*1 IN THE MATTER OF THE ESTATE R. OF BERNARD ARMOUR, DECEASED. THE PRESIDENT AND THE DIRECTORS OF MANHATTAN COMPANY, L. GEORGE ARMOUR AND GEORGE F. LEWIS, AS OF THE EXECUTORS ESTATE OF BERNARD ARMOUR, DECEASED, ARMOUR, R. AND GEORGE L. INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. MAR- ARMOUR, RUTH, THA S. AS GENERAL GUARDIAN FOR ARMOUR, RACHEL AND TOBY DEFENDANT-APPEL- LANT, AND E. CARL SCHUSTAK AND OSCAR R. WILEN- SKY, FORMERLY APPEARING HEREIN AS GUARD- RUTH, IANS AD LITEM FOR RACHEL AND TOBY ARMOUR, DEFENDANTS. 1952— n
Arguеd September 30 and October January 19, Decided 1953. *6 T. Anthony Augelli Mr. tbe cause for appellant argued Milton, John Messrs. Milton, (Mr. & counsel; McNulty Augelli, attorneys).
Mr. Marshall Crowley argued the cause for respondent John A. Armour, L. (Mr. Aclcerman, George individually Toner, Messrs. counsel; Crowley Ackerman, attorneys). ids Messrs. D. and James Elmer J. Bennett sub- Carpenter mitted a brief on behalf of the executors of the respondent estate of Bernard R. deceased (Messrs. Carpenter, Armour, Gilmour Dwyer, ids attorneys).
The court was delivered opinion J. We have here a testamentary Heher, interpretative Article 12 of the will of the deceased problem involving Armour, Bernard R. terms following: hereby my give brother, George Armour, privilege “I D. and right any year my (1) at within time one from the death to date of purchase Products, all the shares of stock of American Inc. Aniline may my death, purchase equal price I which own at the time of at a stock, to the book value of said shares of such book value to be deter- invеntory mined an taken and a balance sheet struck at the end year corporation during my of the fiscal of said which shall death occur, including any and such book value be determined Without patents, good intangible valuation whatsoever for will or other assets corporation. my I said direct executors and trustees sell my my upon the said of stock shares said brother such terms may, executors trustees their sole discretion in the determine should, my period (1) year event that within he of one after purchase death, elect to the same. Subject foregoing provisions Twelfth, to the of this it is Article my my wish that executors and trustees to hold should continue intact, advantageous, long practicable as in so their discretion shall or seem my following Heyden companies: interests in the Corporation, Inc., Products, Chemical American Aniline Charles Hellmuth, Siegle Ansbacher-Siegle Inc. Division Color any Corporation, corporations, expressing or succеssor but in this my trustees, hamper wish I do not desire to or restrict executors discretion, selling of their exercise absolute or otherwise disposing any upon such such interests at time such terms as they may proper.” deem exe- 1,
The testator died 1949. The will was December 24, cuted 1944. It drafted who lawyer was February L., brother, is one of the executors. testator’s George was named as a co-executor. At the time of execution will, and had the testator owned his registered 99,334 name on the shares of common company’s books Products, stock of American Aniline Inc. On Oc- capital tober 1946 he five additional shares of the acquired of the stock stock, and thereafter his company’s holdings 99,339 12, 1948, totalled until when he trans- July shares 99,000 Chemicals, Inc., a ferred shares to body Sterling *7 31, 1945, entire issue October whose of corporate organized testator, stock was owned then and at all capital by 1, times thereafter until his death. On April Sterling Chemicals, Inc. was with The Ore & Chemical Corpo- merged ration, testator, another body wholly owned corporate under the name and of Chemical corporate style Sterling & Ore whose entire stock Corporation, outstanding capital remained in the until death. The testator’s his ownership 12, Aniline shares of which on 1948 had been July 99.000 Chemicals, transferred were by Inc. formal trans- Sterling fer made October the name of registered Sterling Chemical Ore At the time of the testator’s Corporation. & 99,719 death there were shares of Aniline of outstanding, which 339 were name and shares registered testator’s name shares of Chemical & Ore Sterling 99.000 99,000 The certificate for the Aniline shares Corporation. issued in name the latter of was found corporation 28, 1949, unendorsed, December the testator’s New Chemicals, York office safe. Prior to the merger Sterling 99,000 had securities other than the Inc. no shares of had Aniline and it no safe box. The testator was deposit From the time the merger its Chemi- president. Sterling in its cal & Ore own securities Corporation possessed right stock, than Aniline and had a safe other deposit box. treasurer this The testator was These corporation. corpo- were and distinct entities separate rations to serve employed Chemicals, the testator’s varied interests. business Sterling and its Inc. successor had their own corporation assets other than the Aniline stock now controversy, and their own liabilities. The business interests corpora- successor tion were extensive; owned a and operated at plant Newark, New Jersey, 10 acres of land comprising buildings.
