Intention of testator

Stewart v. Selder, 473 S.W.2d 3o “The court is concerned only with the intention of the testator as expressed in the

document.” Cravens v. Chick (Civ. App. 1975) 524 S.W.2d 425

o In the construction of a will, testamentary intent is the first concern of a court.

“Home and its contents”

Statute

Estates Code Chapter 255 Construction and Interpretation of Willso “Contents” means tangible personal property, other than titled personal property,

found inside of or on a specifically devised item. The term includes clothing, pictures, furniture, coin collections, and other items of tangible personal property that: (A) do not require a formal transfer of title; and (B) are located in another item of tangible personal property such as a cedar chest or other furniture.

Texas courts

Cassiano v. Ursuline Acedemy, 64 Tex. 673o “House has been construed to mean both the structure and the land on which it

stands.” McKinley v. McKinley, 483 S.W.2d 310

o Definition of home: “the term ‘home’ as used in the will of deceased does not include contents of the house “furniture, appliances and yard tools.’”

o Definition of home: “a dwelling house” or “the habitual abode of one’s family” or “the place of constant or permanent residence.”

Taliaferro v. Mayer, 681 S.W.2d 882o Definition of home principle—Testatrix devised her home and contents. An automobile

parked on the street was not bequested under home and contents. Davis v. Shanks, 911 S.W.2d 390

o Intent exception principle—Intangible personal property such as securities did not pass under a bequest of contents of a house unless the will expressed a contrary intent. Because the express language of decedent’s will was unambiguous, decedent’s will did not expressly include securities as part of the contents.

Paul v Merrill Lynch Trust Co., 183 S.W.3d 805o Intention principle—The probate court concluded that Ed’s gun collection was being

temporarily stored at Ed’s business and that it was Ed’s intention to keep it in the home. Thus it came within the “contents of the home” and was not property of the estate; Appellants were to take nothing on their damage claim relating to the gun collection.

o Appeals court affirmed judgment of the lower court.

Out of state

Cowen v. Cowen, 90 N.H. 198o The ‘house’ devised to the testator’s widow for life is clearly to be read as inclusive of

the land and buildings comprising the homestead, and those articles were therefore a part of ‘the contents of all kinds’ bequeathed with the devise of the life estate.

o The automobile and tools were kept in a stable which was a building on the testator’s homestead.

Old Colony Trust Co. v. Hale, 302 Mass. 68o Testatrix bequeathed her house and the contents of the house not otherwise

bequeathed. o The Supreme Court of Massachusetts found there was nothing in the will that could be

said to show an intent on the part of the testatrix to give respondent the savings bank books or the insurance policies.

o The jewelry did pass to the respondent because the jewelry was not otherwise disposed of by the will and were contents of the house

Lewis v. Atkins, 122 Ind. App. 618o Testatrix bequeathed her home and residence to the Mutual Service Foundation with

residuary clause to executors of the will.o The court concluded “Coleman made a general devise of the entire lot upon which her

home and the garage in controversy stand, to the Mutual Service Foundation and, in the event it rejected the gift, then to the beneficiaries named in the residuary clause of her will.”

o Definition of home: The devise of a ‘home’ includes not only the testator’s dwelling house but the entire parcel of real estate constituting the residence estate.

Cuppett v. Neilly, 143 W.Va. 845o Testatrix bequeathed her home with all furniture and contents including linens and

silverware to Linda Lee King.o Within her home, there were certain articles of jewelry and an automobile in a garage

that had been constructed in and made a part of the home. o Linda Lee King is entitled to the jewelry and the automobile which were covered by the

provision which gave her the contents of the home of the testatrix.o The Court held the ejusdem generis rule of construction did not apply or limit the

general word ‘contents’ which were followed by specific words ‘linens and silverware.’ The rule is that when general words follow an enumeration of persons or things

by words of a particular and specific meaning the general words are not to be construed in their widest extent.

In this case, the general word ‘contents’ is followed, not preceded by the particular and specific words ‘linens and silverware’ … there is no basis for the application of the rule in this case.

Lansburgh v. Lansburgh, 37 F.2d 997o Testatrix devised her home and all its contents to her former housekeeper.o Among items found in the home were jewelry and household furniture. The court held

that in absence of reference to any particular or general class of property contained in the house, the rule of ejusdem generis did not apply. Thus, all the contents of the home were to be included within the bequest.

Chase Nat’l Bank v. Deichmiller, 107 N.J. Eq. 379o Testator bequeathed “home” for use of his wife (and daughters). o The residence included in addition to the dwelling house, a barn, garage, and chicken

houses, and also items not in the dwelling house itself, including two automobiles, two cows, some chickens, and certain agricultural machines and implements.

o Definition: ‘Home’ means not merely the dwelling house, but the entire residence estate.

