For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Justices Hall and Haneman. The opinion of the court was delivered by Jacobs, J. Hall, J. (dissenting). Justice Haneman joins in this opinion.
The Appellate Division affirmed the trial court's determination that the appellant Viola Cook was not entitled to any share of the estate of the testatrix Alma C. Cook. We granted certification on the application of the appellant. 43 N.J. 126 (1964).
Andrew Cook died in 1946 leaving the bulk of his estate to his widow Alma C. Cook. Shortly thereafter Alma executed her will. After revoking any prior wills and directing that her debts be paid, she made a bequest in the third paragraph to her late husband's grandchildren with a proviso that if any of them predeceased her then his legacy "shall be cancelled" and shall become part of the residue of the estate. The fourth paragraph contained a bequest to her mother and father with a similar proviso that if they predeceased her then it shall be cancelled and become part of the residue. The fifth paragraph directed the payment of taxes and the sixth paragraph read as follows:
"I do hereby give, devise and bequeath all of the rest, residue and remainder of my property, be it real, personal or mixed, and wheresoever it may be situate at the time of my decease, to my sister, Anna J. Wagner of the City of New York, County and State of New York, and my step-son, Raymond W. Cook of the Borough of Brooklyn, County of Kings and State of New York, their heirs and assigns, share and share alike."
Raymond W. Cook was the son of Andrew Cook and the stepson of Alma. He married Viola in 1950. Viola had known him for many years and was always on friendly terms with both Andrew and Alma Cook. Raymond and Viola lived together until Raymond's death in 1952. After Raymond's death, Viola continued to be on friendly terms with Alma who often displayed interest in her health and financial condition. While Raymond was alive he and Viola knew about the residual bequest to him. His stepmother had stated to him that since she had received the estate of his father she felt under obligation to provide for him. After Raymond's death, Alma stated that she felt under obligation to provide
for Viola as Raymond's widow and heir and that she had done so by the will she had executed. Alma knew that Viola was employed at a salary of $55 per week and that she was having difficulty maintaining her apartment and herself; she often questioned Viola as to her financial situation and told her that she would share in her estate as Raymond's widow and heir.
Alma died on September 2, 1961 and on September 27, 1961 letters testamentary were issued to her sister Anna J. Wagner as executrix. Anna and her attorney clearly considered that Viola, as sole heir of Raymond, was entitled to one-half of the residual estate. Anna's attorney kept Viola and her attorney advised as to the progress being made in settling the estate and as to the probable size of Viola's share of the residue. In December 1961, Anna's attorney advised that Viola would of course receive under the will, one-half of the residue "after the payment of administration costs, funeral expenses, etc." In 1962 there was much additional correspondence while a waiver was being awaited from New Jersey's Inheritance Tax Bureau. Ultimately the Bureau wrote a letter stating no waiver was necessary and that Raymond's interest in the estate had lapsed. At this point, Anna's attorney filed a complaint seeking a construction of the sixth paragraph of the will. An order to show cause was issued and an answer on Viola's behalf was filed along with a detailed affidavit embodying the facts set forth in this opinion. No counter-affidavit of any nature was filed and the parties agreed that the proceeding should be disposed of as though there had been cross-motions "for summary judgment"; undoubtedly they intended that it should be finally determined as if the matters set forth in the affidavit had been presented in regular course at hearing or trial.
In a letter opinion, the trial court held that the residual bequest to Raymond had lapsed and that his share went to Anna J. Wagner, the other residual legatee, rather than to Viola Cook, his widow and heir. It found the anti-lapse provisions of N.J.S. 3A:3-13 to be inapplicable since that
statute was not broad enough to extend to instances where, as here, the bequest was to a stepson rather than a son. See Haake v. Closter National Bank & Trust Co., 129 N.J. Eq. 72, 73 (Ch. 1941). It also determined that no "contrary intention" appeared by the will and that consequently Raymond's share was to vest in Anna J. Wagner under the terms of N.J.S. 3A:3-14. On appeal, the Appellate Division agreed that N.J.S. 3A:3-13 was inapplicable not only because Raymond was a stepson rather than a son but also because there had been no children born of his marriage. It voiced the opinion that the will, though considered in the light of the relevant extrinsic circumstances (Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564-568 (1962)), could not be construed as expressing an intention against a lapse of Raymond's residuary bequest.
In Robert we had recent occasion to restate the general principles which apply in the interpretation of wills. The court will read the testament in the light of all of the surrounding facts and circumstances and will strain towards carrying out the testator's probable intent. 36 N.J., at pp. 564-566. So far as the situation fairly permits, it will ascribe to the testator those impulses which are common to human nature and will construe his testament so as to effectuate those impulses. 36 N.J., at p. 565; Greene v. Schmurak, 39 N.J. Super. 392, 400 (App. Div.), certif. denied, 21 N.J. 469 (1956). Though direct statements by the testator as to his intentions are still being excluded by most courts, other utterances by him which may bear on the construction of his will are sensibly being received more and more freely by the courts. 36 N.J., at p. 566; 5 N.J. Practice (Clapp, Wills and Administration) §§ 196, at p. 299, 197, at p. 307 (3 d ed. 1962). Not only may the circumstances surrounding the execution of the will be admitted but so also may the circumstances from then on until the testator's death. See West Jersey Trust Co. v. Hayday, 124 N.J. Eq. 85, 87 (Ch. 1938), aff'd 125 N.J. Eq. 90 (E. & A. 1939). And not only may the testator's practical construction of his will be received in evidence
but so also may the practical construction by the other interested parties. Cf. 5 Clapp, supra, § 204; Annot., 67 A.L.R. 1272 (1930).
At common law a legacy lapsed if the legatee predeceased the testator except where a proper construction of the will disclosed that the testator intended a gift over. See 6 Page on Wills § 50.2, at p. 62 (1962). Ordinarily a gift to A and his heirs was considered to have lapsed if A predeceased the testator because the word "heirs" was viewed as a word of limitation and not of substitution. See Zabriskie v. Huyler, 62 N.J. Eq. 697, 699 (Ch.), aff'd 64 N.J. Eq. 794 (E. & A. 1902). Nonetheless there were many instances in which it was found from the will and the surrounding circumstances that the use of the word "heirs" was intended to indicate the person or persons to whom the estate should go in the event the named legatee predeceased the testator. See Jackson v. Schultz, 38 Del. Ch. 332, 151 A. 2 d 284 (1959); In re Britt's Estate, 249 Wis. 30, 23 N.W. 2 d 498 (Sup. Ct. 1946); In re Burrows' Estate, 259 N.Y. 449, 182 N.E. 79 (Ct. App. 1932); Wettach v. Horn, 201 Pa. 201, 50 A. 1001 (Sup. Ct. 1902); cf. Gittings v. M'Dermott, 2 Myl. & K. 69, 139 Eng. Rep. 870 (1834); Den v. Manners, 20 N.J.L. 142 (Sup. Ct. 1843); Sandford v. Stagg, 106 N.J. Eq. 71 (Ch. 1930).
In Wettach v. Horn the testator made gifts to the heirs of his brother Thomas and his sister Elizabeth and a bequest of the residue of his estate to a deceased sister's daughter Margaret and her heirs. Margaret predeceased the testator. Her heirs were held entitled to the residue, the court finding that such was the intent of the testator and that to effectuate his intent the words "and her heirs" should be construed as words of purchase rather than limitation. 50 A., at pp. 1002-1003. In Burrows' Estate the testator directed his executors to divide the residue of his estate into three parts and to pay one part to his daughter-in-law, "her heirs and assigns." The ...