When the will was executed, the testator and his wife were There separated. were three infant daughters are they marriage; parties this suit represented their mother as their general guardian. testator had three brother, sisters and one There was a close George. brotherly tie between the testator and George. George many years had been executive vice-president Aniline, and devoted to the corporation’s interests and affairs; his brother’s the testator had on determined succession to his George’s entire interest in Aniline was, as it then of all consisting but few of the stock, shares at outstanding capital the price provided formula embodied in the will.
The Superior concluded Court his owner- “through of all of the ship stock of Ore & Chemi- outstanding Sterling cal 99,000 the testator’s Corporation,” “ownership” of the *8 shares Aniline of stock in the name that com-' “standing of was as and pany complete effective as it was the when drawn,” was and that the cited clause of the will was these of as if the operative upon shares stock in registered death; also, testator’s name at the time of his that the term used assets” contained the formula was “intangible price by testator its sense” exclude considera- “ordinary legal to “bank tion of accounts and investments deposits, receivable in securitiеs” in the book the stock value of determining in the event of the exercise the option of purchase.
The of this construction the validity subject constitutes matter of the appeal.
I. the “to The by very option insistence is that its terms I may the “which all shares of stock” of Aniline purchase “the 339 shares time death” only own at the of embraces my his death at the time of which testator owned concededly Chemical 99,000 by and not-the shares then owned Sterling & Ore Corporation.” the primary
The of is that argument rationale the dispo- testamentary the of the natural of words significance is inclusive sition, context, the not considered in of light death were the shares which at time of testator’s of the sole stock- “owned of which he was corporation “owned, holder,” the testator then only but such shares as do not and the circumstances individually,” surrounding warrant the broader construction. doubt that this testamentary provision
There can be no the testator’s brother George was designed give terms, thе whole on the stated buying, practically option Aniline, the shares proprietorship represented stock then in the testator’s capital registered corporate in manifest devoted George’s name. This recognition of the affairs and large fruitful service management Aniline’s, with affec- coupled brotherly interests which were continued tion concern for his well being. mind,
It is clear that the testator did not have equally will, before the time the curtailment at making as radically ’his in Aniline so his death of stockholdings thus beneficial interest modify provided George. involves continuance intact of testamentary plan the other corporate enterprises Aniline and controlled if not the sole primary testator. It established the Aniline to the the transfer of stock testator’s aim of was reduction of his tax lia- wholly-owned corporation or in any wise purpose annulling without bility, thought made thus for the benefit of testamentary disposition George.
The nеt income of had increased approxi- Aniline from $430,000 in 1946 The mately $1,000,000 in 1947. plus testator was then in the he was brackets, income top apprehensive income tax difficulties later material- which ized. His tax indebtedness at the time of his death extended back to 1946. There was a assessment for deficiency $42,000. of almost dividends in were year Aniline’s that $50,000. Eor 1947 there was due for taxes year a balance $185,000, plus and an amount- additional tax deficiency $28,500. ing testator’s Aniline dividends that year $100,000. were almost In 1948 he received January a dividend from Aniline he nearly $250,000, knew that more would He his presented problem forthcoming. to counsel, and the result transfer stock was the of the now in issue. Before the was consummated Federal plan Treasury voiced the Department opinion that the transfer would be tax-free. There was from testimony counsel officers of and Aniline Sterling that stock was transferred minimize the solely to testator’s income taxes. The testator offered itHe, no other reason. was proved same witnesses, exercised full dominion and control of Sterling. A week after the transfer Aniline stock, of the a dividend of declared; $1 share was per and like dividends were provided October and December $300,000, which aggregating under the stock transfer went into the of the treasury transferee corporation. Even without dividends, these $500,000. testator’s income tax for 1948 personal was To avert the apprehended Chemicals, Inc. danger Sterling “a said, considered being personal it is holding company,” was with corporate body consolidated The Ore & Chemi- cal another Corporation, wholly-owned to form corporation, Chemical & Ore then and until Sterling Corporation, his demise owned the testator. The wholly testator was the thus his directing genius corporation formed; was the sole without formal superintendency, largely directorial such as authority, derives from entire ownership beneficial interest corporate property. It fairly *10 retained-in his from that the testator deducible the proofs Aniline stock the certificates for personal possession corporation, in the name of his wholly-owned while registered death the certificate and after the On his before merger. with safe, was in his personal together for the shares found in his indi- for Aniline the certificates shares of registered com- name and in chemical vidual his other stockholdings panies. the Aniline that the transfer of