In re Marshall’s Will, 22 Misc. 2d 503o Testator bequeathed his ‘house and lot’ and the ‘contents’ of his ‘home’ to a niece.

Testator’s automobile was housed in a garage on the lot, and a sum of money was found in a safe in his house.

o Court held the car was bequeathed to the niece under the will because ‘home’ included garage found on premises, and by extension, ‘contents of the home’ included car in the garage.

See distinction: ‘home’ vs. ‘house’ o ‘Contents of a home’ did not include money that happened to be there because there

was no evidence the testator normally kept money in his safe in the general amount of currency found there at his death. Money passes under residuary clause of the will.

In re Hockenbery, 190 Misc. 6o Decedent bequeathed “home” to Frank House. o He owned and occupied a residence property upon which there was a dwelling and a

building originally a barn, but used as a garage. o Home definition: One’s home is something more than the house in which he lives—it

includes surrounding grounds, buildings such as garages, storehouses, and others used in connection with the occupancy of the property and many other things according to the wealth and fancy of the owner.

o This clause may be construed as devising to the devisee the decedent’s property at Westtown.

o In addition to the home property, decedent owned a vacant lot. o Surrogate is of the opinion that decedent intended to be rather comprehensive in his

bequests and finds … decedent intended … to devise to the legatee the vacant lot together with the so-called home property.

“Personal effects”

Texas Courts

First Methodist Episcopal Church South v. Anderson, 110 S.W.2d 1177o Personal effects defined: “ordinarily, the term ‘personal effects’ refers to articles

bearing intimate relation or association to the person of the testator. Includes prized articles of intimate relation, such as jewelry, luggage, clothing,

etc. Kaufhold v. McIver, 682 S.W.2d 660

o Intent principleo McIver devised personal effects and personal property to named persons in percentages

stated in the will.o Appellant argues “personal effects” includes real property.o Trial court interpreted ‘personal effects’ to exclude real property. o Appeals court held it does not appear reasonable to define ‘personal effects’ to include

real property. The standard is the intention of the testator and based upon the extent of testatrix’s knowledge of real estate transactions, she knew the difference between various terms such as real property, personal property, and personal effects.

Teaff v. Ritchey, 622 S.W.2d 589o Personal effects defined: “the words ‘personal effects’ are defined generally as relating

to ‘articles associated with person, as property having more or less intimate relation to person of possessor.”

o Insurance policies “are not personal articles having an intimate relation or association with him [Darnce].

o “personal effects” in divorce settlements and judgments “refer to items of personal property used or usable by the person to whom they are related, such as clothes, toilet articles, eye glasses and denture.

o Tangible principle: “We do not believe the words refer to significant items of intangible property such as the insurance policies in this case.

Out of State

Beisgen Estate, 387 Pa. 425o Testatrix devised “all my personal effects, including clothing and household goods” to

her daughter. o General Rule: if testator’s intent is not unlawful, it must prevail.o Personal effects defined: “personal effects” prima facie mean “articles associated with

the person” and do not include or mean “all personal property,” or even furniture.o We hold that the gift to Alice of “all my personal effects including clothing and

household goods” means articles associated with the person, including clothing and household goods, and does not include cash or stock.

In re Estate of Strengel, 557 S.W.2d 255o Testatrix bequeathed “personal effects.”

o “Personal effects” was employed in primary sense of tangible personal property.o Probate and circuit court held that “personal effects” did not include testatrix’s bonds,

stocks, savings and loan accounts, cash, and coins because they were not tangible property worn or carried about the person or tangible property having some intimate relation to the person of the testatrix.

o In addition, testatrix’s jewelry, which was inside a safe deposit box, was not intended to be included in “personal effects.”

Not worn as adornments Not kept as keepsake, tokens, or remembrances (see Barnes v. Maddox) Kept in safe deposit box

o Therefore, jewelry was not intended to be included in the term “personal effects.” In re Estate of Bloomingdale, 142 N.Y.S.2d 781

o Testator devised “all my personal belongings and effects”o The items in question were a yacht and six automobiles.o “The test is whether the articles are or are not used in or by the household, or for the

benefit or comfort of the family.” Application: both the yacht and automobiles were used by the testator and his

family. The court found the testator intended to bequeath the yacht and motor vehicles to his widow.

In re Jones, 128 Misc. 244o Testator devised homestead property … with all household goods and furniture,

personal effects and contents … to his wife. o Ejusdem generis applied to limit personal effects and contents to household goods and

furniture. o Application: medicines and drugs, cabinet of medical instruments, operating table,

scales and measuring appliance passed under the residuary clause and not the widow.o Two automobiles pass under “personal effects.”

In re Burnside’s Will, 185 Misc, 808o Automobile did not pass under the residuary clause

Child v. Orton, 119 N.J. Eq. 438o Silverware was part of testatrix’s ‘personal effects.”