McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
James Russell and Alice Meighan Russell, his wife, died ten months apart, each leaving a will executed February 14, 1929, which named the other sole beneficiary and executor and also provided that in the event both should die "at or about the same time," the property should pass in equal shares to their son, the defendant, James Raymond Russell, and their daughter, Alice N. R. Tollefson, "being small recompense for their kindness and devotion to us," and that their third child, plaintiff, William Norman Russell, "who has been a very ungrateful and undutiful son" "shall not receive any part or share of my estate." Neither spouse, however, expressly provided for the contingency of being predeceased by the other. Mrs. Russell predeceased her husband and he took under her will. He died May 11, 1948, and the controversy here is whether he died testate or intestate.
The appeal is by the defendant from a judgment obtained by plaintiff in the Chancery Division upon a finding that, having failed expressly to provide in the will for the contingency which happened, the decedent died intestate so that
his estate passes under the intestacy statutes in equal parts to all three surviving children. The argument for reversal is that he died testate as the will, read in its entirety, plainly and clearly shows that Mr. Russell must necessarily have meant that in the contingency which occurred James Raymond and Alice were to take his estate to the exclusion of William Norman, and that, there being no words expressly alluding to that contingency, the court is to cure the defect by implication and thus to mould testator's language so as to carry into effect the intention that he had, on the whole will, sufficiently declared. The words appropriate to the passage of the estate to James Raymond and Alice, and proposed to be implied in the will, are "or my said wife should predecease me," as follows:
"SECOND: All the rest, residue and remainder of my estate, of whatsoever the same may consist, and wheresoever situate, whether real, personal or mixed, I give, devise and bequeath unto my beloved wife, Alice Meighan Russell, absolutely, her heirs and assigns. In the event that my said wife, Alice Meighan Russell, and I should died (sic) at or about the same time, or my said wife should predecease me , then I give, devise and bequeath the said rest, residue and remainder of my estate unto my son, James Raymond Russell, and unto my daughter, Alice Neville Russell Tollefson, in equal shares, their heirs and assigns, said bequests being small recompense for their kindness and devotion to us. I have made no mention nor made any bequest unto my son, William Norman Russell, who has been a very ungrateful and undutiful son, it being my desire that he shall not receive any part or share of my estate.
LASTLY, I nominate, constitute and appoint my said wife, Alice Meighan Russell, to be the Executrix of this, my last will and testament. In the event that my said wife and I should die at or about the same time, or my said wife should predecease me , then I nominate, constitute and appoint my said son, James Raymond Russell, to be the Executor of this, my last will and testament * * *."
The law will supply words by implication where the words actually employed "most literally taken would not express, or would not sufficiently express, the plain meaning of the writer; and where, in order to bring out that meaning, something must be understood beyond or even different from what is set down." Losh v. Townley, Coop. t. Brough , 372,
47 Eng. Rep. 133 (Ch. 1834). But gifts by implication are not favored in the law. 2 Page on Wills (1941), p. 861; White v. Holton , 23 N.J.L. 330, 425 (Sup. Ct. 1852); Reynolds v. Reynolds , 16 N.J. Misc. 1 (Cir. Ct. 1937). Standing alone, the presumption against intestacy does not suffice to justify the implication, Glover v. Reynolds , 135 N.J. Eq. 113 (Ch. 1944), affirmed 136 N.J. Eq. 116 (E. & A. 1945); a court may not give effect to a supposed intention of a testator which finds no expression in a will; but a court may give effect to an intention or purpose, indicated by implication, where the express language of the entire will manifests such an intention or purpose. Daly v. Rogers , 132 N.J. Eq. 200 (Ch. 1942).
Lord Eldon's pronouncement 140 years ago, in Wilkinson v. Adam , 1 V. & B. 422, at 466, 35 Eng. Rep. 163, at 180 (Ch. 1812), following Lord Hardwick's holding 67 years earlier in Coryton v. Helyar , 2 Cox 340, 30 Eng. Rep. 156 (Ch. 1745), phrased the pertinent canon of construction in language which has been repeated in substantially the same words in our own courts down to this day. See cases collected in Daly v. Rogers, supra, p. 205; Clapp, Wills & Administration, sec. 228, p. 535, and sec. 108, p. 255. Lord Eldon said:
"With regard to that Expression 'necessary Implication,' * * * in construing a Will Conjecture must not be taken for Implication: but necessary Implication means, not natural Necessity, but so strong a Probability of Intention, that an Intention contrary to that, which is imputed to the Testator, cannot be supposed."
Wilkinson v. Adam was followed and applied by an English court at least as recently as 1947, in Veasey v. Smith , 1 Ch. 49, 53 (1947), where 1 Jarman on Wills (7 th ed.), p. 556, is ...