Thus, it is established minimize taxes. So much stock was income designed conceded, seriously disputed. at least is not seems to be or had also in it is that the testator this process But urged and for an acquiring view the of means facilities provision and the formulae interest another chemical corporation We do not find and assets of other operating companies. latter considera- that this was a moving ground believing motivation, this tion; even there was additional but though was the avoidance of taxes what the dominant purpose measure, events, and, deemed lawful at all that was a material, see. would as we shall circumstance not be The is the essential and basic question quality meaning in relation to the assessed testamentary disposition, insists appellant circumstances. surrounding guardian “individual as ownership, that the word “own” signifies from different such as beneficial something distinguished interest, such and thus she or as corporate ownership”; make restricted technical sense of term would legal of the testator’s intention. By alone determinative construction, would be laid emphasis upon this undue at the time of my letter of the “own death.” strict phrase Indeed, “entirely clear,” it is that this urged language and the construction,” and so there is room for “no judge have evidence cir- not considered of surrounding “should cumstances.” his death the did at the time of testator not
Although stock, title beneficial enjoyment legal hold was his the full benefiсial inter- the shares throughout, est was within his and exclusive dominion complete control, and at his his own property, absolute as disposal stock virtue of his of almost all the ownership outstanding third to the corporation, subject holding rights until the end as so persons against corporation; he considered himself the “owner” of the shares undoubtedly common, term, sense of the and the shares ordinary While within the testamentary provision question. *11 the view the this denies appellant guardian consistently the the applicability of doctrine of ademption, acceptance of the construction tendered her would in effect annul the by as it was the testator at testamentary option by conceived the time the execution of the will. It would give the transfer of the stock a character incidence plainly at variance with the the testator then had in view. object
If it the be said that the to be served transfer purpose title, a divestiture and it would not be suggests complete so, effective as a device unless that were tax-saving nonetheless the that the fact the testator’s ownership subject matter remained unaltered in essence though changed in form. Whatever its status for tax the transfer purposes, retention interest substance constituted a of the beneficial in the and its use and the property enjoyment through device as from the conventional trust corporate distinguished relation; and it is the the substance of transaction determines its relevance and on this in- legal consequences as to the intention. quiry testamentary
The evidence of the motivation for the transfer of the admissible, Aniline was not as stock indicative necessarily in itself of the testatorial intention at the time of the making will, rather the the prove brrt continuance of the testator had in when he made which view ownership will.
An animo instrument executed tesiandi becomes at the death of the testator. The testаtorial inten effective itself, in the tion is that which finds read expression and evaluated relation to attendant circumstances. 270 4 N. J. Fox,
In 7 In re Goldfaden, re N. J. 450 (1951); & A. Fisler, 587 133 J. 421 Eq. (E. In re (1950); N. 1878), N. 402 Ct. Evens, Griscom v. 40 J. L. 1943); (Sup. And needless affirmed 42 N. J. L. 579 & A. 1880). (E. the relevant circum nature of say, very inquiry are made, and stances are as when the will is such exist only some known to the will is for purposes testator. a Although the rule is not death, applic from the speaking regarded J. Eq. N. Gray Hattersley, able to its construction. Henderson, N. J. Eq. Henderson v. 1892); (Ch. (Ch. at time his death the Here, the testator was matter within the' intendment of subject owner of did not The transfer of the shares testamentary option. a loss of the ownership contemplated constitute terms of the merely but operative option, change manner dominion mode and which testator exercised did While the title not over subject property. legal death, reside in the at the time of his sub testator He had full stantive was his. control ownership in which the title sole reposed, corporаtion legal *12 ultimate the corporate property beneficial of ownership all a few the the holder of but shares of outstanding corpo stock; and the intention will be rate testatorial capital the thus the by effectuated control exercisable through the Latorraca v. executor as testator’s successor interest. Latorraca, 132 J. 40 affirmed 133 N. J. 1942), N. Eq. (Ch. Roest, & A. Trust Co. v. Fidelity Union 1943); Eq. (E. 113 N. J. To hold otherwise would Eq. (Ch. a the transfer the shares and quality to attribute to of legal within the of the not consequence plainly contemplation his intention. testator, and do violence to The principle of has It is not a case of no extinction ademption application. matter of a testamentary disposition, or an subject revocation the of by of circum implied provision change stances, which latter does not constitute ademption, strictly.
II. even, It that, so, is urged erroneously interpreted judge of applied testamentary formula purchase-price book value determined an sheet by and balance inventory “without valuation whatsoever for any good including patents, will or other assets.” intangible that conceived “difference of judge opinion” “ as to the ‘intan
among parties words meaning assets’ as gible used the testator strongly suggests existence of a latent and “to resolve that am ambiguity,” he admitted extrinsic evidence in the form of a biguity” declaration of intention said to have been understanding testator, made by the and then read the as inclusive phrase $1,003,320.97; of “cash in banks on hand” amounting $377,542.01; securities, accounts receivable in aggregating investments in securities of cluding wholly-owned subsidiary $188,025; and will in the sum companies, totalling good $188,526.22—all this to Aniline’s unconsolidated according balance sheet of December 1949. The sheet did balance not include patents assets; among company’s aught there were appears, none.
