Present: Carrico, C.J., Compton, Lacy, Hassell, Koontz, and
Kinser, JJ., and Poff, Senior Justice
MAZZIE TURNER, ET AL.
OPINION BY
v. Record No. 982588 SENIOR JUSTICE RICHARD H. POFF
September 17, 1999
MARK N. REED, EXECUTOR, ETC., ET AL.
FROM THE CIRCUIT COURT OF PAGE COUNTY
Porter R. Graves, Jr., Judge
The principal issue in this appeal is whether the
chancellor erred in construing the term "personal property", as
used in a testamentary bequest, to include only tangible
personal property.
In the second paragraph of her will, Kathleen R. Waye made
monetary bequests to six beneficiaries. The portion of the
second paragraph relevant to the ruling challenged in this
appeal provides as follows:
"I give, devise and bequeath unto my friends, MAZZIE
TURNER and LOIS SOMERS [now Lois Jarriel], my residence
. . . and all of the furniture and personal property
located in and about said residence, along with any
automobile which I may own at the time of my death, to be
held by them as joint tenants with the right of
survivorship."
In the third paragraph, the testatrix divided the residue
of her estate equally among four beneficiaries. * Mark N. Reed,
the drafter of the will, qualified as executor of the estate and
*
The residuary beneficiaries were identified in the third
paragraph of the will as the Luray United Methodist Church, the
posted bond in the sum of $1,150,000.00. An inventory of
personal property "located at Mrs. Waye's residence . . . at
the time of her death" included stock certificates and travelers
checks valued by the executor as having "a fair market value of
approximately $134,543.99."
In his bill of complaint seeking construction of the will,
the executor contended that "under a proper interpretation . . .
those stock certificates and [t]ravelers checks are part of the
residuary portion of Mrs. Waye's Estate, and as such would pass
to the residuary beneficiaries and not the [r]espondents, Mazzie
Turner and Lois Jarriel." Citing this Court's decision in
Bowles v. Kinsey, 246 Va. 298, 435 S.E.2d 129 (1993), Turner and
Jarriel contended that "the term 'personal property' is a term
of art and embraces both intangible and tangible personalty."
The chancellor agreed with the executor's argument that
"the facts in Bowles v. Kinsey, are distinguishable from those
of this case" and entered a final decree construing the disputed
language as limited to a bequest of tangible personal property.
We agree with the chancellor's conclusions.
We consider this issue in the context of certain well-
settled principles. As we said in Bowles, "[t]he paramount rule
of will construction is that the intention of the testator
Luray Christian Church, Lynchburg College and the Odd Fellows
and Rebeccas Home of Virginia.
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controls, unless such intent is contrary to an established
principle of law." 246 Va. at 300, 435 S.E.2d at 130. "The
primary consideration and rule of construction is to determine
the intention of the testator from the language which he has
used." Penick v. Walker, 125 Va. 274, 278, 99 S.E. 559, 560
(1919); accord Coffman v. Coffman, 131 Va. 456, 463, 109 S.E.
454, 457 (1921). "This intention, gathered from the whole will,
must predominate over all technical words and expressions."
James v. Peoples National Bank, 178 Va. 398, 404, 17 S.E.2d 387,
389 (1941). "Technical rules of construction are not to be
invoked to defeat the intention of the maker of the instrument,
when his or her intention clearly appears by giving to the words
used their natural and ordinary import." Horne v. Horne, 181
Va. 685, 691, 26 S.E.2d 80, 83-84 (1943); accord Walton v.
Melton, 184 Va. 111, 115-16, 34 S.E.2d 129, 130 (1945).
In Bowles, this Court said that "[s]ince the term 'personal
property' is a technical term, the testatrix generally is
presumed to have used that term in its technical sense."
Bowles, 246 Va. at 301, 435 S.E.2d at 130 (emphasis added).
Under the facts of that case, in which the testatrix disposed of
"all my personal property", we concluded that the term "personal
property" included both tangible and intangible forms of
property. Id.
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We used the word "generally" in Bowles to qualify the rule
that use of a technical term is an absolute definition of
testamentary intent. In Bowles, the testatrix used the word
"all" in disposing of her personal property. The word "all"
means: "The whole number or sum [when] used collectively with a
plural noun or pronoun expressing an aggregate." Blacks Law
Dictionary 74 (6th ed. 1990). Thus, the general rule stated in
Bowles was applicable in that case because the testatrix defined
her bequest in language consonant with the definition of the
technical term and because she used no language elsewhere in her
will indicating a different testamentary intent.
Reaffirming the general rule stated in Bowles, we hold that
an exception to that rule applies here. In Bowles, the word
"all" defined the entire corpus of the testatrix's personal
property, unqualified by kind or situs. Here, that adjective
defines only a select portion of the testatrix's personal
property, that is, "furniture and personal property" and only
such property as was "located in and about [her] residence".
Thus, we share the chancellor's view that the testatrix's
intention in the disputed portion of paragraph 2 was to limit
her bequest to tangible personal property located in the
residence.
In a second assignment of error, Turner and Jarriel say
that the chancellor erred by considering the doctrine of ejusdem
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generis in the course of his construction of the language of the
will. We disagree.
As we define that doctrine, in the construction of legal
instruments, when the listing of an item with a specific meaning
is followed by a word of general import, the general word will
not be construed to include things in its widest scope but only
those things of the same import as that of the specific item
listed. See Cape Henry Towers, Inc v. National Gypsum Co., 229
Va. 596, 603, 331 S.E.2d 476, 481 (1985); Martin v.
Commonwealth, 224 Va. 298, 301, 295 S.E.2d 890, 892 (1982); East
Coast Freight Lines v. City of Richmond, 194 Va. 517, 525, 74
S.E.2d 283, 288 (1953); Rockingham Bureau v. Harrisonburg, 171
Va. 339, 344, 198 S.E. 908, 911 (1938).
Here, the specific items listed are "furniture" and
"automobile"; the general term listed is "personal property".
The widest scope of that term includes intangible as well as
tangible personal property. But under the doctrine in issue,
the general term applies only to things of the same import as
that of the specific items listed, i.e., tangible personal
property.
Finding no merit in the assignments of error, we will
affirm the final decree.
Affirmed.
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