Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d.
Plaintiff-appellant, Rosalie V. Tizard, filed a complaint in the Chancery Division, seeking a construction of the Fifth paragraph of the will of her late brother, Richard C. Tizard, deceased, providing as follows:
"Fifth: I give and bequeath unto my sister ROSALIE V. TIZARD. the sum of TWO THOUSAND DOLLARS ($2,000.00) provided she spends the rest of her days in the Presbyterian Home located in the City of Philadelphia, State of Pennsylvania."
The Chancery Division held that the provision created a condition precedent; that the plaintiff, not having complied with the terms thereof, is not entitled to its payment and that it passes under the residuary clause to William E. Tizard, decedent's son. The plaintiff appeals from the ensuing judgment.
The matter is submitted to this court on an agreed stipulation, which discloses the following pertinent facts:
Testator died April 1, 1950. The approximate amount of his net estate is $2,750. The Sixth paragraph of decedent's will reads as follows:
"Sixth: All the rest, residue and remainder of my estate, whether real, personal or mixed and wheresoever situate, of which I may die seized, I give, bequeath and devise unto my son, WILLIAM ESSEN TIZARD, his heirs and assigns forever."
The plaintiff, who was 63 years of age at the time of the hearing in November, 1951, is a Lutheran and is not presently residing in the Presbyterian Home mentioned in the decedent's will.
To meet the conditions of admission to the Presbyterian Home, the plaintiff must be a Presbyterian for three years preceding such admission, and must be vouched for by her pastor. Upon proof of compliance with those conditions, her name would then be placed on the waiting list which,
on October 11, 1951, totalled 400 names. If all the requirements of the Home were met, it would be about 5 1/2 years before her name would be reached for admission. If the applicant is between the ages of 65 and 75 at the time of her admission, she would be required to make a payment of $800 and turn over to the Home any property she possesses, including any legacy she might receive, from which she would receive 3% interest thereon.
It is elementary that, in the judicial construction of a will, one of the primary considerations is to ascertain the intention of the testator. "Such intent is to be gathered from the will in the light of the circumstances surrounding the testator at the time of the will's execution." Blauvelt v. Citizens Trust Co. , 3 N.J. 545 (1950); Guaranty Trust Co. of N.Y. v. First Nat., &c., Morristown , 8 N.J. 112 (1951). The principle that the ascertainment of testator's intention is the object of construction, applies to the construction of conditions. His intention governs the distribution of the estate and not any rigid rules relating to conditions. Colwell v. Duffy , 109 N.J.L. 423 (E. & A. 1932).
In weighing the question as to how a bequest of a vested estate would be affected, if at all, by a condition respecting the conduct or obligation of the legatee, there being no limitation over in event of its nonperformance, we are confronted with various underlying matters which may play a part in the determination as, for example, the intention of the testator as shown by his will, ...