It is in the construction elementary рrinciple wills that consideration controlling effect of the words as written rather than the intention actually actual testator of the written words. The independently is not what the question intended, testator or what actually he was minded to but rather the say, terms meaning chosen to state the and all the testamentary purpose; rules of construction and extrinsic evidence are in permissible aid fulfillment of the intention reasonably comprehended in the words, and are their governed accordingly; operative force is confined basic that a statutory requirement inbe and attested wit testamentary disposition writing Paul, nesses. Evens, Griscom v. cited Paul v. supra; *13 N. J. Yet (Ch. 1926). the words are to assessed Eq. be circumstances; the of the facts and light surrounding
and extrinsic evidence is admissible in nature and degree
sufficient to
the
place
judicial
interpretive authority
of the
place
will,
testator at the time
the
making
the better to
words,
discover the true sense
and to
uncover and resolve
but not to
into the
ambiguity,
import
Wensler,
will an intention alien
to
Dahmer v.
expression.
In intent, common “other assets” phrase intangible is not inclusive of all as from intangibles distinguished if corporeal that were property, and purpose, design then there would be no reason whatever for the antecedent enumeration of will, and in their patents nature good very exclusive of current fixed assets such as bank deposits, accounts receivable, and securities. Such is normal grammatical and intrinsic force significance words. terms are limited general by the particular; generic sense, restrictive words association. Intention mental action in a formulated revealed culminating design words; and we are bound assume to that all the words play a significant part, to their normal according usage, out- intended lining concept the under-’ conveyed of others. standing
It is fairly to be presumed that mention specific would have beеn made of bank deposits, receivable, accounts and securities, substantial very assets an constituting integral of the part structure, financial if corporate the testator had intended to exclude them in the book value of determining the stock, rather than leave that to the uncertain purpose of a implication clause. general Why enumerate patents alone, will if the testator had in good view current assets class, former such as are first in mind when corporate assets are under consideration? we cannot Certainly, ignore the natural words, significance particular in searching for the communicated the whole thought of the expres sion. are not Vagueness uncertainty to be expected moment, affairs such where, especially here, a mere gives option purchase affects price to a
273 three very substantial tbe tbe testator’s interest of degree children in the v. estate.’ Dahmer residuary Compare Wensler, intention; cited and supra. Words are tokens of de- they are effective the only they delineate testatorial with sign reasonable certainty.
This is an ease for the of the maxim apt application noscitur a sociis and the rule of corollary ejusdem generis, the and in embodying principle grounded grammar, logic reason that and associated words looked to phrases may be for the of doubtful and significance words, where general words, words follow in particular an enumeration describing the the words are to subject, general only construed embrace objects similar in to nature those enumerated the ante- cedent words. The word specific “other” generally read as “other such like,” so as restrict the to meaning terms to general those and ejusdem generis, thereby both effect to the give general words. particular words are particular class, treated as indicating words as general all embraced in the class comprehending not specifically enumerated. The antecedent although spe- cial are restrictive; words otherwise, would essentially they have no Camden and Trust v. meaning. Deposit Co. Safe Cape Co., 102 351 May Illuminating N. J. Eq. (Ch. means,
Ejusdem generis the same literally, “of kind.” It is an doctrine, ancient back going Archbishop of Case, 2 Co. Canterbury’s Rep. 46a, 76 Eng. Reprint designed words, to reconcile (1596), specific general abstract, when considered in the incompatible with keeping canon interpretation none of words used are effective, be deemed and all are superfluous to be rendered if so as to advance the possible, true testatorial intention. If the words are to have their natural general meaning, abstract, then the antecedent would be particularization vain, for the utterly class would general encompass In enumeration. particular science is deemed but legal fair to conclude that if testator had employed general words in their sense, unrestricted he would have- made no but, case involving as was said particular,
mention of “one act, compendious” would 'have used but a legislative Walton, Eng. R. Reprint T. Rex expression. the whole If the testator had view category 210 (1793). A? description then why particular of intangibles, *15 or tradesman, artificer, workman that “no statute providing work labor on do or any whatsoever” shall person other Rex farm laborers. held Sunday was inapplicable Eng. Reprint 7 & C. Whilmarsh, Inhabitants B. of Co. also, and Sand See, & Hill Gravel Curtis (1827). 1920), Commission, 421 (Ch. 91 N. J. Eq. v. State Highway the and cases therein cited. universal
The of principles maxim is those grounded of of the intention directed to the effectuation acceptance like is other the maker of the instrument. It applicable, has to put rules of whenever a construction be grammar, difficulty a will, statute, or and upon although agreement; it, results from arises this frequently applying yet The еxposition facts of individual case. particular instrument, and on the whole every will must founded be made ex antecedenlibus ei consequentibus optima fit therefore, “in legal and this interpretation department necessarily the maxim noscitur sociis investigation, Broom's Maxims Legal (9th frequent practical application.” is made from ante- 374, 375. “The best ed.), interpretation the rule runs of construction. so consequents,” cedents class; and Here, constitutes a specific enumeration unlike the words do not exhaust particular genus, 1939), Rosensohn, 125 N. J. 1Eq. (Ch. case Hersh v. (E. J. & A. The converse affirmed 127 N. Eq. of the nonownership the latter not be affirmed may formulas, “trademarks, tradenames, copyrights, processes well be like” when the will was made. There might time the book determining when the came ownership such Indeed, there were no value of the stock under option. when the testator intangibles among corporate patents died; and there is no when the pоssessions of such showing will was executed.
