Douglass v. Douglass , 70 Cal. App. 2d 279 ( 1945 )

KNIGHT,

J.—This appeal was taken by Eldridge A. Douglass and Leon F. Douglass, Jr., two of the residuary legatees named in the will of their mother, Victoria A. Douglass, deceased, from that portion of a decree of partial distribution distributing two automobiles, a 1941 Cadillac touring sedan and a 1941 Ford station wagon, to Florence Douglass Lang-don, the decedent’s daughter. The controversy concerning the automobiles arose out of the question of the construction of the last sentence of the sixth clause of the will which reads as follows:

“I hereby give and bequeath all of my jewelry, with the exception of my wrist watch, to my beloved daughter, FLORENCE DOUGLASS LANGDON. My wrist watch, I give and bequeath to my beloved sister MART ACKERMAN.

“I hereby give and bequeath all of my flat silverware to my son LEON F. DOUGLASS, JR. All of the rest of my personal effects of every hind and description, including all of the rest of my silver, and all of my linens and china, I give and bequeath to my beloved daughter FLORENCE DOUGLASS LANGDON.” (Italics ours.)

The probate court held that the automobiles were part of the “rest” of the personal effects of the testatrix, within the meaning of the last sentence of the sixth clause, and it is our opinion that the construction so placed thereon by the probate court is not only reasonable and entirely consistent with the other provisions of the will, but that the adoption of any other construction would be contrary to the intention of the testatrix as expressed by her in a subsequent clause of her will.

The appeal is presented on a clerk’s transcript, and the following are among the facts appearing therefrom; The will, a copy of which is set out in the transcript, was executed on April 3, 1940; and the testatrix died on April 29, 1943. At the time she made the will she was married and the mother of six children, four of whom survived her. She was survived also by two grandchildren. The surviving children are adults. There are three sons, Leon, Eldridge A. and Earl S. Douglass, and one daughter, Florence Douglass Langdon. Prior to the execution of the will, the testatrix conveyed certain property in trust, and the will disposes of all other property of which she was the owner, which, so far as the record shows, did not include any real property. The only specific bequests made by her are those embodied in the sixth clause of the will; and by the seventh paragraph she bequeathed and devised the residue of her estate to her four children, share and share alike. The estate was of large value; it was but little indebted and part of it consisted of cash. As to the value of the estate the record shows that prior to the filing of the petition for partial distribution, the executors deposited the sum of $47,500 with the county treasurer to cover the payment of inheritance taxes which had not then been fixed, and that afterwards the court made an order “compromising and fixing” the tax in the sum of $28,386.69. Therefore, taking into consideration the statutory exemptions, and computing the tax at the statutory rates, the value of the estate is shown to be in excess of $400,000. Earl S. and Eldridge A. Douglass were named as executors of the will; and the seventh clause of the will provided, among other things, that if prior to filing the petition for the distribution of the estate the legatees could not agree in writing as to the division of the property devised and bequeathed to them under the seventh clause of the will, the executors, at their discretion, were authorized to divide it as equally as possible “in order to avoid the distribution of undivided interests. ...” An agreement was reached as to the division of all property except the automobiles, which Florence claimed under the last sentence of the sixth clause of the will, and her claim was supported by her brother Earl; whereas Leon and Eldridge took the position that the automobiles constitute part of the residue of the estate and, as such, should be distributed to the four children, share and share alike. Thereafter the executors filed a petition for partial distribution asking that the property thus divided by the four children among themselves be distributed to them in conformity with their agreement; and the executors having failed to agree as to the disposition of the automobiles, the four children joined in signing a written consent, which was filed with the probate court, that the automobiles “be distributed as the court may direct.” However, appellants being dissatisfied with the probate court’s decision have taken this appeal.

With respect to the principal issue it may be stated that the general rule adhered to in most jurisdictions is, that where the testator uses the term “personal effects” in a limited sense, that is, without qualification, the term ordinarily will be construed as signifying an intention to limit the bequest to such personal property as is worn or is carried about or attends the person, but that where the testator has amplified the term by adding qualifying words or phrases thereto, the term will be construed as having been used by him in an unlimited and unrestricted sense, signifying an intention to include therein all personal property intimately associated with the testator; and some cases go even further in holding that such unlimited use of the term may include property other than of the character last mentioned.

In the present case it is manifest that the phrase “All of the rest of my personal effects of every kind and description” was not employed by the testatrix in any restricted sense so as to exclude from its broad scope and operation all personal property except such as is worn or carried on the person, because, as will be noted, immediately following the quoted phrase the testatrix expressly included therein personal property that could not be worn or carried on the person, namely, silverware, linens and china. That being so, it very properly may be held that the testatrix intended to include all personal property of “every kind and description” which had been intimately associated with her person; and, clearly, automobiles used by her for her own convenience and enjoyment fall within such classification as much as the silverware, linens and china.

