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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 of
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