The enumerated subject clause and the things corporate securities, bank deposits, receivable, accounts are diverse sufficiently in ’character constitute different classes. The latter comprise current assets more categories akin for all rather than practical purposes to tangible and so considered intangible, corporation’s practices. instance, For cash on hand and in bank accounting were treated differences, as one. AVhilethere are technical bank deposits are made for and convenience dis- safety bursement, and for are the same. corporate purposes they The words “other assets” denote other assets intangible ejusdem with generis those before is no There specified. Quite contextual manifestation of an contra. intention contrary, burden, the value tax estate, considering and the testator’s three recognized duty his children. subject matter does not involve an absolute but rather gift *16 an option purchase corporate business property represented stock; the shares and the provision the exclusion in of assets the book value of the determining stock is to be reasonable construction with given keeping the letter and spirit used, terms assessed in the light of the whole instrument and the attendant circumstances. The restricted use of the words general suggested by rule of is a ejusdem generis compelling inference. This would have little interpretive principle or no practical or force were not utility these circumstances. operative In Funk & New Standard Wagnall's Dictionary of English Language “assets,” under the (1941), heading * * * term assets” is thus defined:' “Assets “intangible a. such values as accrue to Intangible (Finance) a going trademarks, as goodwill, copyrights, franchises, business or The 1951 the like.” edition of this has dictionary the same definition. And in the College Americаn Dictionary (Ran House, dom 1949 ed.), under heading there “intangible” this “3. an definition: asset) only in con (of existing a business.” else,
nection. with
as
goodwill
something
Smith, 82
Plaut v.
This
has judicial
definition
recognition.
nom. Plaut
affirmed sub
Conn., 1949),
F. Supp.
(D. Ct.
v.
2,A.
1951);
The hearing judge it of context and accorded to assets” out intangible and as such and all-embracive generic meaning, absolute intention token of irrespective deemed the conclusive inhеrent qualification, associated words. But the was aided this adduced judge testimony from the scrivener that the testator had oral made declarations indica- tive intention so found.
The testified, scrivener he over that called the objection, testator’s attention to the New of a York case holding Chemical involving Heyden 1928, decided in Corporation, that “cash in bank asset, would not be a and tangible therefore would be said, assets. And he ‘It intangible Okay, is ” This conversation had George.’ was with the testator “prior his the will.” witness, to signing who was a Aniline, stockholder of and its counsel, and general also one will, executors of the conceded that the testator was familiar with Aniline’s practice and accounting procedure under the “current classifying assets,” in heading of assets, bank, schedule “cash in investments, accounts re- ceivables, and land inventory”; and under building “fixed assets,” followed will. He good continued: your now “Q. Is it to statement this Court that Mr. Armour in- convey right—to give tended his brother to his brother an option purchase .paying anything this stock without cur- bank, assets, receivable, rent cash in accounts and A. That securities? intention, is what I assumed was his from the Q. conversation. And why you way you why is the will drew did? A. That I way Now, you give any drew this I did. did Q. consid- saying, bank, investments, eration to ‘Exclusive of cash in and ac- counts A. I receivables’? did not.” The cited New ex York ease rel. (People Heyden Law, America, Chemical Co. Inc. 249 N. Y. N. E. 558 considered a statute which ex (Ct. App. 1928)) cluded from its definition of personal “tangible property” bank, stock, bonds, money, deposits notes, shares of credits or evidences of an interest evidences property of debt. Yet that would not be of critical on importance inquiry, this if the evidence were otherwise relevant. The competent then be, told, would what was testator question what was at the time resulting understanding of the exe *18 278 the conversation this, will? As to the time of
cution the the testamentary “prior” was not that was given except adduced, entirely although act. We doubt that the thus proof credible, certainty requisite the of definiteness and has quality testator’s understanding sustain the inference of the is credible, it not intention the by drawn judge. Although the The subject. But there is no need to pursue sufficient. testamentary purpose evidence was as a evincing incompetent in not the will. expressed construction, by