True, none of the evidence that was introduced before the probate court at the hearing of the petition for partial distribution has been brought before this court. However, the facts disclosed by the record on appeal are amply sufficient to support the inference that she maintained a home and that the automobiles were used by her for her convenience and enjoyment. In this regard the record shows that she was a resident of San Mateo County and a woman of large wealth; and that she was the owner of linens and china, and a large quantity of household silver. The articles of silverware are listed in the petition for partial distribution and it appears therefrom that nearly all of it consists of dining service silver. The two automobiles were of the type ordinarily used for enjoyment and convenience,—a Cadillac touring sedan, appraised at $1,450, and a Ford station wagon, appraised at $865; and there is nothing whatever in the record indicating that the testatrix was engaged in any sort of a business enterprise, or that either automobile was utilized by any other person for business purposes.

In the state of the record above set forth there is no ground, legal or factual, upon which this court would be justified in holding as a matter of law, contrary to the conclusion reached by the probate court, that the automobiles should not be classified as part of the personal effects of the testatrix.

Furthermore, the Legislature of this state has prescribed certain rules governing courts in the interpretation of wills, among which are: That a will is to be construed according to the intention of the testator, and that where his intention cannot have effect to its full extent, it must have effect as far as possible (Prob. Code, § 101) ; that where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto or recital thereof, in another part of the will; that all parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but that where several parts are absolutely irreconcilable, the latter must prevail (Prob. Code, § 103). However, in this connection it is well to state that in construing a will the intention to be sought for is not that which existed in the mind of the testator, but is that which is expressed by him in the language of the will. (Estate of Major, 89 Cal. App. 238 [264 P. 542]; Estate of Ogden, 78 Cal.App. 412 [248 P. 680]; Estate of Bourn, 25 Cal.App.2d 590 [78 P.2d 193].)

Here, the result of sustaining appellants’ contention, that the automobiles should be classified as part of the residue and distributed accordingly, would mean that the two automobiles would be distributed to the four children in undivided shares; and that is precisely what the testatrix did not want to happen, for, as declared by her in the seventh clause of her will, she authorized the executors to divide the property disposed thereunder among the four children “in order to avoid distribution of undivided interests.”

In support of their position, the appellants seek to apply the doctrine of ejusdem generis. The substance of their argument seems to be that by adding the phrase “including all of the rest of my silver, and all of my linens and china” to the phrase immediately preceding, to wit, “All of the rest of my personal effects of every kind and description,” the testatrix signified an intention to restrict the broad and comprehensive preceding phrase to such personal property as falls within the classification of silverware, linens and china. (Italics ours.)

With this argument we are unable to agree. Generally speaking, the word “including” is not construed as a restrictive or exclusionary word, and as here used it carries no restricted meaning. It clearly signifies a meaning just the opposite. It is a word of enlargement and expresses the idea that the thing in question constitutes only a part of a greater whole (In re Frey’s Will, 154 Misc. 421 [277 N.Y.S. 269]), and conveys the same meaning as the words “together with,” “as well as,” or “also.” (In re Link’s Estate, 47 N.Y.S.2d 40.) As said in In re Goetz’s Will, 71 App.Div. 272 [75 N.Y.S. 750] : “ ‘Including’ is not a word of limitation. Rather is it a word of enlargement, and in ordinary signification imimplies that something else has been given beyond the general language which precedes it. Neither is it a word of enumeration of the property which would pass by the express terms of the language of gift.” And in that case it was held that in a bequest of all personal property, including furniture, plate, etc., the word ‘.‘including” did not limit the bequest to the property enumerated after the wording, but covered all of the testator’s personal property. In the present case, if the testatrix had intended to restrict the meaning of the term “personal effects,” she could easily have done so by using some common word or words of restrictive meaning, for example, “consisting of” or' “comprising” instead of the word “including.”

It has been suggested that if the testatrix had intended the automobiles to be included in the term “personal effects” it is inconceivable that she would not have itemized them in her “including” phrase. The difficulty with that suggestion is that the will was executed in April, 1940, whereas both automobiles were 1941 models,—from which it reasonably may be inferred that she did not acquire the automobiles until after the will was executed; and certainly as the owner of an estate of this magnitude she was not called upon to revise her will every time she acquired some additional personal effects, particularly since the unlimited phrase, “All of the rest of my personal effects of every kind and description” was obviously broad enough to include any after acquired personal effects.

