(dissenting).
I respectfully dissent because under the somewhat unusual record I am persuaded that a class gift was not established. I believe the antilapse statute does apply.
I. From the testimony of the draftsman of the will, quoted in the majority opinion, we know why the testator did not list his first cousins by name. It is clear that the will was drawn at a time when the decedent had suffered a farm accident. He believed his death was imminent. The term “first cousins” was used, not to place any qualifications or conditions on the recipients of the bequest, but rather to identify specific individuals, none of whom the testator wanted to omit.
It seems to me that, under these circumstances, we should pay more than passing deference to the requirement that the “testator’s intent is the polestar and if expressed shall control . . . .” Elkader Production Credit Ass’n v. Eulberg, 251 N.W.2d 234, 237 (Iowa 1977). If Louie Ka-louse’s intentions are indeed to be the polestar and if the evidence regarding those intentions is clear from the stipulated record, we should not pretend we are ignorant of them. Rather we should approach the question with an acknowledgement that:
The only universal rule for determining whether testamentary gifts to several persons are gifts to them as a class rather than as individuals is to ascertain the intention of the testator, which is controlling. The decisive inquiry is whether or not the testator, in making the particular gift in question, did so with “groupmind-edness,” whether, in other words, he was looking to the body of persons in question as a whole or unit rather than to the individual members of the group as individuals; if the former, they take as a class. Any additional circumstances which may be seized upon, such as the general scheme of the will, the manner and form in which the beneficiaries are designated, the particular language used, or the relationship of the parties and the circumstances surrounding the testator, are to be regarded merely as aids in ascertaining the testatorial intention.
80 Am.Jur.2d Wills § 1410. See also Elkader Production Credit Ass’n v. Eulberg, supra ; Matter of Estate of Kruse, 250 N.W.2d 432 (Iowa 1977); Houts v. Jameson, 201 N.W.2d 466 (Iowa 1972).
We should also consider a somewhat narrower but none-the-less general principle akin to and often thought to be a part of the parol evidence rule. With exceptions which will be discussed in subsequent divisions, extrinsic evidence is not admissible to vary, contradict, or add to the terms of a will, or to show a different intention on the part of the testator from that disclosed by the language of the will. In re Estate of Winslow, 259 Iowa 1316, 1323, 147 N.W.2d 814, 818 (1967), and authorities there cited; 80 Am.Jur.2d Wills § 1279; 95 C.J.S. Wills § 633. Even the testimony of the scrivener of the will, the testator’s attorney, or attesting witnesses is usually not admissible for such purpose. Winslow, supra ; 80 Am.Jur.2d Wills 1331; 95 C.J.S. Wills 638.
I think we should give effect to the intentions of the testator using the stipulated evidence to learn what those intentions were.
II. The general parol evidence rule in its modern form proceeds from a different premise than the rule excluding extrinsic evidence to explain provisions of wills. In *108deeds and in contracts the intentions of two or more persons are involved. In the case of a will the intention of the testator alone is involved. Wigmore explains:
. The modern test, for bilateral acts, will be found, with fair uniformity, to predicate some relation of reasonable consequences (judged by the community standard) between the outward expression and the inward volition; because in bilateral acts the just reliance of the other party to the transaction upon the first party’s outward expression must be the salient consideration. For unilateral acts — chiefly wills — more of a concession can be made, and is made, to the actual volition, so far as it is ascertainable.
9 Wigmore on Evidence § 2404 at p. 10 (3d ed. 1940) (emphasis added.)
Our own cases, accordingly, recognize that peculiar circumstances surrounding the execution of wills might make it permissible to learn the subjective intentions of the testator. In Martin v. Beatty, 253 Iowa 1237, 1242-1243, 115 N.W.2d 706, 709-710 (1962) we quoted with approval from Anderson v. Wilson, 155 Iowa 415, 418-419, 136 N.W. 134, 135 (1912):
[T]he words of the testator will be given effect according to the approved usage of the language, unless the context or the peculiar circumstances under which the instrument was executed make it reasonably certain that the words were employed by him in some other or more restricted or more enlarged sense.
The facts surrounding the execution of the Kalouse will are extremely important. The testator’s belief that death was imminent, and his fear that the name of a first cousin, or some of them, might be omitted were the reasons why class gift language was accidentally selected. These peculiar circumstances make it reasonably certain the testator employed the words with no intention of creating a class gift. See Wagg v. Mickelwait, 165 N.W.2d 829, 832 (Iowa 1969).
