Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D. Clapp, S.j.a.d. (concurring).
[36 NJSuper Page 408] Actions instituted to elicit the judicial construction of a last will and testament commonly project the two basic questions. Will the court execute the clear intent of the testator which is not fully or definitely expressed in the will, or will it, by a strict technical adherence to the form of words and their literal meaning, or the absence thereof, suffer the discernible intention of the testator to be defeated? Van Houten v. Pennington , 8 N.J. Eq. 745, 749 (E. & A. 1852); Barrett v. Barrett , 134 N.J. Eq. 138, 148 (Ch. 1943); Scarborough v. Scarborough , 134 N.J. Eq. 201
(Ch. 1943); Guaranty Trust Co. v. Catholic Charities of Archdiocese of New York , 141 N.J. Eq. 170 (Ch. 1948).
To effectuate the deducible intent, is the court itself required to inject into the will some term or provision which the testator neglected to include although in reasonable probability he would have inserted it had he contemplated the occurrence of the contingency? Stout v. Cook , 79 N.J. Eq. 573, 579 (E. & A. 1911); Leyendecker v. Leyendecker , 142 N.J. Eq. 449, 454 (E. & A. 1948); Burlington County Trust Co. v. Di Castelcicala , 2 N.J. 214 (1949).
Those questions have high ascendancy in the field of our considerations in the present case for here the will seems to radiate the true intention of the testator in the particular with which we are concerned, but it is axiomatic that judicial construction cannot be formulated upon what a testator meant to say in his testament, but only upon what he meant by what he did say. Stryker v. Sands , 4 N.J. 182, 189 (1950).
One Stanley J. Klein, a resident of Englewood, New Jersey, died on June 14, 1953. His wife, Anne Klein, and his two children, Stanley J. Klein, Jr., and Linda Anne Klein, survived. He had executed his last will and testament on November 30, 1948, and a codicil thereto on December 8, 1949, both of which were duly probated, and the plaintiffs qualified as co-executors and co-trustees. The present action was instituted by the latter in their representative capacities in the Chancery Division in quest of a judgment construing certain provisions of the will relating to the distribution of portions of income derived from the residuary testamentary trust.
The pertinent terms and provisions of the will and codicil are here reproduced:
"Second: I give, devise and bequeath all the rest, residue and remainder of my estate, whether real or personal and wherever situate the same may be (hereinafter sometimes called my 'residuary estate'), to my trustees hereinafter named, In Trust, Nevertheless, for the following uses and purposes:
(A) To hold, invest and reinvest the same and to collect the income therefrom during the lives of my son, Stanley J. Klein, Jr.
and my daughter, Linda Anne Klein, and to pay out the net income therefrom or to apply the net income therefrom, as the case may be, as follows:
(a) Two and one-half percent (2 1/2%) of said net income shall be paid to Samuel L. Neidorf as long as he is employed by Empire Box Corporation (a Delaware corporation) or by any of its subsidiaries; should his said employment cease, then this portion of the net income of said trust shall be disposed of as provided for in subparagraph (c) of paragraph Second of this my Will.
(b) Two and one-half percent (2 1/2%) of said net income shall be paid to Joseph J. Lyons, Jr., as long as he is employed by Empire Box Corporation (an Illinois corporation) or by any of its subsidiaries; should his said employment cease, then this portion of the net income of said trust shall be disposed of as provided for in subparagraph (c) of paragraph Second of this my Will.
(c) The balance of said net income shall be paid, in equal shares, to, or applied, in equal shares, to the support, education and maintenance of, my said children, Stanley J. Klein, Jr. and Linda Anne Klein, or the whole of the balance of said net income shall be paid to or applied to the benefit of the survivor of them.
Fourth: It is my wish that my executors and trustees shall continue to retain, in their absolute discretion and for such length of time as they may determine, any stock which I may own in Empire Box Corporation (a Delaware corporation) and any of its subsidiaries and Empire Box Corporation (an Illinois corporation) and any of its subsidiaries. I have spent a good part of my business life in developing the businesses of these corporations, and I am most desirous that my executors and trustees continue these businesses. I fully realize that the operation of said business may, in certain years, be unprofitable or may result in losses, and that the losses may be substantial. Nevertheless, I direct that my executors or trustees shall continue to hold the said stock in the trust created hereunder for such length of time as they may decide in their absolute and sole discretion. I further direct that neither my executors nor trustees shall be held liable in any way whatsoever or be surcharged should the retention of said stock as an investment result in a loss, substantial or otherwise, to the said trust."
Subdivision (c) was altered by the codicil to read in part:
"(c) Out of the balance of the said net income one-third (1/3) thereof shall be paid to my wife, Anne Klein, and the remaining two-thirds (2/3) of the said balance of the said net income, and after the death of my said wife the entire balance of the said net income, shall be paid in equal shares to, or applied in equal shares to the support, education and maintenance of my said children, Stanley J. Klein, Jr. and Linda Anne Klein. * * *"
Stated succinctly, the inquiry originally addressed to the court sought an instruction concerning the right of Neidorf and Lyons to continue to receive the income bequeathed to them respectively in subparagraphs (a) and (b) of the "Second" clause of the testator's will should the plaintiffs in their representative capacity sell all of the capital stock of the decedent in the designated Delaware and Illinois corporations and their subsidiaries.
Subsequent to the institution of this action and before the rendition of the decision in the Chancery Division, the plaintiffs with the approval of the court sold the stockholdings of the testator in the Empire Box Corporations for $4,400,000. The present appeal now implicates only the bequest to Lyons, who retains his employment with the Empire Box Corporation, the corporation of Illinois, under the new ownership, and asserts that notwithstanding the disposal of all the interests of the estate in the corporation ...