For modification -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Jacobs, J.
This is a will construction case in which the Appellate Division filed a comprehensive opinion. See Fidelity Union Trust Co. v. Robert, 67 N.J. Super. 564 (App. Div. 1961). We granted certification on applications by Peter F. Crossman and Edward F. Cavanagh, Jr., executor of the estate of Edith Flood Cavanagh.
Since the pertinent provisions of the will and the attendant circumstances, as well as the later factual occurrences and legal proceedings, are sufficiently set forth in the Appellate Division's opinion, we shall not restate them here except to such limited extent as may be found necessary. Nor shall we deal at any length with issues which have been disposed of to our satisfaction by the Appellate Division. Thus we need do little more than express agreement with its holding that, under the circumstances, the affidavit by Peter F. Crossman (submitted by consent in lieu of testimony), was admissible in evidence and was properly to be considered insofar as it furnished information as to the situation surrounding the testator Peter F. Flood at the time he executed his will. See 67 N.J. Super., at p. 573; cf. In re Fox, 4 N.J. 587, 594 (1950); Zwoyer v. Hackensack Trust Co., 61 N.J. Super. 9, 12 (App. Div. 1960); 5 N.J. Practice (Clapp, Wills and Administration) §§ 191, 196, 198 (3 d ed. 1962). Similarly we express agreement with its position that the judicial function in construing the will was to ascertain and give effect to the "probable intention of the testator." See 67 N.J. Super., at p. 572; cf. Bank of New York v. Black, 26 N.J. 276, 286 (1958); In re Klein, 36 N.J. Super. 407, 419 (App. Div. 1955) (concurring opinion); and Simes and Smith, The Law of Future Interests, § 465, p. 452 (2 d ed. 1956), where the authors point out that "when we say we are determining the testator's intent, we mean his probable intent." See also Morristown Trust Co. v. McCann, 19 N.J. 568, 572 (1955).
It may here be noted that, in ascertaining the subjective intent of the testator, courts will give primary [36 NJ Page 565] emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in the light of the surrounding facts and circumstances. See Zwoyer v. Hackensack Trust Co., supra, 61 N.J. Super., at pp. 12, 16; Greene v. Schmurak, 39 N.J. Super. 392, 400-401 (App. Div. 1956), certif. denied 21 N.J. 469 (1956); Shepherd v. Peratino, 86 U.S. App. D.C. 395, 182 F.2d 384 (D.C. Cir. 1950); 2 Powell, Real Property, § 325 (1950); Simes and Smith, supra, § 844; cf. Busch v. Plews, 12 N.J. 352, 358 (1953). So far as the situation fairly permits, courts will ascribe to the testator, "those impulses which are common to human nature, and will construe the will so as to effectuate those impulses." See Greene v. Schmurak, supra, 39 N.J. Super., at p. 400; cf. Murphy v. Murphy, 118 N.J. Eq. 108, 112 (Ch. 1935), affirmed 119 N.J. Eq. 83 (E. & A. 1935); Coyle v. Donaldson, 91 N.J. Eq. 138, 140 (E. & A. 1919); Bank of New York v. Black, supra, 26 N.J., at p. 285. In the Black case, this court had recent occasion to determine whether a residuary bequest by the testatrix to her daughter of "all my estate" was intended to pass property which was not literally part of her estate but over which she had a general power of appointment. We held that it did and, in the course of his opinion for the court, Justice Wachenfeld expressed high-purposed principles which should have application in the construction of all wills. He pointed out that the goal always is the ascertainment of the testator's intent and it is not to be thwarted by unduly stressing "the literal meaning" of his words (see 26 N.J., at p. 284; cf. Bottomley v. Bottomley, 134 N.J. Eq. 279, 290-291 (Ch. 1944)); that the object is to ascertain "the probable intent" of the testator by a "preponderance of the evidence" and to carry it out in accordance with his wishes "even though they be imperfectly expressed" (see 26 N.J., at p. 286; cf. In re Klein, supra, 36 N.J. Super., at p. 419); and that the court's endeavor is to put itself in the testator's position insofar as possible in the effort to accomplish what
he would have done had he "envisioned the present inquiry." See 26 N.J., at p. 287; cf. Simes and Smith, supra, § 466. In his search for the intent of the testatrix, Justice Wachenfeld extensively reviewed the background and surrounding circumstances and expressed the court's conclusion "from the whole record" that the testatrix intended to and did pass to her daughter the property over which she had the power of appointment. See 26 N.J., at pp. 289-294.