III. It is also significant that, to a layman, there is no practical and obvious difference between Louie Kalouse’s intent, as testified to by the will scrivener, and the words appearing in the will. It is only when the technical law of wills is applied to the words that Louie Kalouse’s desires might become frustrated.
We know that the testator’s use of the language “first cousins” was motivated out of the desire not to omit any of his numerous first cousins. I therefore take it that the names of the testator’s first cousins can each be substituted for the words “first cousins.” The testator did not intend by the use of the language in article V to make his residuary clause a class gift.
This conclusion is supported by the fact that the legal effect of a class gift was never explained to the testator. Also, it is clear that the testator’s use of the term “first cousins” was only to identify the persons to be remembered. There is nothing to indicate the degree of relationship of those persons was of controlling significance to the testator. Neither is there anything to indicate the testator wished to restrict his testamentary scheme to those of his closest relatives who survived him.
It is well settled, in cases such as this, (1) testator’s intent is the polestar and if expressed shall control; (2) it must be gleaned from a consideration of all language contained in the will, the scheme of distribution, and facts and circumstances surrounding the making of the will; and (3) technical rules of construction should be resorted to only if the will is clearly ambiguous, conflicting, or testator’s intent is for any reason uncertain. [Authority.]
Elkader Production Credit Ass’n, supra, 251 N.W.2d at 237. (Emphasis added.)
Keeping in mind the polestar, and in the light of the circumstances surrounding the making of the will, there is no need to apply technical rules to construe the Kalouse will in violation of the testator’s wishes.
IV. There is a latent ambiguity in the Kalouse will. A share was given to Frank Nespor who was to take equally with the testator’s “other first cousins.” But Frank Nespor was not the testator’s first cousin *109and the amount of his share would depend upon the number of “first cousins” he was to share with. Of course extrinsic evidence may be admitted to explain an ambiguity. In re Estate of Miguet, 185 N.W.2d 508 (Iowa 1971).
V. We have previously approved and applied the following:
As indicated in section 52, a failure to make a sufficient objection to evidence which is incompetent waives any ground of complaint as to the admission of the evidence. But it has another effect, equally important. If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. The incompetent evidence, unob-jected to, may be relied on in argument, and alone or in part may support a verdict or finding. This principle is almost universally accepted, and it applies to any ground of incompetency under the exclusionary rules. It is most often invoked in respect to hearsay, but it has been applied to evidence vulnerable as secondary evidence of writings, opinions, evidence elicited from incompetent witnesses or subject to a privilege, or subject to objection because of the want of authentication of a writing, or the lack-of-knowledge qualification of a witness, or of the expertness qualification. .
McCormick on Evidence, ch. 6, § 54 at pp. 125-126 (2d ed. 1972). Tamm, Inc. v. Pildis, 249 N.W.2d 823, 833-834 (Iowa 1976); In re Marriage of Meyers, 228 N.W.2d 64, 65-66 (Iowa 1975); State v. Johnson, 223 N.W.2d 226, 228 (Iowa 1974); State v. Schurman, 205 N.W.2d 732, 735 (Iowa 1973).
It must be conceded that this well settled rule has been inconsistently applied in cases of the parol evidence rule. In some cases we have approved the use of evidence received without the parol evidence objection. Kline v. Reeder, 203 Iowa 396, 212 N.W. 693 (1927); Berry v. Kritenbrink, 185 Iowa 1121, 171 N.W. 582 (1919); Wiseman v. Thompson, 94 Iowa 607, 63 N.W. 346 (1895); Zabel v. Nyenhuis, 83 Iowa 756, 49 N.W. 999 (1891). We have also indicated that the parol evidence rule is one of law and applies even without objection. Tamm, Inc., supra; Randolph v. Fireman’s Fund Ins. Co., 255 Iowa 943, 124 N.W.2d 528 (1963); Williams v. Williams, 251 Iowa 260, 100 N.W.2d 185 (1959); Martin v. Stewart Motor Sales, 247 Iowa 204, 73 N.W.2d 1 (1955).
Whichever view is taken in the special case of parol evidence received without objection, it remains significant that the evidence was stipulated into the record without objection in this case. The parties here did not dispute admissibility of the scrivener’s testimony, but rather went directly to their contentions in their dispute as to whether Louie Kalouse left his property to individuals or created a class gift.
Under all of these circumstances I believe the testimony of the scrivener which was in evidence could be considered on the question of Louie Kalouse’s intent.
