28 Rutgers L. Rev. 251 (1974-1975)
Justice Nathan L. Jacobs - The Doctrine of Probable Intent

handle is hein.journals/rutlr28 and id is 261 raw text is: JUSTICE NATHAN L. JACOBS-THE DOCTRINE
OF PROBABLE INTENT
ALFRED C. CLAPP*
The genius of Justice Nathan L. Jacobs, in our precedential system
of justice, is strongly marked by an unwillingness to be confined to the
precedent-the was must be measured against the ought.1         His
luminous approach to the law during his 23 years on the New Jersey
Supreme Court has been a large factor in having made that court the
strongest state court in the country.
This article deals with but a small area of the law to which he made
contributions, his decisions on the construction of wills and the admis-
sibility into evidence of the testator's direct statements of intention to
aid in construction. The same perceptiveness that appears elsewhere
in whatever he did is conspicuous here.
In Fidelity Union Trust Co. v. Robert' and In re Estate of Cook'
he expounded the concept that has come to be called the doctrine of
probable intent.   As Justice Jacobs expressed it in Robert, the
doctrine demands of the court a readiness when construing a will,
to strain toward effectuating the testator's probable intent or his
subjective intent, so as to accomplish what he would have done had
he 'envisioned the present inquiry.' There is nothing so very novel
in the concept of probable intent, as providing the court with a
medium for resolving some aspects of a constructional issue. Simes,
and the New Jersey Supreme Court before Robert, employed the term
in defining the court's approach to this issue.5 Indeed, the Restate-
ment of Property also employs the term, although more cautiously:
[T]he 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
* Attorney, Clapp & Eisenberg, Newark, New Jersey; Former Dean, Rutgers Uni-
versity School of Law; Former Presiding Judge, Appellate Division, Superior Court of
New Jersey; Author, NEw JERsEy PRAcric--WiLLs AND ADMINISTRATiON (1962).
1. This approach follows the views put forth by one of his preceptors. See Pound,
The Ideal Element in American Judicial Decision, 45 HARV. L. Rlv. 136 (1931).
2. 36 N.J. 561, 178 A.2d 185 (1962).
3. 44 N.J. 1, 206 A.2d 865 (1965).
4. 36 N.J. at 564-66, 178 A.2d at 186-87.
5. See 2 L. SIMES, FUTURE INTERESTS  307 (1936), cited in Morristown Trust
Co. v. McCann, 19 N.J. 568, 572, 118 A.2d 16, 18 (1955).

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