Guilliam Bogert Demarest, a lifelong resident of Bergen County, died on March 17, 1952 leaving an estate of the approximate value of $2,800,000. The plaintiffs, as executors, being in doubt as to their duty, especially with reference to paragraph 5 of the will, seek the court's instructions.
The provision concerning which doubt has arisen is as follows:
" FIFTH: I give and bequeath the sum of ONE THOUSAND DOLLARS ($1,000.00) each to my cousins living at my death, of whatever degree of consanguinity, excepting those who are mentioned
as primary legatees in Paragraph Seven (7) of this my Last Will and Testament."
Another question concerning the payment of taxes having been settled, it is not considered.
On its face the fifth paragraph of the will would be void for lack of certainty. An authority on anthropology estimated that within the space of six generations Mr. Demarest's cousins would number 19,000,000. And, if the Biblical story of creation is to be taken literally, all persons in the world are related. Obviously, the testator, a successful and intelligent businessman, intended no such result. So it becomes the court's problem to seek the testator's intention within the framework of the will, if that can be accomplished without doing violence to the language used in that document.
It is elementary that the court, in construing a will, must seek to determine the intention of the testator. But that intention must be collected from the words of the will. The question is not what the testator meant to express, but what the words of the will do express, read in relation to the surrounding circumstances and the canons in aid of interpretation. In re Armour , 11 N.J. 257 (1953).
The simplest solution to the problem would be to give to the language used by the testator in the fifth paragraph of the will its literal meaning and declare the bequest void for lack of certainty. But the duty of the court goes beyond such a course of action. The court is bound "to treat this kind of instrument with the utmost tenderness and liberality; and it is only when a reasonable construction and the discovery of the intent of the testator are utterly hopeless, that all effect should be denied to a will." Den ex dem. Micheau v. Crawford , 8 N.J.L. 90 (Sup. Ct. 1825); McMurtrie v. McMurtrie , 15 N.J.L. 276 (Sup. Ct. 1836); Elle v. Young , 24 N.J.L. 775 (E. & A. 1854).
In this State the use of the word "cousin" in a will is construed to mean a first cousin, the child of an uncle or aunt. Walker v. Chambers , 85 N.J. Eq. 376 (Ch. 1915). Had the testator simply used the word "cousins" there would
have been no difficulty. But he went further and added the words "of whatever degree of consanguinity." And the question is in what respect the ...