The is to be resolved question posed for the testatorial intention. and not an extrinsic search by is to be col the testator’s intention elementary It seen, will. we have it is As lected from words shall be in and attested writing statute that wills by ordained witnesses; and it that the intention testamentary follows by or in R. 3 :2-3. either in whole S. parol, part. cannot rest testators, made not witnesses.” Thomas v. “Wills are Houston, N. E. Ct. C. S. (Sup. of air intention of that independent Parol evidence has obviously terms conveyed by reasonably medium of nor is it virtue as a receivable interpretation, no in substitution for the actual intention proоf of direction that statutory policy written expression. executed to the prescribed writing according wills be fraud forbids protection against peremptorily (cid:127)formalities testamentary guise under con dispositions parol known The attendant circumstances to the testa struction. are adducible to place interpretive at time author tor testator, such, as the example, situation ity and extent testator’s natural property, nature beneficiaries, contemplated of his and his bounty, objects of the words of the to shed light upon meaning thus not admissible establish a will; extrinsic evidence is but understanding intention or not embodied testatorial will itself. the testamentaiy expression may
The terms of varied, not or contradicted ex- enlarged, but elucidated trinsic evidence. The meant is not what the testator question *19 to what express, but the words do read in relation express, to the and the in aid of circumstances canons surrounding interpretatiоn. not what the inquiry is testator intended to have done, mean, “but what after the words of the clause to it the Evens established rules of construction.” applying v. Griscom, J., 42 N. J. & L. 579 A. C. Beasley, (E. 1880), for the Court Errors and how difficulty, “No Appeals. ever devise, the great, obscure deciphering language or in intricacies in testator’s unraveling descriptions of the or person to which his property testamentary dispo sition should will resort” apply, to extrinsic evidence. justify Evens, Griscom 40 v. N. J. L. 402 Ct. (Sup. 1878), Depue, J., for the old “While full should be Supreme Court. force testator, to the intent of the given intent must be yet gathered known rules application of of construction and interpretation, established oft-repeated long v. 71 adjudications.” Schueler, Tuerk N. J. L. 331 standing & 1904); A. Wills (E. Wills, v. 72 N. J. 782 1907), Eq. (Ch. affirmed 73 N. J. 733 & A. Eq. 1908). To same (E. Scott, effect: Camden and Trust Co. v. 121 Deposit Safe N. J. 366 & A. Eq. (E. law,
At common declarations of the testator may be invoked clarify a latent but to resolve not ambiguity, a This ancient patent ambiguity. is an rule in aid of con struction; does not the door to the open introduction of evidence of an intention of that independent expressed An from the of the writing. uncertainty arising words will or other instrument is but latent where the patent; themselves, doubt arises not upon words but from some latent extrinsic or collateral matter. A “is where ambiguity written the words of a instalment are plain intelligible, facts, but reason extraneous certain and definite those words is found application impracticable.” Hand N. J. L. fman, v. Ct. 1825). Where there (Sup. Hof construction, is to ascertain simply question the meaning he has testator it should language employed, (cid:127), testamenti itself ex visceribus from be done contradict, would “the evidence or parol whether inquiry will, as drawn from its construction just vary, inadmissible, as terms”; so, if it is “manifestly tending by parol”; not be permitted wrought an effect produce inadmissible, if it it is with that construction “corresponds Den ex dem. Cubberly it is of no use value.” because N. L. 308 Ct. 1831). J. Cubberly, (Sup. distinction be- Lord for the historical We turn tо Bacon made commenting latent and patent ambiguities, tween maxim: his twenty-third on ambiguitas ambiguities of words: the one is “There two sorts of appears patens, latens. is that which to be and the other Patens *20 ambiguous upon instrument; latens is that which seemeth the deed or ambiguity, anything appeareth upon for that the certain and without instrument; of is collateral matter out the deed or but there some ambiguity.” breedeth the deed that This, said, he the standard which determined the was In words of extrinsic evidence. of Vice admissibility Chancellor Wigram: incongruity correspondence “It want of between the is or Wigram, ambiguity.” language a and the facts which raises latent Interpretation (2nd ed.) in Aid Wills Am.
Extrinsic Evidence of of p. 262. into fall explainable by .parol Latent ambiguities two classes: subject description “First, or matter where the the devisee inquiry will, found but it is clear on the face of the on devise is accuracy, equal persons things or more with
the words describe two or evidenсe, shown, by so, to which the testa it be extrinsic unless can uncertainty; apply, must fail to the devise tor intended his words for. description second, is or of the devisee devise where incorrect, part as, part is where devisee’s name and in correct residence, correctly given, other circumstance de or some but his Travers, scriptive person thing, v. is Miller 8 incorrect.” of the or Bing. Eng. (1832). 244, Reprint 395 131
281 a is “unless it be to show latent Parol evidence inadmissible e., one,”, or to “one which does not appear remove i. ambiguity, will, on face but lies hidden or person * * * or it thing subject ambiguiias of which treats. raise no for a or the aid of patens question witnesses, jury is one of but construction for the pure legal court.” Nevius 30 Martin, v. N. J. 465 L. Ct. A latent am (Sup. is biguity discoverable evidence, extrinsic only removable by such evidence. 23 Hyatt v. Barb. Pugsley, 285 (N. Y.) Ct. modified 33 (Sup. Barb. 373 1856), (Sup. Ct. v. 1861); Walpole 138, R. 101 Cholmondeley T. (1797) Eng. 897; Reprint v. H. 349 Pickering Pickering, N. (Sup. Jud. Ct. 1870).
