Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[44 NJSuper Page 409] Plaintiff, administrator c.t.a of the estate of Theodore J. Badgley, instituted this action for a judicial construction of his will and for instructions. Those brought in as defendants were the four nephews and nieces of decedent's wife Emma (hereinafter designated "appellants"), who were to take the residuary estate in a certain contingency, and decedent's niece, who was Badgley's only heir at law and next of kin (hereinafter designated "respondent"). The Chancery Division concluded that the contingency had not come to pass, decedent
died intestate, and respondent was entitled to the residuary. The wife's kin appeal.
Decedent was a member of the New Jersey Bar. On January 7, 1941 he and his wife executed similar wills, each giving his (her) entire estate to the other and nominating the other executrix (executor). Both wills then provided as follows:
"This Will is made expressly subject to this contingency: in case I and my said wife shall die or meet death as the result of a common disaster, I give, devise and bequeath all my estate, both real and personal, of whatsoever kind and nature, as follows: I give, devise and bequeath the net income accruing from one half share or portion of my estate to my brother OLIVER K. BADGLEY for and during the term of his natural life, and upon the death of said Oliver K. Badgley, I give, devise and bequeath said one half share or portion of my estate to the nephews and nieces of my wife, Emma E. Badgley, that is to say: to ELVA M. LUPHER, DOROTHY JONES, JOHN W. DUTTON and CHESTER S. DUTTON, to be equally divided among them share and share alike, their heirs and assigns forever; and I give, devise and bequeath the remaining one half portion of my estate to the nephews and nieces of my wife Emma E. Badgley, viz: ELVA M. LUPHER, DOROTHY JONES, JOHN W. DUTTON and CHESTER S. DUTTON, to be equally divided among them share and share alike, to them, their heirs and assigns forever.
In case of the happening of the above contingency, whereby my death and the death of my wife shall occur as a common disaster, I nominate, constitute and appoint the MONTCLAIR TRUST COMPANY, of MONTCLAIR, NEW JERSEY, Executor of this my Last Will and Testament, with full power and authority to grant, bargain, sell and convey and lease and mortgage any or all of my real estate or any interest therein, and to execute and deliver good and sufficient instruments for that purpose, and I direct that no bond or security shall be required of said Montclair Trust Company, Montclair, New Jersey, as Executor of this my Last Will and Testament, in case it shall act as Executor of this my Last Will and Testament on the happening of the above contingency."
Badgley's brother Oliver died a number of years prior to decedent, so that the life estate appointed for him never came into being and is not here involved. Oliver had been divorced by his wife in 1918; respondent is his only child.
The Badgley's never had any children. Decedent died January 10, 1956. His wife had predeceased him by a
little more than a month, from causes admittedly in no way connected with that which brought on his death. Accordingly, the "common disaster" clause of the mutual wills never came into play.
Appellants first project two fundamentals of will construction with which there can be no disagreement: (1) the ultimate aim of all construction is to determine the true intention of the testator, and this is to be drawn, not from any single clause of the will, but from a consideration of all the language found within its four corners. Resort may be had to extrinsic evidence touching the circumstances surrounding or attending the will, so as to place the court in the situation of the testator at the time of its execution. (2) The law abhors intestacy and presumes against it. From this background appellants go on to argue that the will contains adequate language upon which to predicate and sustain the gifts to them; and, alternatively and additionally, that "from the whole of the will and the attendant circumstances a plain intention appears, and must be given effect, that the named beneficiary shall take in the event, as actually happened, that the wife predeceased the testator."
Appellants insist that two distinct ideas are evident in the language of the contingency clause, "in case I and my said wife shall die or meet death as the result of a common disaster." "Die" and "meet death," they say, are not congruent expressions. The first imports disease or debility, and the second some external and dramatic cause, instantly or ultimately fatal. Appellants reason that the expression "shall die" is an independent thought, and that the words "meet death" are modified by the phrase "as the result of a common disaster" to which they stand in juxtaposition. Appellants make their position entirely clear when they suggest the interpolation of a comma ...