(dissenting).
I cannot agree to the majority opinion and therefore file this dissent.
The majority say that when Mrs. Birdie Frey used the word “surplus” in the concluding paragraph of her will, she referred only to her dishes, crystal ware, silver and bric-a-brac. This cannot be the correct construction of that word “surplus.”
To begin with Mrs. Frey says, “My other belongings, dishes, crystal ware, silver, bric-a-brac to be distributed by Naomi Frey Hickie, Isabella Guffey, Elizabeth Watson * * The words “to be distributed” mean by all definitions that the three named parties shall divide the enumerated items as they see fit and give them to whomsoever the three see fit. That direction is not that the three shall “distribute a part” of the other belongings, dishes, etc., but is a direction that all of the enumerated items are to be divided, given, allotted, or apportioned within the discretion of the three named parties.
Webster defines “distribute” as meaning “to divide among several of many; deal out; apportion to members of a group or over a period of time; allot; * * * dispense; etc., etc.,” Webster’s New Third International Dictionary Unabridged, 1961. See also Great Atlantic & Pacific Tea Co. v. City of Richmond, 183 Va. 931, 33 S.E. 2d 795, 802; .In re Baldwin’s Estate, 69 Cal.App.2d 760, 160 P.2d 124, 127.
If this 'clear direction is carried out, there is left no “surplus” of these items .to be sold and the money added to the charity fund. Therefore, the “surplus” provision as construed by the majority is in conflict with the next immediate direction that a “distribution” of the named items be made. To so construe this clause violates the fundamental rule of construction that it is the duty of the courts to so construe wills or other written instruments that there will be no conflict in the various provisions of the will, and that all provisions will be harmonized. This rule is so fundamental and well recognized that no citation of authorities is needed to support it. Also, the majority construction of “surplus” makes that phrase meaningless provided the three distributors carry out the intention of the testatrix to distribute the named property. The majority argument that the codicil sustains their construction is not logical. The codicil directs that the silver therein described be distributed to others than her relatives either by gift or by sale.
For the sake of argument, granted there would be some of the enumerated items the three distributors could not get anyone to accept; e. g., two or three chipped cups with broken handles, a few crazed plates and saucers, a cracked glass or so, a chair or two with one leg broken and the bottom out, a porcelain figurine with a broken leg or arm. What was undistributed would of necessity have to be worthless, other-' wise, someone would accept it and there would be no surplus to distribute. Granted there would be a few worthless things left over and that no one would have these— and this we must assume from the majority opinion — then the sale of this so-called “surplus” would bring only a mere pittance —perhaps $5.00 or $10.00 at the most optimistic figure. This is all that would be added to the charity fund.
How incongruous with the desire of Mrs. Frey as shown by the rest of her will. Her will shows she was most interested in charity and was not accustomed to giving grudgingly, sparingly or parsimoniously to *389charity. She was magnanimous and generous with her gifts. The evidence shows that for the last ten years of her life, she had given more than 80% of her yearly income to charity. To say she wanted to add only the value of a few broken and worthless pieces to her charity fund is not only illogical, it is entirely contrary to her life and to the terms of her will.
To give this paragraph the construction of the majority violates, many other fundamental legal rules, among which is that such construction makes Mrs. Frey die intestate to a large share of her estate. This in the face of the very opening paragraph of Mrs. Frey’s will, to-wit:
“I, Birdie Hartsough Frey, of the City of Stephenville, County of Erath, State of Texas, being of sound and disposing mind, memory and discretion, do hereby make and publish this, my last will and testament, hereby revoking and making void any provisions made at any time heretofore.”
In this suit, the trial court was requested to answer the following question: “Are the executors directed to sell all the residue of the estate of Birdie Hartsough Frey and deliver the net proceeds, after all expenses, to the Fort Worth National Bank of Fort Worth, Texas, as trustee, said proceeds to become a part of said trust fund?” To this question the trial court answered in the affirmative, with this addition: “ * * * and the court specifically finds and holds that the will and codicil of said testatrix disposed of her entire estate and that she did not die intestate as to any portion thereof.”
We start out with certain fundamental principles of law that must guide us in our construction of the will:
First: Where testatrix leaves a will, this shows an intention she did not intend to die intestate. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163 (1931); Kuehn v. Bremer, 132 S.W.2d 295 (Tex.Civ.App.1939, writ refused); Kos-troun v. Plsek, 15 S.W.2d 220(2-4) (Comm. of App.1929); 44 Tex.Jur. p. 707, Wills, § 148.