In Clayton Lord W. Nugent, Eng. Mees. & Reprint card (1844), found after the death testator’s was held in evidence, inadmissible as a declaration testator show who were the meant to persons designated in his L., will K., M., B., letters Alderson, etc. held this to be the case aof “in patent which ambiguity, according all the authorities on this evidence to ex subject, parol plain will cannot admitted.” meaning legally be He continued: “Where, hand, on other words of in themselves are they
plain unambiguous, ambiguous by but become the circum- persons description stance that applies, there are two each whom parol may then evidence be admitted also to remove the ambiguity *21 created; Now, so and that rule is a reasonable one. in present case, property persons the the testator left has his to some designates by M., O., K., others; whom he the letters and but what persons meant, making will, .designate by he at time of his to the those letters, impossible guess.” it is to He cited for this Wigram proposition: “To define that which indefinite, is is make a to material addition to the will.”
This is basic to principle, maintain designed the of'the revealed intention. integrity It obtains in New Jersey. 282 appears settled, law of be well the that “The this state to to effect construing may will this court entertain extrinsic evidence of a circumstances, surroundings and the
the situation of the testator at may executed, placed time to end court the- will was the that the he possible position nearly testator and as as the of thus better com ; prehend meaning application language by and of used him the by touching meaning pur testator but pose made his and statements Barrett, Eq. 79 N. Hammel v. J. cannot be entertained.” Eq. (Ch. 1910), (E. 79 N. J. affirmed & A. on Lives Co. Insurance Pennsylvania And in Farnum for 1916), 87 N. Annuities, J. Eq. (Ch. Granting and J. A. (E. & 1917), 87 N. Chancellor Eq. Vice affirmed the rule and its underlying phi Backes thus epitomized : losophy may “Now, have Mrs. intention to execute been Batterson’s if may understanding power, that had done and have been her she beyond so, privilege go to her testament demon- but it is not our repre- dеclarations, a or of evidence of testator’s strations. Parol tending meaning him, and intention to to show his sentations made legal significance will, understanding and his different from its or of By rejected by incompetent. uniformly effect, has been courts writing, law, signed published be in and testator wills must witnesses; presence with and it would be inconsistent contradict, permit parol proof add to be introduced to law to principle requires to, explain an inflexible their contents. This or partial, it, consequence should he a even if the or adherence total, even care- The formalities failure intention. so testator’s value; fully provided virtually repealed, no itself ho the statute would would be supposed not if the written instrument when may deficiency testator, express intention to supplied, the clear prin- evidence. and mistakes corrected extrinsic No its firmly ciple or law of wills is more established with the connected this; application have and it sеems than
more familiar in its been well, upon by early judges, with and of later times as acted entirely steadiness, cordiality it coincided which shows how a necessary to the rule is A firm adherence to with their own views. avoid witness, misapprehension consequences perjury.” offering temptation danger of acceptance. These hare principles general existing “xVlthough known to testator circumstances *** evidence, yet his admissible when made his will are he language in his are used he intended declarations of what
283
*
* *
proof
inadmissible.
The offers of
did not refer
to circum
claimants,
stances known to
testator
or
his relations with the
interpretation
will,
but referred to his
of the
his
and his
words of
respecting
disposition
property.
intention
of his
Such evidence
clearly incompetent
rightly
Bryant,
was
and was
excluded.”
v.
Calder
231,
443,
440,
(Sup.
282
N.
A. L. R.
Mass.
E.
94
Ct.
Jud.
1933).
Evidence
the intention
aof
testator
“separate
apart
from that conveyed
will
ad
is not
language
missible for the
purрose
the instrument.
interpreting
* * * However
an intention not
in the
clearly
expressed
may
extrinsic
proved by
evidence, the rule
lawof
wills to be in
stands
requiring
as an
writing
insuperable
barrier against
the intention thus
into
carrying
proved
execution”; and while the words of the will are
read
to be
of the
light
circumstances under which the will was
made, the rule
that,
“is inflexible
of import
purpose
into
will an
ing
intention which is not there expressed,
proof of
circumstances
surrounding
inadmissible.”
Wensler,
Dahmer v.
cited supra
23,
Ill.
182 N. E.
[350
802].
In
Crocker,
Crocker v.
There is much greater danger
receiving
acceptance
a
intention than in the
of
of
testator’s
expressions
of contracts inter vivos. Smith
explanatory
evidence
parol
Ct.
Holden,
535,
1897)
v.
58 Kan.
50 Pac.
(Sup.
