the third paragraph of
“In the event of the death of any one of my daughters without leaving issue her surviving, it is my will and I direct that the one-fourth share of the income bequeathed to each, shall be paid to the surviving daughter or daughters, in equal shares, and in the event of the death of any one of the children of any one of my daughters, that the share of the one-fourth of the income of my estate of such deceased child shall be paid to the surviving brothers and sisters of such deceased child, and in the event of the death of all the children of any one of my daughters before attaining the age of twenty-one years, without leaving lawful issue, that then the share which such child or children would have received shall be paid to the child or children of any one or all of the surviving of my said daughters.”
When Mabel died in 1931 leaving her son Peter, then over 21, the remaining trustee administering the trust turned over one-fourth of the estate to Peter. Thereafter Margaret, Edith and Grace each received one-third of the income until the death in 1936 of Margaret who died without issue. After Margaret’s death, Edith and Grace shared all of the income until Edith died in 19-58 without issue. All parties concede that following Edith’s death, and until her own death in 1959, Grace was entitled to receive all of the income, with the possible exception of the one-sixth share of the income which became additionally payable to Edith following the death of Margaret. As to that one-sixth share, the executor of Edith’s estate contends that it never became payable to Grace but passed to Edith’s estate. The Appellate Division rejected this contention and we agree with its action. See 67 N. J. Super., at pp. 584-586. The design of the will sufficiently evidences the testator’s broad general purpose that where, as here, daughters died without issue, their income was to be distributed among the surviving daughters. Thus after Margaret’s death Edith and Grace properly shared the income including Margaret’s income. In effectuation of the testator’s purpose, Grace was entitled after Edith’s death without issue, to Edith’s in
When Mabel died in 1931 leaving her son Peter, then over 21, Peter was properly given a one-fourth share of the original trust corpus of the estate. When Grace died in 1959 leaving her son Henry, then over 21, Henry became entitled to a one-fourth share. This much was not disputed but a dispute did arise as to the remaining two-fourths of the corpus which did not go in normal course to issue of Margaret and Edith because they died without issue. The trial court held the two-fourths of the corpus passed by intestacy. This position was rejected by the Appellate Division which held that they were disposed of by the final clause of the third paragraph of the will which directed “in the event of the death of all children of any one of my daughters before attaining the age of twenty-one years, without leaving lawful issue, that then the share which such child or children would have received shall be paid to the child or children of any one or all of the surviving of my said daughters.” We agree with the Appellate Division that the testator intended to leave his estate to his wife, his children and their issue, that he did not intend to die intestate but attempted to take care of all contingencies, and that the final clause of the third paragraph may be read liberally as referring to the corpus in dispute. See 67 N. J. Super., at pp. 574-576; cf. In re Fabbri’s Will, supra, 2 N. Y. 2d, at p. 243, 159 N. Y. S. 2d, at p. 190:
*572 “A testator, by the act of the making of a will, casts grave doubt on any assumption that he expressly intends to chance dying intestate as to any portion of his property. Indeed, the law has taken cognizance of this teaching of common experience and crystallized it into a presumption, expressed in various terms, but requiring essentially that the courts favor a construction which avoids partial intestacy and adopt one which results in a complete disposition of the estate. Haug v. Schumacher, 166 N. Y. 506, 514—515, 60 N. E. 245, 246, supra; Lewis v. Howe, 174 N. Y. 340, 346, 66 N. E. 975, 977, 1101. This presumption against intestacy is particularly weighty where the gift, as here, is made out of the residuary estate. Matter of Hayes’ Will, 263 N. Y. 219, 225, 188 N. E. 716, 718. The opinion in the Bayes case, 263 N. Y., at page 225, 188 N. E., at page 718, quotes the following forceful statement of the rule: ‘The idea of anyone deliberately purposing to die testate as to a portion of Ms estate and intestate as to another portion is so unusual in the history of testamentary disposition as to justify almost any construction to escape it. 2 Redfleld on Wills (3d Bd.) 235.’ ”
See Barrett v. Barrett, 134 N. J. Eq. 138, 142 (Ch. 1943); Bankers Trust Co. of N. Y. v. Greims, 115 N. J. Eq. 102, 114 (Ch. 1934), affirmed 117 N. J. Eq. 397 (E. & A. 1935).
