Alfred Schmidt died on March 15, 1954, a resident of Hudson County, New Jersey, and his last will and testament has been duly probated in the Surrogate's Court of Hudson County. In connection with the settlement of the first intermediate account the executors seek direction as to the distribution of a certain asset concerning which there has arisen doubt.
The sole question presented is whether the phrase "any cash in any bank account or bank accounts" as used in the last will and testament of decedent comprehends the sum of $24,000 in cash which was found in a safe deposit box maintained by the testator during his lifetime.
The last will and testament of decedent contains the following provision:
"SECOND: I give and bequeath to my wife, Eileen Schmidt, the remainder of any cash in any bank account or bank accounts after the payment of my debts, funeral expenses and administration expenses as provided for in paragraph One, together with all of my personal effects, to wit, household furnishings, jewelry, clothing and my automobile or automobiles that I might own at the time of my death and any stock in Weehawken Engineering and Manufacturing Company Inc. of which I might die seized." (Italics supplied.)
In addition to the assets mentioned in the terms of the will there was discovered in the safe deposit box aforesaid the sum of $24,000. This cash sum is claimed by the widow of decedent under paragraph Second of the will. The guardian ad litem appointed by the court on behalf of Alfred Schmidt
Jr., and Joy Campbell, infants, objects and contends the decedent died intestate as to this cash fund which must be distributed in accordance with the provisions of N.J.S. 3 A:4-2.
The court is mindful of the general principle that in a matter of doubt a will is to be construed, if possible, so as to avoid intestacy. Polliak v. Smith , 19 N.J. Super. 365 (Ch. Div. 1952); Hackensack Trust Co. v. Bogert , 24 N.J. Super. 1 (App. Div. 1952). However, as stated by Justice Heher in In re Fox's Estate , 4 N.J. 587, at page 594 (1950):
"It is not of the judicial province to reconstruct the will and to provide for a contingency unforeseen by the testator. * * *"
And in the case of Ricardo v. Kelly , 134 N.J.L. 540, at page 543 (Sup. Ct. 1946), this principle was given expression by the court when it stated:
"Conjecture and speculation as to the testamentary intention are inadmissible. The Statute of Wills (R.S. 3:2-3) directs that, except as to noncupative wills, the testamentary design shall be in writing and authenticated as therein prescribed; and thus the testator's intention, to be enforceable, must be found in the words of the will, considered as a whole in relation to the attendant circumstances. The aim of construction is not to find the unexpressed intention of the testator, but that expressed in the language of the will. The judicial function is not to redraft or revise the will, but only to construe the will that the testator has made. * * *"
There is such a vast distinction between cash which is maintained in a bank account and cash which is kept in a safe deposit box that it would require a forced and unnatural interpretation to ascribe the same meaning to each. A bank account creates a creditor-debtor relationship, and the amount on deposit is specifically recorded and receipted for by the banking institution. A safe deposit box on the other hand creates at most a bailment relationship between the parties and the funds contained therein at all times are within the sole knowledge and control of the person renting the box. The fact that the decedent kept a ...