It also for error assigned an “unconsolidated” was determined from of Aniline’s shares sheet” of the company. rather than a balance “consolidated value of be that the book although seems to point is subsidiaries Aniline wholly-owned net assets of two balance sheet $380,000, the unconsolidated accepted roughly $150,000, its at investments in subsidiaries carries Aniline’s $230,000 less than the book value of or approximately a assets, and shows liability net subsidiaries’ approximately and- an Aniline one of the subsidiaries $38,000 owing by from the $3,000 to it other receivable of owing account sheet It said that the unconsolidated balance subsidiary. for use in this proceeding,” prepared “was especially sheets customarily prepared” as the balance “is not the same accountants,” its and the consolidated bal- for “by Aniline the Bureau of Internal Revenue were submitted to ance sheets the value for the purpose determining the executors estate tax for purposes. of the shares - price, computed is that purchase The argument review, “would include no under judgment directed net value of the subsidiaries’ the actual book valuation for assets, court’s view of lower and, intangible assets $150,000 for the carried any include value even would not subsidiaries, and, on the in its investments Aniline’s as” would reflect credit hand, “the purchase price other $38,000 debt to one of subsidiaries the purchaser $3,000 for purchaser while no charge reflecting subsidiary.” account receivable from the other balance consolidated is that The contention' contra sheet balance not the consolidated only sheet embodies sheet the balance subsidiaries, but also Aniline and its two which alone, appears the data of the parent company included 1949 is also sheet unconsolidated balance that years; sheet for in the consolidated balance without determined “was to of the stock since price other intangible will or valuation of the patents, good any *24 by contemplated sheet Aniline, balance assets” of corpora- that of the parent the will is of provision particular of subject is’ the whose stock tion alone—the comрany least, rested is, upon in at part This option. reasoning unsound. we hold to the will which of construction in .accord- redetermined of the stock is to be Since price enunciated, it suffices to herein ance with the principle shall be “book value” that -the will out point provides sheet and a taken “determined an balance inventory the testator’s fiscal of year at the end of the” corporate struck there must be sub- stated, therein death, as qualified The contem- with that provision. stantial compliance taken inventory as disclosed true book value plates year. the end of fiscal sheet struck at balance reason and alien to the exclusions or omissions Arbitrary the will are inadmissible. the formula prescribed of spirit in affirmed and reversed part according judgment conclusions; and the cause is.remanded to the foregoing the stated principles. further conformably proceedings I with the am accord J. (dissenting). Burling, II of the majority law in section of principles expressed to concur in the application I find unable myself opinion. of the court to majority principal question thereof by case, the construction (considered in this namely involved that Article I of majority opinion) portion, section “the L. Armour the will which 12, George gives at time within from the privilege right any year one (1) date my death to all shares American purchase Aniline Products, Inc., the time which I own at may * * death my *.” These words indicate direct distinctly and absolute of stock at the personal of shares ownership time of the testator’s death. do not indirect They import or equitable of the ownership ownership corporation through of shares of stock in another corporation.
The admissible extrinsic evidence in this case supports the clear of the will. It from the record is obvious language that the testator understood the difference between personal arrd corporаte shares of stock. ownership Dealing securities and stocks of corporations was considerable activity his life. He awas man of business pronounced acumen, learned in and its corporate organization germane and effect. language
It has been said facts which occur after a will is executed cannot will, be considered in construing some courts have considered the testator’s failure “although to alter his will, where he knew of the of some happening event after its execution which affect the might disposition property, indicative of his intent.” on Wills Page ed. (Lifetime sec. 656-657. 1941), pp. See also New Practice, Jersey Wills and Clapp, Administration (1950), *25 108, 248-250; sec. West pp. Jersey Trust Co. v. Hayday, 85, 124 N. J. 87 affirmed on the Eq. (Ch. 1938), opinion the former Court of 125 N. J. 90 & A. Chancery Eq. (E. Co., Blauvelt v. The Citizens Trust 545, N. J. Cf. 552-553 that the transaction (1950). Granting involving transfer testator’s of shares of Aniline to was Sterling not a fraudulent device to evade taxes, there is no evi dence fraudulent intent, thе testator must have been aware of law that thereafter he was principle not the owner of the Aniline shares and that did corporation Sterling those not hold shares for his use but rather personal to the use. corporate Inc., 218, Frank v. Frank’s 9 N. J. Cf. The testator aware of the (1952). being of the meaning plain will, words used in his to infer he is reasonable Would have altered in- that instrument had he originally tended a Article 12 of the will disposition thereto. opposed should be construed to the according plain import used express terms therein.
With III I respect to portion majority opinion attained, concur result namely consolidated balance sheet be used. of law are applicable principles in section II of the expressed majority opinion.
For the reasons herein I would reverse the expressed Division, judgment Superior Court, in its Chancery entirety.
Oliphant, J., in this joins dissent. For Heiier, Jacobs Brennan modification—Justices —3. Oliphant Burling—2.
For reversal—Justices MARTIN, GIULIANO, PAUL MICHAEL FRANK PETRUCCI FRATELLO, PLAINTIFFS-APPELLANTS, AND JEAN MAZZIOTTI, JULIA DEFENDANT-RESPONDENT. January
Argued 12, Decided January 1953.