On appeal from the Superior Court of New Jersey, Law Division, Probate Part, Bergen County.
Michels and Baime. The opinion of the court was delivered by Michels, P.J.A.D.
The judgment of the Law Division, Probate Part, entered in favor of plaintiff Lester Danelczyk, Jr., also known as Lester E. Danelczyk, Executor of the Estate of Lester Danelczyk, Sr., is affirmed substantially for the reasons expressed by Judge Lesemann in his oral opinion of June 16, 1992. Judge Lesemann found that the life estate bequeathed to defendant Bertha Tynek by the Last Will and Testament of Lester Danelczyk, Sr. was a life estate in the second floor apartment referred to as the larger apartment located on the second floor of premises designated 616 River Drive, Garfield, New Jersey and did not include the second floor apartment referred to as the smaller apartment or the first floor of the premises. We are satisfied from our study of the record and the arguments presented that there is sufficient credible evidence in the record as a whole to support the findings and Conclusions of the trial court and we discern no good reason or justification for disturbing them. See Leimgruber v. Claridge Assocs., Ltd., 73 N.J. 450, 455-56, 375 A.2d 652 (1977); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84, 323 A.2d 495 (1974); State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964); see also R. 2:11-3(e)(1)(A). Moreover, all of the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E).
Additionally, we are satisfied that, contrary to defendant's claim, the trial court properly utilized the doctrine of probable intent in concluding that the testator intended to give a life estate in the larger apartment on the second floor of the premises designated 616 River Drive and not the entire building. "The judicial function in construing a will is to ascertain and give effect to the probable intention of the testator." In re William F. Conway, 50 N.J. 525, 527, 236 A.2d 841 (1967); see Engle v. Siegel, 74 N.J. 287, 292, 377 A.2d 892 (1977); In re Munger, 63 N.J. 514, 521, 309 A.2d 205 (1973); In re Cook, 44 N.J. 1, 6, 206 A.2d 865 (1965); Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564-65, 178 A.2d 185 (1962); Matter of Will of Maliniak, 199 N.J. Super. 490, 493, 489 A.2d 1229
(App.Div.) (Bilder, J.), certif. denied, 101 N.J. 267, 501 A.2d 935 (1985); N.J.S.A. 3B:3-33. See generally 5 Alfred C. Clapp, New Jersey Practice-Wills & Administration § 196 at 405 (3rd rev. ed. 1982).
The object of our investigation is to determine the probable intent of the testatrix by a preponderance of the evidence and to carry it out in accordance with her wishes even though they be imperfectly expressed. We do what elemental Justice and fundamental fairness demand under the necessitous circumstances.
Essential Justice does not permit "a discernible intention of the testator" to be defeated. The quantum of proof may be supplied by logical inferences if they are sufficiently persuasive to carry the necessary conviction. [ Bank of New York v. Black, 26 N.J. 276, 286-87, 294, 139 A.2d 393 (1958)].
Accord In re Englis, 54 N.J. 350, 355-56, 255 A.2d 242 (1969); Fidelity Union Trust Co. v. Robert, supra, 36 N.J. at 564-65, 178 A.2d 185; see also 5 Clapp, supra, § 196 at 405-14.
"In ascertaining that intent, courts will give primary consideration to the dominant plan and purpose apparent from the entire will, read and considered in light of the surrounding facts and circumstances." In re William F. Conway, supra, 50 N.J. at 527, 236 A.2d 841; see Engle v. Siegel, supra, 74 N.J. at 291, 377 A.2d 892; In re Munger, supra, 63 N.J. at 521, 309 A.2d 205; Wilson v. Flowers, 58 N.J. 250, 260, 277 A.2d 199 (1971); In re Englis, supra, 54 N.J. at 355-56, 255 A.2d 242; In re Cook, supra, 44 N.J. at 6, 206 A.2d 865; Fidelity Union Trust Co. v. Robert, supra, 36 N.J. at 564-65, 178 A.2d 185; In re Goldfaden, 7 N.J. 450, 454-55, 81 A.2d 758 (1951); Matter of Estate of Siegel, 214 N.J. Super. 586, 592, 520 A.2d 798 (App.Div.1987); 5 Clapp, supra, § 196 at 415-16. Stated differently,
The obligation of a court, when a question is presented such as is involved here, is to effectuate the probable intent of the testator when consideration of the will as a whole together with extrinsic evidence, demonstrates, under all the circumstances, that a patent or latent ambiguity exists in the language used and such intent, overcoming the mere literal reading of the instrument, is thereby made "manifest." Wilson v. Flowers, supra, (58 N.J. at 260, 277 A.2d 199). This power must be most carefully exercised and should not be utilized unless the court is thoroughly convinced that it is required -- the need for its
exercise must be "manifest." Otherwise its exercise would amount to varying the terms of a will as distinguished from merely effectuating a testator's intent. [ In re ...