(dissenting). This court in late years has indicated a less confined approach in seeking to divine the intention of a testator where the testamentary language is unclear or its application not plain. Bank of New York v. Black, 26 N. J. 276 (1958), and Fidelity Union Trust Co. v. Robert, 36 N. J. 561 (1962), are illustrative. The whole document is now perhaps more minutely dissected and extrinsic evidence of surrounding circumstances, before and sometimes even after execution, more readily received. If doubt still remains, resolution is sought in the testator’s “probable intention.” 5 N. J. Practice (Clapp, Wills and Administration) § 196, at pp. 299-307 (3d ed. 1962).
The proper considerations involved in the judicial process of construction are aptly summarized in 3 Restatement, Property, § 241, comment c., pp. 1192-93 (1940) :
“The dominant objective of construing a conveyance is to determine the disposition which the conveyor wanted to make. This depends upon an ascertainment of what may be termed his subjective intent, in so far as he had one. But there are difficulties in ascertaining subjective intent. In the first place subjective intent, although actually existent, is often inadequately evidenced by the behavior of the conveyor. In the second place, rules of policy, based upon the Statute of Frauds and the Statute of Wills, and rules of evidence designed to eliminate false testimony easy to fabricate and difficult to detect, prevent resort to some of the behavior of the conveyor as evidence of what has gone on in his mind. * * * In the third place, the conveyor very commonly has failed to envisage some of the possible combinations of future events, in the midst of which his disposition is to *12take effect, and hence his subjective intent as to such future circumstances has been either non-existent or very hazy. Hence the judicial ascertainment of the intent of the conveyor is a process which combines an orderly, but somewhat restricted, search for his subjective intent with supplementing inferences of an intent which the conveyor probably would have had, if he had addressed his mind to those problems which, in fact, have arisen out of his conveyance.”
A wider outlook and reliance on probable intention should never be permitted, however, to work out a will which a testator did not make. The overriding policy of the Statute of Wills prevents filling obvious gaps or changing clear provisions (see, e. g., Chrisman v. Cornell University, 1 N. J. Super. 486 (Ch. 1948); Vrooman v. Virgil, 81 N. J. Eq. 301, 310-311 (Ch. 1913)), to accord with what a court believes a testator thought he did or he would have or ought to have done, for the sake of “fairly and justly” reaching its idea of the proper result in a given case.
The judicial temptation to strain to the point of rupture by resort to probable intention is especially great in cases like this one—-where in a family situation a principal beneficiary predeceases the testator and no express provision is made for that contingency. To my mind, the conclusion of the majority goes far beyond the legitimate limits of a most liberal approach to will construction and is fundamentally wrong, both as to the immediate result and from the standpoint of precedent. There is no ambiguity here; there is no doubt upon which any conception of probable intention can appropriately operate. It is simply a case where this testatrix, for one reason or another, had not provided at her death for the contingency which occurred some nine years previously.
When all is said and done, the majority conclusion actually has to rest on the thesis that the residuary disposition to the sister and the predeceasing stepson, “their heirs and assigns,” meant him or his heirs, because the testatrix told the stepson’s widow after his death that she had provided for her in the will: ''
It has been settled law in this State from time immemorial, as the majority concedes, that “heirs and assigns” and similar *13technical expressions in wills denote words of limitation only —the title and tenure of the estate given—unless some special and different intended meaning can be gathered from the whole testament and surrounding circumstances. Zabriskie v. Huyler, 62 N. J. Eq. 697 (Ch. 1902), affirmed o. b. 64 N. J. Eq. 794 (E. & A. 1902); Haake v. Closter National Bank and Trust Co., 129 N. J. Eq. 72 (Ch. 1941); Lawes v. Lynch, 6 N. J. 1, 7 (1950). In the language of Vice-Chancellor Bigelow speaking to this particular phrase: “Add the word ‘assigns’ to the term ‘heirs’ and it is almost impossible to read the whole phrase otherwise than as a limitation.” Fidelity Union Trust Co. v. Halsey, 136 N. J. Eq. 119, 121 (Ch. 1945). Although since 1784 (the act adopted in that year is now found in N. J. S. 3A:3-15) the use of the phrase is not necessary to pass an estate in fee simple, it is well known that many lawyers still incorporate it or similar expressions in residuary clauses or devises out of custom or an excess of care, as it is evident this attorney did. Invariably such use is in the technical sense with no other implication intended. If a testator asked his lawyer for an explanation of the language, he would undoubtedly be so told.
There is absolutely nothing elsewhere in this will or in the competent surrounding circumstances even to suggest the possibility of a substitutionary meaning for “heirs and assigns.” The case thus differs substantially from those in other jurisdictions relied upon by the majority. Here, recourse is had to the scrivener’s provision cancelling the money legacies in the event the legatee predeceased as indicating an intention to avoid lapse throughout the will and thus put substitutionary flesh on the technical bones of “heirs and assigns.” To me, this is simply another hallmark of a cautious attorney, since there would be a lapse and falling into the residue as matter of law anyway. Perhaps it was even done at the request of his client who, as a layman, insisted it be made clear beyond question that no stepgrandchild was to receive more than $499 and that the residuary beneficiaries *14and not other members of her family were to take the $1500 legacy to her parents if both of them predeceased her.
