Plaintiff herein seeks the construction of the will of one Henry M. Hannan. She alleges that a gift to Albert R. McAllister under the will of the said Henry M. Hannan lapsed by virtue of his death prior to the death of the testator, he not being one of that class of persons described in N.J.S. 3 A:3-13. Since the paragraph of the will providing for the gift, which so lapsed, disposed of the residue of the estate of Henry M. Hannan, plaintiff contends that she, together with testator's other heirs, are entitled to take said residue.
Defendants Albert R. McAllister, Jr., Howard J. McAllister and Carolyn McAllister deny that there was such a lapse.
The facts in connection herewith are as follows: On October 27, 1953 Henry M. Hannan, a resident of Bridgeton, New Jersey, died leaving a last will and testament, which was admitted to probate on November 12, 1953 by the Surrogate of Cumberland County. Letters testamentary were issued by said surrogate to Albert R. McAllister, Jr., since Albert R. McAllister, Sr., the first named executor, died on February 23, 1948. Ellen B. Hannan, wife of the deceased, predeceased him, having died on April 11, 1944.
As far as here pertinent, the will in question provides as follows:
"If my said wife shall predecease me, then and in such case:
(a) I give and bequeath to George and Etta B. Hummel, of Bridgeton, New Jersey, or the survivor of them, for and during the
term of their natural lives, the North half of the double dwelling house owned by me, and known as No. 42 Franklin Street, in the City of Bridgeton.
(b) Subject to the foregoing life estate of George and Etta B. Hummel, I give, devise and bequeath the said North half of the double dwelling house, known as No. 42 Franklin Street, Bridgeton, New Jersey, to my nephew, Albert R. McAllister, and to his heirs and assigns forever.
All the rest, residue and remainder of my estate I give, devise and bequeath to my nephew, Albert R. McAllister, of Bridgeton, New Jersey, and to his heirs and assigns forever."
The will of the testator bears date September 21, 1943 and was prepared by Albert R. McAllister, Esq., a long-standing, respected member of the Bar of this State. On the same day he prepared a mutual will for Ellen B. Hannan, widow of Henry M. Hannan, with the identical provisions as were contained in the will of Henry M. Hannan. Ellen B. Hannan was a sister of Carolyn McAllister, mother of Albert R. McAllister and grandmother of Albert R. McAllister, Jr. The Hannans had no children of their own and there was always a very close and intimate relationship between Albert R. McAllister and his children and the Hannans. They associated together most frequently and, as a matter of fact, Henry M. Hannan consulted Albert R. McAllister as his professional and business adviser. He took a great interest in the public career of the said Albert R. McAllister and often discussed it with him, and advised him concerning it.
Counsel for the defendants have argued that in the light of the surrounding circumstances of the parties, including the preparation of the mutual wills and the language contained in other provisions of the will here in question, the words "and heirs" should not be construed as words of limitation but as words of purchase and substitution. This interpretation would prevent the said gift to Albert R. McAllister, Sr., from lapsing, and ...