The readiness, as indicated by Black, to strain towards effectuating the probable intent of the testator, represents a wholesome judicial attitude which finds ample expression in adjudications here and elsewhere. See Watson v. Brower, 24 N.J. 210, 215 (1957); Zwoyer v. Hackensack Trust Co., supra, 61 N.J. Super., at p. 12; In re Upjohn's Will, 304 N.Y. 366, 107 N.E. 2 d 492, 495 (Ct. App. 1952); Shepherd v. Peratino, supra, 182 F.2d, at p. 386. Earlier cases where the courts carried forth the testator's probable intent, even though it meant departing from the literal terms of the will, may be found among the decisions cited by Judge Clapp in In re Devries, 36 N.J. Super. 29, 35 (App. Div. 1955), and by Vice-Chancellor Woodruff in Bottomley v. Bottomley, supra, 134 N.J. Eq., at p. 291. In the Bottomley case the Vice-Chancellor said:
"The power of this court to effectuate the manifest intent of a testator by inserting omitted words, by altering the collocation of sentences, or even by reading his will directly contrary to its primary signification is well established. This power, when necessary, is exercised to prevent the intention of the testator from being defeated by a mistaken use of language. The question presented is simply this: Will the court execute the clear intent of the testator not fully or clearly expressed in a will, or will it by a strict technical adherence to the form of words and their literal meaning suffer the intention of the testator to be defeated? Scarborough v. Scarborough (Court of Chancery), 134 N.J. Eq. 201; Van Houten v. Pennington (Court of Errors and Appeals), 8 N.J. Eq. 745, 749. In the exercise of this power and the discharge of its responsibility, this court has frequently construed technical legal words contrary to their technical meaning. Some of those cases are: Den ex dem. Blackwell v. Blackwell (Supreme Court), 15 N.J. Law 386; Stokes
v. Tilly (Court of Chancery), 9 N.J. Eq. 130; Aitken v. Sharp (Court of Chancery), 93 N.J. Eq. 336, 346; 115 A. 912; Campbell v. Cole (Court of Chancery), 71 N.J. Eq. 327; 64 A. 461; affirmed, 73 N.J. Eq. 384; 67 A. 1052; First National Bank v. Levy (Court of Chancery), 123 N.J. Eq. 21; 195 A. 820, application to amend decree denied, 126 N.J. Eq. 493; 9 A.2d 789; affirmed 130 N.J. Eq. 220; 21 A.2d 788."
See In re Fabbri's Will, 2 N.Y. 2 d 236, 240, 159 N.Y.S. 2 d 184, 187, 140 N.E. 2 d 269 (Ct. App. 1957).
This liberal judicial attitude finds comparable expression in the many recent cases in our State which have dealt with the construction of other instruments such as contracts and legislative enactments. See, e.g., Atlantic Northern Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301 (1953); Tessmar v. Grosner, 23 N.J. 193, 201 (1957); Dvorkin v. Dover Tp., 29 N.J. 303, 313 (1959); State v. Provenzano, 34 N.J. 318, 322 (1961). It is sometimes said that courts have less latitude in the construction of these other instruments than they have in the construction of wills (see Wise v. Potomac Nat. Bank, 393 Ill. 357, 65 N.E. 2 d 767, 771 (Sup. Ct. 1946); 4 Page on Wills 8 (Bowe-Parker Revision 1961); cf. 5 Clapp, supra, § 196, p. 303); in construing these other instruments, courts may be confronted with significant problems of reliance and the troublesome goal of effectuating the common intent of different parties whereas in the construction of wills, there are fewer problems of reliance and the goal is the effectuation of the intent of the testator alone. See 4 Page on Wills, supra, at pp. 2, 7; Simes and Smith, supra, § 462; cf. Corbin, Contracts, § 538 (1960). Nevertheless, in construing contractual instruments, our courts will broadly search for the probable common intent of the parties, will consider their relations, the ...