Douglass v. Douglass

PETERS, P. J.

I dissent.

As pointed out in the majority opinion, we are here called upon to interpret, without the benefit of any extrinsic evidence, a clause of a will. The Supreme Court in Estate of *288Platt, 21 Cal.2d 343 [131 P.2d 825], has adopted the rule that when a question of construction is presented to an appellate court, and the document alone is before the court without extrinsic evidence, it is the duty of the appellate court to exercise its independent judgment as to which of several constructions is the most reasonable, without reference to the construction given by the tidal court. (See, also, Moore v. Wood, 26 Cal.2d 621, at p. 630 [160 P.2d 772].) The majority opinion does not disclose whether, it has applied this rule or whether it has followed the rule of those cases impliedly overruled by the Estate of Platt (see concurring opinion of Carter, J.; 21 Cal.2d 352, 353) which held that the construction of a document by the trial court will be upheld if reasonable, even though there is a more reasonable contrary construction. In my opinion, if the rule of the Estate of Platt be applied, there can be no doubt but that the construction given the clause in question by the trial court, even if it be conceded that such construction was a possible one, is not as reasonable as the construction that the automobiles in question are not included within the phrase “personal effects. ’ ’ For that reason I believe the decree of partial distribution should be reversed.

The problem presented can be stated as follows: By the phrase “All of the rest of my personal effects of every kind and description, including all of the rest of my silver, and all of my linens and china” did the testatrix intend to include the two automobiles owned by her f The problem is really divided into two parts: First, what is the ordinary and usual meaning of the phrase “personal effects,” and secondly, is there anything in the clause in question or in any other portion of the will that indicates that the phrase was used in other than its usual and ordinary meaning ?

It must be kept in mind that the adjective “personal” has several meanings. When the term is used to modify the word “property” it is usually used in opposition to the adjective “real,” and includes all property that is not real property. But when used in a will to modify the word “effects” it is obviously intended to be used in the sense of intimately connected with the person of the testator. While there is some confusion in the eases, largely caused by a failure to recognize this difference in the meaning of the word “personal,” the overwhelming weight of authority is that the phrase “personal effects” appearing in a will, in the absence of an *289indication of a different intent, naturally and ordinarily includes only such tangible personal property as is worn or carried about the person, or is intimately associated with the person. (Mathis v. Causey, 172 G-a. 868 [159 S.E. 240, 75 A.L.R. 111]; Child v. Orton, 119 N.J.Eq. 438 [183 A. 709]; In re May’s Estate, 135 Minn. 299 [160 N.W. 790]; In re Lippincott’s Estate, 173 Pa. 368 [34 A. 58] ; Brandon v. Yeakle, 66 Ark. 377 [50 S.W. 1004] ; First Methodist Episcopal Church South v. Anderson (Tex.Civ.App.), 110 S.W. 2d 1177; In re Benson’s Estate, 110 Mont. 25 [98 P.2d 868]; Carr v. Railton, 66 R.I. 225 [18 A.2d 646, 20 A.2d 374].)

We are not without express authority on this point in this state. In Estate of Sorensen, 46 Cal.App.2d 35 [115 P.2d 241], the court was interpreting a clause in a will providing that all jewelry and personal effects were bequeathed to a designated legatee, and the question was whether that clause included some money left by the deceased. In holding that it did not, the court stated (p. 38): “. . . . it is obvious that this clause refers to clothing and ornaments or any other small articles which usually attend the person, and is not a general residuary clause. (Estate of Love joy, 38 Cal.App.2d 69 [100 P.2d 547].)

“In Barney v. May, 135 Minn. 299 [160 N.W. 790], the court said:

“ ‘The word “personal,” used with “effects,” much restricts its meaning. In common understanding the expression “personal effects,” without qualifying words, includes only such tangible property as attends the person, or, as variously stated, “such tangible property as is worn or carried about the person.” (Brandon v. Yeakle, 66 Ark. 377 [50 S.W. 1004]; Lippincott’s Estate, 173 Pa. 368 [34 A. 58]), or “goods and items of property having a more or less intimate relation to the person” .... But to hold that the term “personal effects,” as used here, includes a large residue of money and securities . . . would do violence to the language of the will.’ ”

In Estate of Lovejoy, 38 Cal.App.2d 69 [100 P.2d 547], the court held that the words “personal property” as used in the will under construction meant “personal effects,” and that those words (p. 74) meant: “clothing, ornaments and other small articles which are usually considered as personal effects.”

*290The majority opinion suggests that automobiles may fall within this limited category. If an automobile is a “personal effect” so would a yacht, or a private railroad ear, or a riding stable, or a carriage, be “personal effects.” The phrase cannot thus be extended. If used without words of explanation the phrase must be held limited to tangible personal property worn or carried about the person, or intimately connected with the person. Automobiles do not fall within that category.

The next question is whether there is anything in the paragraph or in the entire will that indicates that the phrase “personal effects” was here used in other than its ordinary and usual meaning. Certainly the clause “of every kind and description” adds nothing to the phrase “all of . . . my personal effects.” If the phrase “personal effects” only includes those things intimately connected with the person, then the phrase “personal effects of every kind and description” is likewise so limited—it is still limited to “every kind and description” of “personal effects.”