Second: Where a person makes a will, the presumption prevails that a testatrix intended to dispose of all her property, if the words used in the will may carry the whole of her property. Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147 (1945); Ellet v. McCord, 41 S.W.2d 110 (Tex.Civ.App.1931, writ refused); Casey v. Kelley, 185 S.W.2d 492 (Tex.Civ.App.1945, writ refused); Crites v. Faulkner, 245 S.W.2d 1013 (Tex.Civ.App.1952); Urban v. Fossati, 266 S.W.2d 397 (Tex.Civ.App.1954, n. r. e.).
Third: Where a provision of a will is fairly open to more than one construction, a construction resulting in intestacy, either in whole or in part, will not be adopted if by any reasonable construction it can be avoided. Kuehn v. Bremer, supra; Ferguson v. Ferguson, supra; Urban v. Fossati, supra; 95 C.J.S. Wills § 615b, p. 834.
Fourth: One who insists upon the partial intestacy must be in a position to show that the will clearly intended that the testator should die intestate. Unless we are pointed to something which clearly expresses or necessarily implies intestacy, the presumption of testacy will prevail. Johnson v. Moore (Tex.Civ.App.1949, writ refused), 223 S.W.2d 325; Boone v. Stone, 142 S.W.2d 936 (Tex.Civ.App.1940, no writ history); Ellet v. McCord, supra; 44 Tex. Jur. 707, Wills § 148; Urban v. Fossati, supra.
It has been said that the presumption that a person making a will intended to dispose of the whole of his estate, is particularly strong when the subject of the gift is the residuary estate. Urban v. Fossati, supra; 17 A.L.R.2d 654-655.
There is no language in the will that indicates Mrs. Frey did not intend to dispose of the whole of her estate.
The reasoning of the court in the case of Urban v. Fossati, 266 S.W.2d 397 (1st col. *390399), Tex.Civ.App.19S4, n. r. e., with regard to the application of the “ejusdem generis” rule is particularly appropriate here:
“To overcome the presumption which places a burden upon the claimants to show clearly or by necessary implication that the testatrix intended partial intestacy, appellants call upon the ejusdem generis rule. The ejusdem generis rule, it is claimed, would restrict the words ‘what is left’ to mean what is left out of the special fund composed of the proceeds from the sale of the home and the insurance policy. But that rule, which is often helpful in construing instruments, is applied hesitantly to residuary clauses in wills, for the reason that it usually results in partial intestacy and runs counter to the very thing for which the rule of presumption exists. Note, 128 A.L.R. 826-833.” (Emphasis added.)
The majority contend that Mrs. Frey forgot she had the property composing the residue of her estate, and therefore she died intestate as to this property. We cannot say she forgot her Government Bonds in the face of the provision contained in Item 9 of the will specifically mentioning the bonds.
The evidence shows that Mrs. Frey was of good mind, had control and management of her estate up to her death, that she was a strong-willed person, and it is unlikely she would have forgotten the house in which she was living and Sitting at the time she made her will.
The construction that the word “surplus” was intended by Mrs. Frey to mean the “rest and residue,” “balance,” “remainder,” “that part of my estate not heretofore disposed of” is a reasonable construction; it will be consistent with the language of the balance of the will; and there is no specific language to the contrary, nor any which necessarily implies “surplus” does not refer to the residue of her estate. Therefore, we hold that it does refer to all of Mrs. Frey’s estate not disposed of by enumeration. Mrs. Frey made specific bequests of $7,000.00 — no mean sum — to each of her four nieces and to her nephew. There are no words in the will showing an intent that they should receive more.
The language of the will shows that Mrs. Frey was most interested in charitable gifts and bequests. The evidence — set out in full in the Court of Civil Appeals’ opinion —demonstrates that using her money for the benefit of others was the controlling passion of Mrs. Frey. As was said in Johnson v. Moore, 223 S.W.2d 325, 329 (Tex.Civ.App.1949, writ ref.):
“We find nothing in this will to indicate that R. M. Castleman was unaware that he owned this remainder except the negative fact that he did not specifically dispose of it. If all of a testator’s property is specifically disposed of in the will there would be no need for a residuary clause.”
Charitable gifts are favored by the law, and the courts will supply means and methods of carrying into effect a charitable gift or bequest. Powers v. First National Bank etc., 137 S.W.2d 839, 841 (Tex.Civ.App.1940), affirmed 138 Tex. 604, 161 S.W.2d 273(25), 1942; Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 503, 168 A.L.R. 1326 (1946).
The dissenting opinion in the Court of Civil Appeals has very clearly and succinctly analyzed the proper construction to be given Mrs. Frey’s will, so I see no need of further extending this opinion.
I would reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.
CALVERT, C. J., and SMITH, J.,' join in the dissent.