VI. The question then shifts to whether the testator’s intent was to make a class gift to his first cousins. The answer should control the claims of the heirs of the testator’s predeceased first cousins:
. Generally if the gift is to a class the surviving members take the whole gift, if to named individuals there is no such right of survivorship to the other named beneficiaries but the heirs of the deceased beneficiary take his share under the antilapse statute
Gunn v. Wagner, 242 Iowa 1001, 1010, 48 N.W.2d 292, 297 (1951). See also In re Estate of Huston, 224 Iowa 420, 275 N.W. 149 (1937); In re Estate of Gordon, 213 Iowa 6, 236 N.W. 37 (1931); Friederichs v. Friederichs, 205 Iowa 505, 218 N.W. 271 (1928); In re Estate of Carter, 203 Iowa 603, 213 N.W. 392 (1927); Redinbaugh v. Redinbaugh, 199 Iowa 1053, 203 N.W. 246 (1925); Parish v. Welton, 194 Iowa 1274, 190 N.W. 947 (1922); Downing v. Nicholson, 115 Iowa 493, 88 N.W. 1064 (1902); 96 C.J.S. Wills § 692; 80 Am.Jur.2d Wills § 1408.
*110The foregoing authorities recognize that the question of whether a testamentary gift is established is one of the testator’s intent. Generally, as previously explained, the question is to be determined from the language of the will. Because of the intention of the testator to make a bequest to each of his first cousins, our antilapse statute, section 633.273, The Code 1977, applies:
If a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will, the intent is clear and explicit to the contrary.
There was no class gift and the trial court erred in holding there was.
VII. The next matter to consider is the interest of the appellant Richard Ray Ben-hart. Benhart is the heir of a first cousin of the testator who died prior to the date of the execution of the will. I note the following:
With respect to the question whether a legacy to a person named or otherwise specifically designated comes within the operation of an otherwise applicable anti-lapse statute where the legatee was dead at the time the will was made, some courts take the position that antilapse statutes are directed against gifts which have technically ‘lapsed,’ and that since a gift to a dead person is a ‘void’ gift, such enactments are inapplicable thereto. The prevailing view, however, is to the effect that the distinction in question is immaterial in the present situation and that statutes to prevent lapse apply to a case in which the beneficiary named was dead at the time the will was made. Occasionally the statutes are so drawn as to be expressly applicable to the case of a person dead when the will was made.
80 Am.Jur.2d, Wills, § 1681. See also 96 C.J.S. Wills § 1222a; Annot., 3 «A.L.R. 1682, at 1684.
Our antilapse statute, § 633.273, has been previously quoted. Its language and scope could hardly be broader or more comprehensive. In Downing v. Nicholson, supra, we commented on § 3281, predecessor to our present Code provision which embodied the same language. We said:
. . The mischief this statute was enacted to cure was the common-law rule to the effect that a devise to one who dies before the death of the testator lapses. McMenomy v. McMenomy, 22 Iowa 148. Nearly every state in the Union has adopted statutes similar to this, although few are as comprehensive. .
115 Iowa at 495, 88 N.W. at 1065. We also said:
. For more than 50 years it has been the policy of this state to prevent lapses where a devisee dies before the death of the testator, and this has been done by the use of the broadest and most comprehensive language. .
115 Iowa at 495-496, 88 N.W. at 1065. A standard treatise, Kurtz & Reimer, Iowa Estates: Taxation and Administration (1975), describes our antilapse statute as “. . . one of the broadest statutes enacted in any jurisdiction, saving from lapse a bequest or devise to any devisee, other than the decedent’s surviving spouse. . . ” § 18.31 at page 968. We adhere to the prevailing view and apply tne antilapse statute to legatees who died before execution of the will.
As previously explained the testator did not intend for his residuary devise to be a class gift. Accordingly this case differs from that in Downing v. Nicholson, supra, in which we denied a son’s claim of his parent through the antilapse statute. Significantly we did so in that case because the gift was a class gift.
In light of the foregoing authorities, we should take the Kalouse will by its four corners, and consider it in the light of the testimony of the scrivener. I think that the testator intended to provide for all of his first cousins, including the one who died prior to the execution of his will.
The appellant Benhart should share under the antilapse statute. The presumption arising from the antilapse statute is unre-butted. See Tuecke v. Tuecke, 257 Iowa 199, 206, 131 N.W.2d 794, 798 (1964). Accordingly, I would hold the bequest to Ben-hart is preserved.
*111In summary I would reverse the judgment of the trial court and remand the case with directions to construe the residuary clause as a bequest of an equal share of the residue of Louie Kalouse’s estate to all his first cousins, or their heirs under the anti-lapse statute, and to Frank Nespor.
McGIVERIN, J., joins in this dissent.