Felstiner v. Lyons

Clapp, S. J. A. D. (concurring).

I agree with the majority that the jrrdgment should be affirmed and that our decision should rest upon the doctrine of implications. I agree too that it is to be implied that the testator here intended to attach to Lyons’ bequest a condition, namely, that the payments to him of income were to cease when the estate sold its stock in both Empire Box Corporations (or at least the Illinois corporation). But the majority relies upon Lord Eldon’s rule, and I cannot agree that our decision can be made to stand with that much repeated rule.

*416Before examining that rule, some reference must be made to the doctrine of implications. Usually this doctrine is invoked in order to establish a gift by implication. 5 American Law of Property (1952) 183 to 189 (written by Casner). But there is no reason why it should not also be invoked so as to raise up, by implication, a provision which operates to cut down a gift under the will.

On close inspection it may be said that under this doctrine two conditions must exist before an implication will be made.

In the first place, where there has been an oversight on the testator’s part, not with respect to the matter of expression, but with respect to ideas, the court can be of no aid. We may furnish words, but never intentions. The first of the two conditions then is this: an implication will not be made unless a reading of the will produces on the mind of the court a conviction that the testator at the time of the will actually and in truth had an intention to make a provision not found there. City Bank Farmers Trust Co. v. Hentz, 107 N. J. Eq. 283, 292 (Ch. 1930); Bishop v. McClelland, 44 N. J. Eq. 450, 453 (Ch. 1888); Denise’s Executors v. Denise, 37 N. J. Eq. 163, 170 (Ch. 1883); McCoury’s Ex’rs v. Leek, 14 N. J. Eq. 70, 73 (Ch. 1861); Hollon and Huckley ads White and Wife, 23 N. J. L. 330, 335 (Sup. Ct. 1852); Hanneman v. Richter, 62 N. J. Eq. 365, 369 (Ch. 1901), affirmed 63 N. J. Eq. 803 (E. & A. 1902); Brock v. Hall, 33 Cal. 2d 885, 206 P. 2d 360, 363 (1949); Bond v. Moore, 236 Ill. 576, 86 N. E. 386, 387, 390 (1908); Metcalf v. Framingham Parish, 128 Mass. 370, 374 (1880); Boston Safe-Deposit & Trust Co. v. Coffin, 152 Mass. 95, 25 N. E. 30, 32 (1890); Sanger v. Bourke, 209 Mass. 481, 95 N. E. 894, 895 (1911); Bailey v. Bailey, 236 Mass. 244, 128 N. E. 29, 30 (1920); In re Simanton’s Estate, 118 Vt. 202, 104 A. 2d 918, 920 (1954).

The second condition is this. We must be convinced from the will not only that it contains but a fragment of the testator’s actual intentions, but also that we can see, in the fragment given us, the contour of that which is not stated. 2 Powell, Real Property 710 (1950); cf. Hendrick v. *417Mitchell, 320 Mass. 155, 69 N. E. 2d 466, 469 (1946), citing Bailey v. Bailey, supra; Hope v. Potter, 3 K. & J. 206, 210, 69 Eng. Rep. 1083, 1085 (Ch. 1857). The implication depends upon the apparency of the entire image, to some degree, from an observation of the portion that is visible. Harvard, Trust Co. v. Attorney General, 329 Mass. 79, 106 N.E. 2d 269, 272 (1952).

I come now to the question which concerns me here, namely, what assuredness must we have with respect to these two conditions, before we will make the implication. Lord Eldon held that the implication will not be made unless there is a probability of an intention on the testator’s part so strong that a contrary intention cannot be supposed. Nearly all cases in this state dealing with implications reiterate this rule.

Indeed in the seventh edition (apparently this appears neither in the first nor the latest, the eighth edition) of Jarman’s work, it is said that this assuredness must reach the status of clarity. See the passage quoted in Russell v. Russell, 16 N. J. Super. 589, 593 (App. Div. 1951) from 1 Jarman, Wills 556 (7th ed.). See also City Bank Farmers Trust Co. v. Hentz, 107 N. J. Eq. 283, 292 (Ch. 1931) referring to a conviction “beyond any reasonable or intelligent doubt.” See the paragraph in Den ex dem. Nelson et ux. v. Combs, 18 N. J. L. 27, 38 (Sup. Ct. 1840) using the words “obviously” and “plainly”; Maxwell v. Maxwell, 122 N. J. Eq. 247, 250 (Ch. 1937), quoting this paragraph from the Gombs case. See also the following cases, employing the word “clear” or a similar term: Swetland v. Swetland, 100 N. J. Eq. 196, 207 (Ch. 1926), Id., 102 N. J. Eq. 294 (E. & A. 1928); Camden Trust Co. v. Birch, 131 N. J. Eq. 542, 546 (Ch. 1942); Patterson v. Read, 42 N. J. Eq. 146, 149 (Ch. 1886); Van Houten v. Pennington, 8 N. J. Eq. 745, 749 (E. & A. 1852); In re Devries Estate, 36 N. J. Super. 29 (App. Div. 1955).

