Wilson v. Clotfelter

WASTE, C. J.

William J. Puett died testate on January 13, 1932. At the time of his death he was the owner of an apartment in an “own-your-own” or commonly designated “community” apartment house. Through the medium of an holographic will, of which the respondent is the duly appointed and acting executor, the testator made several specific bequests and, in addition, disposed of the residuum of his estate to designated persons. Among the objects of his bounty is the appellant, a sister of his predeceased wife. The fifteenth paragraph of his will reads as follows: “To provide a furnished home for Lillian M. Wilson [appellant] of Elizabeth, New Jersey, I give and bequeath to her all my right, title and interest in the 'Mira Monte Terrace’, a corporation, my certificate of membership therein Number nine (9) Apartment ‘R’, in the building owned by that Company

and all the personal property in said apartment

,'R’.”

The present controversy centers about the interpretation to be given to the italicized portion of the foregoing provision. However, before proceeding to a discussion of the issue, it should be stated that during the course of probate the respondent executor petitioned for and procured an order of ratable distribution, under which order, as amended

nunc pro

tunc, provision was made, in accordance with the terms of the will, for the distribution to appellant of apartment “R” and “all the personal property in said apartment R”.

Contending that the phrase “all the personal property in said apartment R” should be so construed as to

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include a tin box containing two promissory notes, aggregating $5,500, and a stamp and coin collection usually kept in the apartment during the testator’s lifetime, the appellant petitioned the probate court for and procured an order directing the respondent executor to show cause why he should not turn over said personal property to appellant. Upon return to and after hearing had on the order to show cause, the probate court, in accordance with the contention of the respondent executor, concluded, in effect, that the testator’s intent as disclosed by the opening phrase of the particular bequest here involved, to wit, “to provide a furnished home for” the appellant, suggested and required a construction of the closing and italicized phrase of the bequest limiting the same to “furnishings” found in the apartment at the time of the testator’s demise. Such a construction, of necessity, excludes from the operation of the bequest the tin box and the notes therein contained and the stamp and coin collection. We are satisfied from a reading of the particular bequest here involved that it was the testator’s desire and intention, as evidenced by the language employed, to provide the appellant with “a furnished home” and that in view of this clearly expressed intention the concluding language of the bequest should be so interpreted as to cover only the furnishings and bric-a-brac incidental to the maintenance of the apartment. Such a construction is consistent with and does no violence to the testator’s expressed intention. It is generally recognized that a testamentary instrument is to be examined with a view to discovering the decedent’s testamentary scheme or general intention, and that the apparent meaning of particular words, phrases and provisions is to be subordinated to this scheme, plan or dominant purpose. The technical import of words should not prevail over the obvious intent of the testator. In