As heretofore stated, many eases are to he found, particularly in outside jurisdictions, construing the meaning of the term “personal effects” as used in wills; but an examination of those cases clearly demonstrates that no fixed rule of construction can be laid down to fit all cases because of the difference in the wording of wills, and the duty imposed upon courts to construe the language of each will, as far as possible, in accordance with the testamentary plan or scheme of the testator as expressed by him in his will. It is evident, therefore, that while certain legal principles may be deduced from those previously adjudicated cases, the holdings therein are not decisive in construing wills involved in later cases, unless, of course, the wording of the wills is identical; and identical wills are seldom found. Among the eases dealing with the subject of “personal effects” is the Estate of Sorensen, 46 Cal.App.2d 35 [115 P.2d 241], wherein the question arose as to whether a clause in a will bequeathing “All Jewelry and personal effects” included money received by the testatrix from the sale of her home; and it was held that the clause of the will embodying those words was not a general residuary clause and therefore did not include the money. In so holding the court went on to say that the term “personal effects” as there used in the will referred to clothing and ornaments, or any small articles which usually attend the person. The court, in that case, cited and quoted from a Minnesota case (Barney v. May, 135 Minn. 299 [160 N.W. 790]) wherein it was held that the wording of the will there under consideration did not include money or securities. The portion of the decision quoted is as follows: “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 tbe person’ (Brandon Y. 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, nothing of which she then owned, and which she evidently did not have in mind, would do violence to the language of the will. ’ ’

Another case of interest is the Estate of Lovejoy, 38 Cal. App.2d 69 [100 P.2d 547]. There the testatrix after providing that all her “property” was to be sold and disposed of in a certain manner, proceeded to describe her property, both real and personal, stating where the various items of property and some of the evidence of ownership could be found, and then in a subsequent paragraph she gave her “personal property” to a named person “for her to distribute.” The court went on to say that under well-established rules the will was to be interpreted as a whole, to give effect to the testatrix’s general scheme, and it was held that the words “personal property” as used in the subsequent paragraph of the will meant personal effects, such as clothing, ornaments and other articles which are usually considered as personal effects.

A later ease worthy of mention is the Estate of Duraind, 51 Cal.App.2d 206 [124 P.2d 330]. There the entire will consists of several separate instruments executed at different times, all of which were holographic. In one of them, executed on October 27, 1939, the testatrix declared (p. 208): “I hereby appoint my cousins, Doretta Yoell and Rosalie Gardner, to take charge of my personal property and distribute it according to my instructions.” The next day, October 28, 1939, she executed another instrument containing this bequest: “I give and bequeath my household furniture, bric-a-brac and personal effects to” certain named beneficiaries. The reviewing court held that the probate court was justified in construing the words “personal property” as used in the first instrument as meaning “personal effects” as that term was used in the latter. A case bearing closest analogy to the present one is In re Jones’ Estate, 128 Misc. 244 [218 N.Y.S. 380], wherein a physician bequeathed to his wife ‘ ‘ all household goods, furniture, personal effects”; and it was held that the term “personal effects” as there used included two automobiles of which the testator was the owner, “even though one automobile had been employed by the doctor very largely in making calls upon patients.”

There are also cases holding that the term “household effects” as used in the wills under consideration in those eases included family automobiles, among them being In re Win-burn’s Will, 139 Misc. 5 [247 N.Y.S. 584], wherein that term was held to include a Lincoln limousine and a Ford sport roadster. The court there said that the test as to what are household effects would appear to be whether the disputed articles are used in or by the household, or for the benefit or comfort of the family. In the case of Mathis v. Causey, 172 Ga. 868 [159 S.E. 240, 75 A.L.R 111], the court held that an automobile used by a doctor in his profession was not included in that provision of his will bequeathing all his clothing, personal jewelry, library, furniture, works of art, silverware, household goods, “and other personal effects located at, and used or adapted for use in connection with, my residence on Sixth Street in said City of Vienna and at my office in the Forbes Building in said City of Vienna. ’ ’ But the decision therein is based mainly upon the restrictive words above quoted, the court saying: “The personal effects given in this legacy are those located at, or used or adapted for use in connection with, testator’s residence, and his office. These words restrict and limit the meaning of the words ‘other personal effects,’ as used in this bequest.”

The foregoing cases have been referred to merely as illustrative of the statement hereinabove made that because of the difference in the wording of wills and the duty of courts to construe the language used in each will as far as possible in accordance with the testamentary plan or scheme appearing from the will, no fixed rule of construction can be established to govern in all cases.

In the present case, being guided by the rules of construction prescribed by the Probate Code, and construing the will herein as a whole, it is our conclusion that the last sentence of the sixth clause of the will included the automobiles. Accordingly, that portion of the decree from which the appeal was taken is affirmed.

Ward, J., concurred.