I cannot find clarity in this will. I cannot say that the implication which the majority finds to exist here is the only one which could rationally be attributed to Klein or (to use *418Lord Eldon’s formula) that an inconsistent intention “cannot be supposed.” However, before we pass judgment on Klein’s intentions, we need to know the circumstances.

Klein was, as the guardian ad litem says, “justly proud” of this business. His father had founded the Illinois corporation, and (the executors observe) Lyons had been associated with Klein in its management “longer than anyone else”— for many years one of its chief executive officers and at Klein’s death its Executive Vice President, Director and General Manager. The lower court found Lyons to be a valuable executive whose efforts had contributed materially to the success of the business.

We do not know how much 2%% of the income of the net estate before the sale of the stock might have come to. However, taking the sum of $3,376,642 obtained for the stock, said to be %ths of the gross estate, and estimating estate and inheritance taxes and fees, one might question whether Lyons’ bequest would have been so alluring to a top executive of a successful corporation as in any very substantial way “to serve as [an inducement] to secure for the business [his] continued services” and to serve to prevent him from accepting a position with another concern. This the lower court found was the motive for the gift.

It may be noted too that until after the death of the testator’s two adopted children, both infants, the will (a codicil provided for the testator’s wife who was not mentioned in the will) contained no beneficiaries whatsoever other than Lyons, Neidorf and these children. And it should be added that the testator’s trustees (so one respondent says) are both lawyers with no “extensive knowledge of the industrial world in general, or the paperboard box business in particular.”

With those circumstances in view, I come back to the point suggested: could this testator reasonably have entertained any intention other than that stated in the majority opinion? Eor example, could the testator not have thought, when he made his will:

*419“In the first place, I will give Lyons an income bequest, by way of reward for Ms long and invaluable services wMcli have contributed so much to the business and indeed, throngh that business, to my own great satisfaction in life; and, in the second place, I will make that reward conditional on a continuance by Mm of these services to the company during the time the estate holds stock in the eom.pany. Of course my trustees, through a board elected by them, cannot fire him just to eliminate that bequest.”

Can any one say, as Lord Eldon put it, that such an intention “cannot be supposed”? Under the supposition I have made, the condition that Lyons continue in the employ of the company, is to run only so long as the estate owns the stock; while under the majority’s hypothesis, the legacy to Lyons is to run only that long. Each proposition requires a provision to be implied in the will in order to complete its statement.

Notwithstanding the supposition I have advanced, I nevertheless hold with the majority that Klein, when he made his will, probably intended to terminate Lyons’ legacy when the estate sold its stockholdings in the Illinois corporation. His attention, it is true, was turned somewhat on the oblique, and more directly toward that which he was “most desirous” of, namely, to have his “executors and trustees continue these businesses.” Nevertheless I have a conviction, drawn from the will, that in all likelihood his intention in bequeathing the legacy to Lyons was not to make a donation to him (except in an incidental way), but rather to secure for the estate a financial benefit while the estate owned the stock.

I, along with the majority, find a persuasive circumstance here to be the elimination of Wilson as a beneficiary. Further see 5 N. J. Practice 259 at n. 13 (1950). This circumstance — taken with the fact that the testator did not then select Lyons as the sole beneficiary, but brought in Neidorf from the Delaware corporation — definitely indicates that the testator was interested in these men because they could be of service to the estate.

The critical question in this ease, as above stated, is what should be the standard of proof here. I think Lord Eldon’s rule and the rule calling lor clarity aro too strongly stated. *420In my view the criterion should be simply probability; a provision should be implied if we are of the opinion that in all probability the testator actually intended that very provision. Such a standard produces a far more just result, than if we were to refuse to make any implication at all. We extend our efforts, as we ought, toward effectuating the testator’s intentions. But — and this is the heart of the matter — the result reached does not, I think, do any violence to the overriding policies of the Statute of Wills which require the testator’s intentions to be integrated into the paper propounded. Por we derive a probability as to his designs from the very words on that paper.

The English cases seem to be opposed to these views. But it will be found upon an examination of the facts presented by cases in this country that a substantial number of authorities accept the more liberal position advanced here. 2 Powell, Real Property 710-713 (1950), and cumulative supplement. See the New York cases referred to in Russell v. Russell, 16 N. J. Super. 589, 595 (App. Div. 1951).

Por the reasons stated, I concur in the view that the judgment should be affirmed.