For affirmance in part and reversal in part -- Chief Justice Hughes and Justices Mountain, Pashman, Schreiber and Handler. For affirmance -- Justices Sullivan and Clifford. The opinion of the court was delivered by Mountain, J. Sullivan, J., and Clifford, J., dissenting.
[74 NJ Page 301] This is a will construction suit the resolution of which depends in large part upon the interpretation
given the clause in the will which establishes the widow's marital share.
The decedent, G. Leonard Ericson, died December 4, 1969, survived by his wife, Helen Ericson. The couple had no children. On March 7, 1967 Ericson had executed an irrevocable inter vivos trust disposing of about one-third of his property. Two days later, on March 9, 1967, he executed a will, which was, however, superseded by a later will, dated March 22, 1967. The latter was admitted to probate. The corpus of the inter vivos trust was about $1,000,000 at the time it was created and about $1,500,000 when Mr. Ericson died. His probate assets totaled somewhat more than $2,000,000.
The problem which has arisen and which has provoked this litigation, emanates in large part from a particular provision of the decedent's will, viz, Article IV, 1. (a), which reads as follows:
If my wife survives me, I give and bequeath to her "Part A" of my residuary estate which shall be that fraction of my entire residuary estate which shall secure for my estate the maximum marital deduction allowable under the Federal Estate tax law. The numerator of this fraction shall be one-half of my adjusted gross estate (as defined in the Internal Revenue Code, but after excluding the value of all property passing or having passed outside this Will except joint tenancies) less the value of all property finally allowed as a marital deduction for property passing to my wife, other than property passing under this Article, and the denominator shall be the value of my entire residuary estate, all based on values as finally determined for Federal Estate Tax purposes. The remaining fraction of my residuary estate shall be called "Trust A" which I herewith give, allocate, convey, transfer and deliver to The First National Bank of Middlesex County, as Trustee, upon the trust set forth below, or if my wife does not survive me, I give, bequeath, allocate, convey, transfer and deliver my entire residuary to The First National Bank of Middlesex County, as Trustee, upon the trust set forth below.
The italicized words are hereafter referred to as the "clause in dispute."
As will be seen from what is said below, the introduction of the "clause in dispute" created a contradiction within the marital deduction clause itself. The trial judge resolved the issue by exscinding the "clause in dispute" from the will. The Appellate Division reversed, holding that it should be given full effect. 152 N.J. Super. 169 (1976). We disagree and as to this issue we reverse.
Extrinsic testimony as to the circumstances surrounding the preparation and execution of the will was properly received before the trial judge. Engle v. Siegel, 74 N.J. 287 (1977); Wilson v. Flowers, 58 N.J. 250, 262-63 (1971). This uncontradicted evidence firmly supports the conclusion that the will of March 22 was intended by the testator to alter the will of March 9 in only one respect. There was to be added a new provision leaving a bequest of $1,000 jointly to the testator's brother-in-law and sister-in-law, Felix and Martha Cigolini. It in fact altered the earlier will in two respects. In addition to adding the bequest to the Cigolinis, there was also included the "clause in dispute," which had not appeared in the earlier will. Incredibly, as set forth more fully below, no one has any idea why or how the "clause in dispute" came to be so included.
As to the inter vivos trust and as to the earlier of the two wills, the testator gave no instructions directly to the attorney who prepared the instruments. Instead, he discussed the matter upon each occasion with a trust officer of the bank which was named as executor and trustee in the will and as trustee of the inter vivos trust. The trust officer, in turn, then conferred with the lawyer. The instructions as to the single change to be made in the later (March 22) will were apparently conveyed to the attorney directly by the testator as well as through the bank officer.
At the trial, the trust officer testified as follows:
Q. Now, in connection with the will of March 22, 1967 . . . was that will patterned after an earlier will made by Mr. Ericson on March 9, 1967.
A. Yes, sir. It was supposed to be the same will except for one specific bequest.
Q. Do you have any recollection as to why a new will was made so shortly after the will of March the ninth?
A. Mr. Ericson felt that he should leave the sister and brother-in-law -- her sister and brother-in-law, Cigolini, a specific bequest, and the will was drawn to insert that.
Q. Did you receive your instructions as to the specific bequest to Cigolini from Mr. Ericson?
Q. And he instructed you to make ...