It is as clear to me as anything could be that an attorney so cautious would have unmistakably spelled out provisions to apply in the event either residuary beneficiary predeceased if the testatrix had wished or intended at the time to provide therefor. This seems particularly so because the will was executed before the enactment in 1947 of N. J. S. 3A:3-14 providing that the share of one of two or more residuary beneficiaries dying before the testator should not lapse but go to and vest in the remaining beneficiaries. When Alma Cook executed this will, her stepson was not even married. Besides the plaintiff, an unmarried sister, she had her father and mother, a married sister and a married brother. If either residuary beneficiary predeceased and the testatrix died before the 1947 statute was passed, the survivors of these family members would take that share in the proportions specified by the then laws of intestacy unless alternative provision was expressed. It is incredible that this careful attorney would not have explained this possibility to Mrs. Cook at the time. The only conclusion a com;t can reasonably and safely draw is that the testatrix was entirely willing that such should happen if either primary object of her bounty predeceased her or, as testators frequently do despite the urging of their lawyers, declined to make any further provision until some circumstance actually changed.
In considering the majority’s view of the meaning of “heirs and assigns,” it should also not be lost sight of that if the phrase has substitutionary meaning, it would have to be given the same meaning in the event the testatrix’ sister had predeceased her. The substituted beneficiaries would then have been the heirs and next of kin of the testatrix, the other members of her family who would take anyway in the event of intestacy. This is further evidence to me that the phrase was used only in its usual technical sense.
So one is forced to conclude that the real basis for attributing substitutionary meaning to “heirs and assigns” can only *15be the statements that the testatrix told the stepson’s widow after his death that she had provided for her in the will. I had thought nothing was more unanimously settled than that such direct statements of a testator’s intention are inadmissible. A recent clear holding is found in In re Armour’s Estate, 11 N. J. 257, 277-284 (1953). Judge Clapp has put it this way:
“The reason for excluding the testator’s direct statements of his intention is because the Wills Act has required the wishes of the testator to be integrated into a formal document, as a safeguard against fraud; and all statements of intention not reduced thereto, even if they are omitted by mistake, must be disregarded. So the court will not admit proof of the testator’s instructions to his scrivener concerning the contents of the will, nor proof of his conversation with others on the same matter, nor evidence that the testator understood the will differently from the court’s understanding of it, nor that a statement in the will was a mistake, nor that he intended to put in the will something that was not there, nor any other direct statement of his intention.” (5 N. J. Practice (Clapp, Wills and Administration), § 197, at pp. 309-310).
See also 3 Restatement, Property, § 242, comment j, p. 1206 (1940).
The intrinsic soundness of the rule is well demonstrated here. The only proof of the statements is the most untrustworthy kind of hearsay—an ex parte affidavit setting forth the words of a deceased person recounted by the only party who stands to benefit therefrom. As the Appellate Division wisely said, even if they be taken as true, “* * * it is impossible to say now whether the statements from the testatrix to appellant were based upon a misconception of the legal effect of her will, were intended to be a promise to change the terms of the will, or indeed constituted only mere ‘puffing’ ” as we know occurs not infrequently to avoid unpleasantness or family disharmony while the testator still lives. The fact that no formal objection to the use of the affidavit appears to have been made on behalf of the plaintiff should not cause a different point of view, for it is evident the trial judge and plaintiff’s counsel both considered the law so well settled against the use of such statements that it was simply assumed *16they were to be excluded from consideration. See Zabriskie v. Huyler, supra (62 N. J. Eq., at p. 701), where Vice Chancellor Stevenson did exactly that. Indeed, the claimant’s counsel, when pressed at oral argument before us, as much as conceded that the long established law would have to be changed drastically to permit consideration of his client’s affidavit and that he had no real basis for success unless such were done.
True it is that the majority does not expressly upset the rule forbidding admission of direct statements of intention, but the effect is accomplished by considering them as the testatrix’ “own practical construction” of her will. No pertinent authority is cited to ground any such novel theory and I am sure none exists. The policy and reasons requiring rejection remain the same.
Nor does the majority’s result find any solid base in the fact that the plaintiff and her attorney at first tools: the position the claimant was entitled to half the residue. This attorney did not draw the will and the record contains no explanation of why he originally advised this view. I had always thought it elementary that a will cannot be construed by reference to the “understanding in the family,” Vrooman v. Virgil, supra (81 N. J. Eq., at p. 311), and that one cannot lose his interest thereunder by anything less than conduct amounting to estoppel or waiver, Lawes v. Lynch, supra (6 N. J., at pp. 10-11).
In my view, the only proper conclusion here is that the testatrix just did not provide for the substitutionary devolution of her residuary estate and no amount of legitimate judicial construction can fill that gap. Correctly considered, the case is identical with Haake v. Closter National Bank and Trust Co., supra (129 N. J. Eq. 72) and Zabriskie v. Huyler, supra (62 N. J. Eq. 697), where stepchildren had also predeceased, and should go the same way unless violent disregard of thoroughly established and wise limitations on judicial will construction is to become the rule of this and many future days.
*17I would affirm the judgment of the Appellate Division.
Justice Haneman joins in this opinion.
For reversal — Chief Justice Weintraub and Justices Jacobs, Erancis, Proctor and Schettino—5.
For affirmance—Justices Hall and Haneman—2.