1. In construing a will the object to be attained is to determine the intent of the testator as gathered from the whole document as applied to the testator's situation. In seeking that intent, the language of the will must be construed in the light of the interpretations adopted by the courts.
2. Although the terms "surviving" and "survivor" make the devolution of an estate depend on the hazard of one person outliving another, and so are likely to bring about an unequal and unreasonable distribution, nevertheless the courts of New Jersey have uniformly resisted the pressure of the argument that they disregard survivorship in order to avoid such result.
3. The will in this case contains no provision that would satisfy the rule that has been developed by the courts of England, in the case of a will such as the one here in question, that if there be added a limitation over upon the death of all the life tenants without children, then the children of the predeceased tenant participate in the share of one who dies without children. The function of the court is to construe a will, not rewrite it; and in this case the gift over is insufficient to create, by implication, a devise in remainder to the issue of the life tenants.
4. The argument that the gift in remainder to "the surviving child" under the will in this case vested on the death of the testator, subject to divestment by death, and that "on the death of all remaindermen prior to the determination of the particular estate, the remainder of each devisee is not divested but remains vested in each remainderman or his heirs or representatives," is not applicable here since the gift to "the surviving child" was contingent and never vested.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Bigelow in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 14.
For reversal — None.