- 19 - daughter, PATRICIA LOW, with the understanding that she will pay". We must determine whether this phrase creates a condition precedent, a condition subsequent, a charge on the bequest, or an option to purchase agency stock. "The judicial function in construing a will is to ascertain and give effect to the probable intention of the testator." In re Estate of Conway, 50 N.J. 525, 527, 236 A.2d 841, 842 (1967). The Supreme Court of New Jersey has given the following guidance on will construction and the "doctrine of probable intent": 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, 222 A.2d 273, 280 (1966).] 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, 277 A.2d 199 (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 [citing In re Estate of Burke, supra], a court should strive to construe a testamentary instrument to achieve the result most consonant with the testator's "probable intent." [Engle v. Siegel, 74 N.J. 287, 291, 377 A.2d 892, 894 (1977); emphasis added.] The obligation of a court * * * 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 ofPage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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