When the balance of Paragraph Sixth is read the intent with which the testatrix used the phrase is made crystal clear. She was obviously fearful that the phrase “personal effects” might be given too limited a meaning. To obviate this difficulty what did she do ? In the first sentence of the paragraph she gave her wrist watch to a named sister and the balance of her jewelry to her daughter. In the very next sentence she bequeathed her flat silverware to a named son. Then she bequeathed “all of the rest of my personal effects of every kind and description, including all of the rest of my silver, and all of my linens and china” (italics added) to her daughter. Words could hardly be used that would more clearly show that by this clause the testatrix had in mind her jewelry, her silverware, her linens, her china, and other articles of a personal and intimate nature. She was obviously fearful that the phrase “rest of my personal effects of every kind and description” would not include silverware, linens and china, so she added the phrase which specifically included those articles. There is grave doubt whether such articles of household use would be included within “personal effects” in the absence of lánguage showing such an intent. She so carefully defined what she had in mind by “personal effects” that, had she intended impersonal articles such as automobiles to be included, she would have so specified.

*291The majority opinion points out that the will was drafted before these specific automobiles were acquired. Just what help that fact is in ascertaining the testatrix’ intent is not clear. Certainly, it cannot be implied that by mentioning silverware, linens and china, she intended to include automobiles not yet purchased. By Paragraph Sixth she either carefully excluded all personal property except of the types mentioned (and this would exclude automobiles) or she entirely forgot about the fact that she then had, or might later acquire, automobiles. In either event, automobiles are not included.

There are other words in Paragraph Sixth that throw some light on the subject. After disposing of her jewelry and some of her silverware the testatrix stated that “all of the rest” of her “personal effects” should go to her daughter. By the use of the word “rest” the testatrix indicated with unusual clarity what she had in mind, namely, the other articles similar to the ones just mentioned. The rule of construction to be applied in such cases is clear. It is not unusual in construing a statute or a contract or a will, to find, as here, general and specific words associated together. In such event it is the usual rule of construction that the general words take color from the specific ones and the general words will be restricted, in the absence of a contrary expressed intent, to a sense analogous to the specific words. This is the doctrine of ejusdem generis. It means simply that when the Legislature, the contracting parties, or a testator use general words in connection with an enumeration of particular things, in the absence of a contrary expressed intent, experience has shown that in most cases the general words were used to discribe things of the same general nature or class as those specifically enumerated. The reason for this common sense rule of construction is obvious. If the general words were intended to prevail in their broadest sense the special words need not, and would not, have been employed at all. (See, generally, 23 Cal.Jur. § 130, p. 755.) The doctrine is, of course, applicable to the construction of wills. (In re May’s Estate, 135 Minn. 299 [160 N.W. 790]; Brandon v. Yeakle, 66 Ark. 377 [50 S.W. 1004]; In re Lippincott’s Estate, 173 Pa. 368 [34 A. 58]; In re Campbell’s Estate, 171 Misc. 750 [13 N.Y.S.2d 773]; Carr v. Railton, 66 R.I. 225 [18 A.2d 646].) In Richmond v. Rhode Island Hospital Trust Co., 46 R.I. 113 [125 A. 228], the court held that general words somewhat similar to those here involved *292could not be interpreted to include an automobile because the specific enumeration in the clause in question, which was a much broader specification than is here involved, limited the general words, under the rule of ejusdem generis.

This rule of construction should be followed in this case unless there is something expressed in the will itself to show that it is not applicable. In this case but one construction of the clause is reasonable. When the testatrix stated “all of the rest of my personal effects of every kind and description, ’ ’ she obviously was referring to things similar to jewelry and silverware—articles she had just mentioned. The word “rest” as there used is synonymous with “other,” and it is the same as if she had said “all of my other personal effects.” Had she used the word “other,” there can be no doubt but that the doctrine of ejusdem generis would be applicable. (In re Johnson, 167 Cal. 142 [138 P. 740]; People v. Strickler, 25 Cal.App. 60 [142 P. 1121]; see cases collected, 50 Am.Jur. at p. 250, fn. 3; 59 C.J. at p. 982, fns. 64 and 65.)

There is another phrase in the paragraph in question that is of some assistance. After disposing of the “rest” of her “personal effects” the clause continues “including all of the rest of my silver, and all of my linens and china.” I have no doubt that by this phrase the testatrix expanded the ordinary meaning of the phrase “personal effects.” Normally, as already pointed out, it is very doubtful if silver, linens and china would be included within the meaning of the words “personal effects.” The majority opinion is undoubtedly correct in holding that the word “including” is usually a word of “enlargement,” and implies that something “has been given beyond the general language which precedes it.” But the real question is not whether the word “including” is a word of “enlargement” or a word of limitation, but rather, assuming it is a term of enlargement, how far has the class been enlarged or opened up ? On this point the testatrix left no doubt. She enlarged the meaning of “personal effects” to include silver, linens and china—articles, which, while not as intimate as the usual things included within the meaning of “personal effects,” are still personal to a woman and to a homemaker. By no reasonable interpretation can it be said that the class was opened up to include such articles as automobiles.

The majority seek some support for their construction from a phrase appearing in Paragraph Seventh of the will. This is *293the residuary paragraph of the will. After bequeathing the residuum to her four living children, share and share alike, the testatrix states that in the event the legatees entitled to share her estate “as provided in this paragraph number ‘Seventh’ ” cannot agree to the division of the property, then the executors are authorized to partition the property “in order to avoid the distribution of undivided interests.” A reading of the paragraph demonstrates to a certainty that the last-quoted phrase applies by specific limitation only to Paragraph Seventh, and has no application at all to Paragraph Sixth. To so construe it is a strained, unnatural and, in my opinion, an improper construction.

It is my view that the decree of partial distribution should be reversed.