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Epstein v. Kuvin

Decided: March 23, 1953.

FRIEDA KUVIN EPSTEIN, EXECUTRIX, ETC., AND ANOTHER, PLAINTIFFS-RESPONDENTS,
v.
HERBERT KUVIN, AND OTHERS, DEFENDANTS-APPELLANTS



Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Bigelow, J.A.D.

Bigelow

We must construe the following clause in the last will and testament of Mrs. Fannie Kuvin:

"Should I die before my grandson, Sanford Kuvin, has completed his college education, then and in that event I direct that my son Samuel Kuvin, contribute the sum of $600. per annum toward the expense of a college education for my grandson Sanford Kuvin, and that my son Herbert Kuvin contribute the sum of $400. per annum toward the expense of a college education for my grandson, Sanford Kuvin. The sums shall be contributed as aforesaid until my grandson, Sanford Kuvin, completes his college education."

The sons of testatrix made the required contributions until their nephew completed his four-year undergraduate course culminating in the degree of bachelor of arts. He has now begun another four-year course leading to the degree

of doctor of medicine. The testatrix directed her sons to contribute toward the expense of her grandson's college education. What did she mean by that expression? Is the cost of medical school included?

The trial court received, over objection, testimony of the draftsman of the will, relating conversations with testatrix, in which she mentioned her strong wish that Sanford become a doctor, and said that she was making provision in her will so that her sons would contribute to his education "until he became a doctor." Sanford's mother was allowed to testify that a month or two prior to the date of the will, testatrix told her "that she would see to it that the boy got an education," and the witness added, "Yes, she said it was a medical education." And that later testatrix told her "that she had made provision that this boy would become a doctor." Testimony of this sort was received from several other witnesses. Clearly it was incompetent.

Our statute of wills requires a will to be in writing. N.J.S. 3 A:3-2. The rules touching the admission and use of extrinsic evidence in aid of the interpretation of a will were summarized in Fidelity Union Trust Co. v. Noll , 125 N.J. Eq. 106 (Ch. 1939):

"I. The testator's declarations regarding his testamentary intentions are inadmissible except in case of latent ambiguity in the naming of a person or thing in the will, when such declarations may be proved to identify the person or thing.

II. Proof is generally admissible of the situation existing when the will was made -- the surroundings of the testator, his property and the condition of the persons taking under his will. Such proof is used to enable the court to understand the meaning and application of the language found in the will.

III. But extrinsic evidence is not allowed to override the will or to set up an intention inconsistent with it. Where the intention of the testator, as disclosed by the will, is entirely clear -- where, as it is sometimes put, there is no room for construction -- the court will disregard or may even refuse to hear evidence of surrounding circumstances. In other words, the court will not reform a will under guise of construing it."

The receipt of evidence of a testator's declarations of what he intended by the language used ...


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