For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Schreiber and Handler. For affirmance -- Justice Clifford. The opinion of the court was delivered by Mountain, J. Sullivan, J. (concurring in result). Clifford, J. (dissenting).
The facts in this will construction case are not in dispute. In September, 1973, Albert and Judith Siegel, together with their two children, lost their lives as the result of a tragic hotel fire in Copenhagen, Denmark. All died within thirty days of one another. Albert's will was dated April 2, 1964 and Judith's was dated September 29, 1964. The instruments were admitted to probate October 3, 1973 and Louis Engle, Judith's father, qualified as executor of both. A common disaster clause appears in each will. The provision in Albert's will reads as follows:
In the event my wife JUDITH and my children predecease me, or [this is the event which occurred] if we all die as a result of a common accident, or within thirty (30) days from the date of my death, then in that event, I give, devise and bequeath all the rest, residue and remainder of my estate and property of every kind and nature unto my mother, ROSE SIEGEL, and my mother-in-law, IDA ENGLE, to be divided between them share and share alike.
The corresponding clause in Judith's will was identical except for appropriate alterations as to names and relationships. Rose Siegel, Albert's mother, predeceased her son and daughter-in-law, having died in or about 1967. Judith's mother, Ida Engle, survived and is a party to this action.
The contest has arisen due to the fact that Rose Siegel, named in each will as a residuary legatee, predeceased her son and daughter-in-law. Ida Engle, the other residuary legatee, takes the position that under these circumstances our statute, N.J.S.A. 3A:3-14, becomes operative to cause the entire residuary estate of each decedent to pass to her. This statute reads as follows:
When a residuary devise or bequest shall be made to 2 or more persons by the will of any testator dying after July 3, 1947, unless
a contrary intention shall appear by the will, the share of any such residuary devisees or legatees dying before the testator and not saved from lapse by section 3A:3-13 of this title, or not capable of taking effect because of any other circumstance or cause, shall go to and be vested in the remaining residuary devisee or legatee, if any there be, and if more than 1, then to the remaining residuary devisees or legatees in proportion to their respective shares in said residue.
Appellants, Leo H. Siegel and Judith Siegel Baron, are brother and sister of the decedent, Albert Siegel. All three, of course, are also children of the decedent, Rose. It is these appellants' position that the foregoing statute has no relevance here because, by a proper application of the rule of probable intent, the share of each residuary estate set apart for their mother, should now pass to them in equal shares. The trial court found in favor of Ida Engle and the Appellate Division affirmed. Both opinions are unpublished. We granted certification, 71 N.J. 527 (1976), and now reverse.
Traditionally, and perhaps rather monotonously, courts have repeated, as we do here again, that in construing the terms of a will, a court's task is always to determine the intent of the testator. But these words may be given different meanings and the quest for intent can be undertaken and pursued in various ways. The generally accepted method of determining testamentary intent was once described by this Court in these words,
It is elementary principle in the construction of wills that the controlling consideration is the effect of the words as actually written rather than the actual intention of the testator independently of the written words. The question is not what the testator actually intended, or what he was minded to say, but rather the meaning of the terms chosen to state the testamentary purpose. . . [ In re Armour, 11 N.J. 257, 271 (1953)]
This statement can no longer be said accurately to express the law of our State.
In Fidelity Union Trust Co. v. Robert, 36 N.J. 561 (1962) this Court, speaking through Justice Jacobs, announced
what has come to be known as the doctrine of probable intent. The rule has been stated thus,
While a court may not, of course, conjure up an interpretation or derive a missing testamentary provision out of the whole cloth, it may, on the basis of the entire will, competent extrinsic evidence and common human impulses strive reasonably to ascertain and carry out what the testator probably intended should be the disposition if the present situation developed. [ In re Estate of Burke, 48 N.J. 50, 64 (1966)]
It must be clear that the quest for intent projected by this definition is something quite different from the more traditional approach set forth in Armour. In applying the new rule a court not only examines "the entire will" but also studies "competent extrinsic evidence"; it attributes to the testator "common human impulses" and seeks to find what he would subjectively have desired had he in fact actually addressed the contingency which has arisen. We are no longer limited simply to searching out the probable meaning intended by the words and phrases in the will. Relevant circumstances, including the testator's own expressions of intent, Wilson v. Flowers, 58 N.J. 250, 262-63 (1971), must also be studied, and their significance assayed. Within prescribed limits, guided primarily by the terms of the will, but also giving due weight to the other factors mentioned above, a court should strive to construe a testamentary instrument to achieve the result most consonant with the testator's "probable intent."
Fidelity Union Trust Co. v. Robert, supra, was shortly followed by In re Estate of Cook, 44 N.J. 1 (1965), which presented an issue very similar to that before us here. In Cook the will divided the residuary estate between the testatrix's sister and her stepson. The latter predeceased the testatrix. His wife, however, who was also his heir, survived the testatrix. The courts below held that there being no "contrary ...