On suit for construction of will.
Plaintiffs, as executors of the will of Sabato De Leo, deceased, bring this suit for the construction of the seventh paragraph of decedent's will, which reads as follows:
"SEVENTH: In event I shall not be married at the time of my decease, and shall not be residing with a wife legally married to me at the time of my decease, I then order and direct my executors hereinafter named to convert the residue of my estate to money, as soon after my decease as may be convenient, and upon such conversion being had, I direct my executors hereinafter named to divide the same equally, in equal shares, share and share alike, among the then living children of my deceased brother, Dominick De Leo and my sister, Carmella De Leo."
By admissions contained in the pleadings, written stipulations duly filed, and in the pretrial order, the following undisputed facts have been made to appear:
Sabato De Leo died a resident of the Borough of Raritan, Somerset County, N.J., June 12, 1950, leaving a last will and testament, dated April 4, 1950, duly admitted to probate by the Surrogate of Somerset County on June 26, 1950. Testator left him surviving neither a wife nor children nor other lineal descendants, but a sister, Carmella De Leo Maffee, named in the will as Carmella De Leo, and five living children of his deceased brother, Dominick De Leo, namely, the defendants Minnie De Leo, Margaret Denis, Antoinette Eden, Fannie Howarth, and Louis De Leo. Testator's sister, Carmella De Leo Maffee, was, at the time of testator's death, the mother of nine children, none of which children are named as defendants in this suit, testator's sister, Carmella,
and all her children being resident in Italy. All the defendants are of age.
Defendant, Carmella De Leo Maffee, contends that testator intended to divide his residuary estate among two classes, viz. , (1) the defendant, Carmella De Leo Maffee, and (2) the living children of testator's deceased brother Dominick; that the testator had in mind a per stirpes and not a per capita division; and that one-half of the residuary estate should go to her and the other one-half to be divided among the five children of testator's deceased brother Dominick. Or in the alternative, that testator intended that his residuary estate be divided among the nine children of his sister, Carmella, and the five children of his deceased brother Dominick, in which event each of the testator's said 14 nephews and nieces would be entitled to an equal undivided one-fourteenth part of the residuary estate.
On the other hand, the five living children of testator's deceased brother, Dominick, contend that the testator intended, as evidenced by the phraseology of the will, that an equal distribution per capita be made of the residuary estate among six persons, namely, the five living children of his deceased brother, Dominick, and testator's sister, Carmella De Leo Maffee.
It is axiomatic that in the construction of a will the intention of the testator to be gathered from the will itself, in the light of the circumstances surrounding the testator at the time of execution, governs. 5 Clapp on Wills and Administration, sections 108, et seq.; Blauvelt v. Citizens Trust Co. , 3 N.J. 545 at 552 (1950). However, while full force is to be given the intent of the testator as gathered from the will, yet that intent must be gathered by the application of known rules of construction established by long-standing adjudications of the courts, and every testator is presumed to have phrased his bequests with a view to the established rules regulating the construction of wills. Davison v. Rake , 45 N.J. Eq. 767, 771 (E. & A. 1889); Tuerk v. Schueler , 71 N.J.L. 331, 333 (E. & A. 1904); Wills v. Wills , 72 N.J. Eq. 782, 783
(Ch. 1907), affirmed 73 N.J. Eq. 733 (E. & A. 1907); Supp v. Second National Bank and Trust Co. , 98 ...