[17 NJSuper Page 525] In this action, the court is asked to construe the will of Bernard R. Armour, who died December 1, 1949, a resident of Bergen County. The plaintiff executors seek a judgment that under a proper construction of the 12th paragraph of decedent's will, George L. Armour, the decedent's brother, who is also one of the executors, has the right to purchase 99,339 shares of stock of American Aniline Products, Inc. Also sought is a determination that the price to be paid for the stock is its book value as of December 31, 1949, the year of testator's death, which book value shall not include any valuation of patents, goodwill,
bank deposits, accounts receivable and investments in securities.
All parties in interest were served with copies of the complaint and the order to show cause issued thereon. The only response was from the guardians ad litem of the infant children of the testator, who are his residuary legatees. In their answer the guardians assert that there was an ademption of the legacy or option given to George L. Armour, in so far as it applied to 99,000 shares of American Aniline stock. And they also contend that in a determination of the book value of the stock, consideration must be given to the value of bank deposits, accounts receivable and securities. In view of a possible conflict of interest, George L. Armour applied for and was granted leave to appear individually and be represented by counsel of his own choosing.
The paragraph of the will about which the dispute centers is as follows:
"Twelfth: I hereby give my brother, George L. Armour, the privilege and right at any time within one (1) year from the date of my death to purchase all the shares of stock of American Aniline Products, Inc. which I may own at the time of my death, at a purchase price equal to the book value of said shares of stock, such book value to be determined by an inventory taken and balance sheet struck at the end of the fiscal year of said corporation during which my death shall occur, and such book value to be determined without including any valuation whatsoever for patents, goodwill or other intangible assets of the said corporation. I direct my executors and trustees to sell the said shares of stock to my said brother upon such terms as my executors and trustees may, in their sole discretion determine in the event that he should, within the period of one (1) year after my death, elect to purchase the same.
Subject to the foregoing provisions of this Article TWELFTH, it is my wish that my executors and trustees should continue to hold intact, so long as in their discretion it shall seem practicable or advantageous, my interests in the following companies: Heyden Chemical Corporation, American Aniline Products, Inc., Charles Hellmuth, Inc. and the Siegle Color Division of Ansbacher-Siegle Corporation, or any successor corporations, but in expressing this wish I do not desire to hamper or restrict my executors and trustees, in the exercise of their absolute discretion, in selling or otherwise disposing of any such interests at such time and upon such terms as they may deem proper."
In approaching the problem of will construction it is necessary for us to keep in mind that the court's duty is to seek to ascertain the testator's intention and to carry it out if that intention be legal. The testator's intention, when ascertained, must prevail and should control all presumptions and assumptions. Donath v. Shaw , 132 N.J. Eq. 545 (Ch. 1942); Bottomley v. Bottomley , 134 N.J. Eq. 279 (Ch. 1944). That intention must be found in the language used in the will considered in the light of the attendant circumstances. While extrinsic evidence is not admissible to vary, enlarge or contradict the terms of the will, it is admissible to place the construing court so far as possible, in the situation of the testator at the time when he executed the will. "For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will." Noice v. Schnell , 101 N.J. Eq. 252 (E. & A. 1927); In re Fox , 4 N.J. 587 (1950).
Bernard R. Armour was a man of great wealth. His interests were many and varied. Prominent among those interests was American Aniline Products, Inc., a highly profitable enterprise which Armour controlled. At the time of the execution of the will on February 24, 1944, that corporation had an authorized capital of 100,000 shares, of which 99,719 had been issued. Of these shares 281 were in the company treasury, 318 were registered in the name of George L. Armour and 99,339 were registered in the name of Bernard R. Armour.
There can be no doubt that had Bernard Armour died before 1948, George L. Armour would have had the right
to purchase the 99,339 shares of American Aniline stock standing in Bernard Armour's name. Such is the clearly expressed meaning of paragraph 12 of the will. It remains to be seen whether, as a result of subsequent ...