This suit involves the construction of the will of John De Benedictis, deceased. It has particular reference to paragraphs Second and Third, which read as follows:
"Second: I give, devise and bequeath unto my wife, Lucy De Benedictis, all my real and personal estate situate in Italy.
Third: All the rest remainder and residue of all my real and personal estate whatsoever and wheresoever situate."
It is the contention of the plaintiffs that the testator having failed to designate a devisee or legatee in paragraph Third of his will, died intestate as to the residue of his estate. The defendant, however, contends that the testator intended not only to devise and bequeath to Lucy De Benedictis all of his real and personal estate situate in Italy, but all the rest, residue and remainder of his estate, wheresoever situate, as well. Since such a purpose cannot be plainly ascertained from the instrument itself, defendant has proffered oral testimony, the object of which is to demonstrate the manner in which the testator intended to dispose of his estate. Otherwise stated, the testimony as so proffered, it is asserted, will prove that which the testator had in mind when he prepared his will.
At the pretrial conference it was stipulated that the question of the admissibility of this evidence should be preliminarily decided by the court. It was further stipulated that if the objection to the testimony were sustained, then this court should decide this matter upon the will itself, without the production of any further evidence.
Extrinsic evidence which, in its nature and effect, is simply explanatory of what the testator has written, may be resorted to in an attempt to construe a will, but no evidence can be received for the purpose of showing what he had intended to have written. Such evidence may not be used to supplement a will nor to show what a testator meant to say, but may be used to show what he meant by what he actually did say, and may be used to enable the court to understand the testator's "meaning" but not to understand his "intention." The word "meaning" as herein used connotes a demonstration of the significance of a word, phrase, clause, etc., actually expressed by the testator. The word "intention" as herein used connotes his will, desire or volition towards expressing an idea in the testament but which he failed to indicate by language in the will. It is not the secret working of the mind of the testator for which such testimony may be used to ascertain how he intended to dispose
of his property, other than the mode in which he expressed it, but rather to ascertain what he did mean by the words he used.
The function of the court is to ascertain the intention of the testator from the language of the will. The ambiguity which is explainable must be latent. If there is no latent ambiguity, the construction of the will must be drawn from the words of the will, and parol evidence cannot be admitted to supply, contradict, enlarge, vary, or change the language used, or to explain the intention of the testator.
In Farnum v. Pennsylvania Co. for Ins., &c. , 87 N.J. Eq. 108, at page 114 (Ch. 1916), affirmed 87 N.J. Eq. 652 (E. & A. 1917), the court said as follows:
"Parol evidence of a testator's declarations, or of representations made to him, tending to show his meaning and intention or under standing of his will, different from its legal significance and effect, has been uniformly rejected by the courts as incompetent. By law, wills must be in writing, signed and published by the testator in the presence of witnesses; and it would be inconsistent with that law to permit parol proof to be introduced to contradict, add to, or explain their contents. This principle requires an inflexible adherence to it, even if the consequence should be a partial, or even total, failure of the testator's intention. The formalities so carefully provided would be of no value; the statute itself would be virtually repealed, if when the written instrument is supposed not to express the clear intention of the testator, the deficiency may be supplied, and its mistakes corrected by extrinsic evidence. No principle connected with the law of wills is more firmly established or more familiar in its application than this; and it seems to have been acted upon by judges, of early ...