Bromberg v. McArdle

| Ala. | Jun 7, 1911

McCLELLAN, J.

The construction, in a particular, of the last will and testament of Ann McEvoy, deceased, will determine the single question presented by this appeal. The first and second items and the general residuum clause of the will, omitting signature, attestation, and other formal parts, will be set out in the report of the appeal. The contention, between counsel, is, whether the words, “all other personal property” in the phrase, “together with all household and kitchen furniture, and all other personal property contained in said residence,” in item 2 of the instrument, include $800 in money found “in a pocketbo'ok in the drawer of a bureau” in the residence before mentioned.

While Code, § 2, defines, among other words, “personal property” and includes- in its signification “money,” among other species of property, that legislative declaration is limited in effect to such words, as are defined, when employed in the' codification. — Bickley v. Keenan, 60 Ala. 293" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/bickley-v-keenan--co-6510066?utm_source=webapp" opinion_id="6510066">60 Ala. 293; McGowan v. Collins, 154 Ala. 299" court="Ala." date_filed="1908-04-07" href="https://app.midpage.ai/document/mcgowan-v-collins-7363236?utm_source=webapp" opinion_id="7363236">154 Ala. 299, 46 So. 228" court="Ala." date_filed="1908-04-09" href="https://app.midpage.ai/document/western-union-telegraph-co-v-adams-7363305?utm_source=webapp" opinion_id="7363305">46 South. 228. So, in the interpretation to be here made no-, aid can be derived from the statutory definition mentioned. In ordinary parlance, of familiar use by lay, as well as professional, persons, the term “personal property” includes in its signification money, goods, chattels, etc. — Bruckman’s Estate, 195 Pa. 363" court="Pa." date_filed="1900-04-16" href="https://app.midpage.ai/document/bruckmans-estate-6245796?utm_source=webapp" opinion_id="6245796">195 Pa. 363, 368, 45 Atl. 1078; Underhill’s Law of Wills, § 308, and citations made in note 5 thereto. But- under the influence of the doctrine noscitur a sociis, such a general term as that employed in this-‘will is, when consisting with the expressed' or necessarily inaplicable,' from words used, intent of the testator, restricted to a much limited effect. — Schouler on Wills, § 514; Dole v. Johnson, 3 Allen (Mass.) 364; Tefft v. Tillinghast, 7 R. I. 434; Wolf v. Schoefner, 51 Wis. 53, 8 N. W. 8; Bond v. Martin (Ky.), 76 S. W. 326; Bruckmam's Estate, supra; Underhill’s Law of Wills, § 308. This rule of restriction of general terms by associated words of narrower import must and does yield, as its statement indicates, to the testator’s intent as gathered from the whole instrument. — Schouler on Wills, § 514; 1 Jarman on Wills, 759.

It is the contention of counsel for appellant that the words, “all other personal property,” following-as they do, in item 2, the designation of household and kitchen furniture as subjects of bequest to the daughter Elizabeth, restrict the general terms to personalty ejusdem generis with the specified subjects of bequest. The rule to which appellant’s counsel appeals is, of course, well recognized. It ha.s been taken account of and applied in the following, among other, cases of a general character similar to that at bar: Tefft v. Tillinghast, supra; Dole v. Johnson, supra; Bond v. Martin, supra; Wolf v. Schooffner, supra. The text-writers- before cited afford further illustration of its application. But, as we have said, upon obviously sound reason and abundant authority, the intention of the testator, to be ascertained from the whole instrument, will not suffer sacrifice by adherence, notwithstanding, to the rule stated. — Schouler on Wills, § 514. From a cautious consideration of the whole will of Mrs. McEvoy, it must, we think, be held that the interpretation taken by the probate court was and is correct.

The will, in items other than the first and second and the general residuum clause, consists entirely of devises of separate lots of. real estate to children and grandchildren of the testatrix. Elizabeth McEvoy is made one of the executors. To her the devises and bequests expressed in the second item are made. Upon her the will,, in item' 2, devolved the duty to pay the funeral expenses, costs of administration, and all other debts or obligations chargeable against the estate, the property (real) devised by the will being thereby expressly exonerated from charge on those accounts. The sum of the purpose of the testatrix, to be read from the whole, instrument, was to lay the obligation for the payment of the demands mentioned upon the personal estate, in exemption of the real property from charge therefor, and to-that end the bequest was of all of the personal estate, contained in the residence, to' Elizabeth, whom the testatrix directed to pay and discharge the obligations enumerated. It is argued, in opposition to the interpretation of the will in the particulalr with which this appeal is concerned, that such a view renders vain the general residuum clause therein. If that effect of the conclusion could, on this record, be affirmed, it would not, in our opinion, suffice to negative the testatrix’s stated intent in this regard. Nevertheless, we find nothing in the record even tending to' show that at the time of the execution of the instrument the testatrix had no other property, than that previously thereien devised or bequeathed, which would then have passed under the influence of the general residuum clause.

The probate court correctly construed the will in this particular, and its action, in consequence, must be affirmed.

Affirmed.

Simpson, Mayfield, and Sayre, JJ., concur.