In the prior clauses of the third paragraph the testator expressly referred to income whereas in the final clause there was no express reference to income. After setting forth the contingency of the death of all of a daughter’s children without issue and before attaining 21, the testator referred to the “share” which the children “would have received.” In its context and background, we may readily gather from this language, as did the Appellate Division, that the testator had in mind the share of the corpus which the children would have received if they had attained 21. See 67 N. J. Super., at p. 576. Although the final clause expressly referred to the death of a daughter whose children died before attaining 21, it did not expressly refer to the death of a daughter who never had any children. The Appellate Division found that the clause applied equally to the latter contingency and we agree. See 67 N. J. Super., at p. 579. It is entirely evident that when the testator made provision for the situation in which a daughter
After reaching its conclusion that the final clause of the third paragraph applied to corpus, the Appellate Division determined that the two-fourths share of the original corpus was to go to Henry to the exclusion of Peter (see 67 N. J. Super., at pp. 579-584); this determination leads to the unequal and Tather startling result that Peter, the grandchild who lived with the testator and was always treated by him as a favored son, is to receive no more of the corpus than the one-fourth he received upon his mother’s death whereas Henry, the other grandchild, who never lived with the testator and was but an infant when the testator died, is to receive the remaining three-fourths of the corpus. In support of its determination the Appellate Division relied on the language in the final clause which set forth that if the children of a deceased daughter died before they reached 21 the share the children would have received was to be paid to the child or children of any one or all of “the surviving of my said daughters”; it took the position that the word “surviving” should be given its “ordinary meaning” and that consequently Henry was entitled to the “undistributed corpus of the trust.” See 67 N. J. Super., at p. 584. That the testator would have rejected this disposition if he had “envisioned the present inquiry” (Bank of New York v. Black, supra, 26 N. J., at p. 287) would appear to be beyond question.
In In re Fox’s Estate, supra, the testator left his property in trust to pay one-fourth of the income to each of his four daughters and on the death of a daughter leaving issue the principal was to go to such issue. On the death of a daughter without issue her share was to be held in trust for “her surviving sisters in the same and like manner.” Two of the sisters died with issue and the third, Hannah, died without issue, leaving Catherine as the sole surviving sister. Catherine’s trustee claimed all of Hannah’s share
“He treated all his daughters alike, and gave each one-fourth of his estate for life, with remainder to her issue. Not one of them was vested with power to break the succession of her issue in remainder, and nowhere is there any indication that he intended to make any distinction among his descendants of the second generation as to their ultimate share in his estate. That the issue of a sister dying first should thus be cut off from participation in the share of a sister dying subsequently without issue would be giving an accidental and irrelevant fact an effect contrary to the manifest general intent, and an exercise of the power withheld from the daughters themselves. As said by the auditing judge below: ‘It is well settled, however, that the word “survivor,” or “surviving,” will be understood as the equivalent of “other,” where in any other sense it would lead to an intestacy, or to inequality among those standing in the same degree of relationship to the testator, or to a distribution not in accordance with the general scheme of the will in its entirety. Lapsley v. Lapsley, 9 Pa. 130; Williams on Executors, 1577; Theobald on Wills, 355. See, also, Vance’s Estate, 11 Pa. Dist. R. 197, s. c. 209 Pa. 561, 58 Atl. 1063; Park’s Estate, 21 Wkly. Notes Cas. 227; Hubbert’s Estate, 6 Pa. Dist. R. 96; Vogdes’s Estate, 16 Pa. Dist. R. 377; Lewis’ Appeal, 18 Pa. 318,’ etc.
It is not necessary to resort to the artificial and arbitrary construction that ‘survivors’ meant survivors at the testator’s death. The time in testator’s mind was clearly the death of each daughter dying without issue; but he did not mean to make shares of any group of his grandchildren dependent on the accident of their mother’s survival of her childless sister. The word ‘other’ very clearly expresses his general intent, and that is the sense in which he used the word ‘survivors.’ ” 70 A., at p. 955
As in In re Fox’s Estate, supra, we consider that the honoring of Henry’s claim to three-fourths of the corpus would disregard “the general intent and scheme of the
Modified.
For modification—Chief Justice Wmnteaub, and Justices Jacobs, Fkancis, Pboctoh, Hall, Schettino and Haneman—7.
Opposed—None.