26 Del. Ch. 55 | New York Court of Chancery | 1941
Alfred D. Peoples died in Wilmington in 1939, unmarried and without issue. By the first Item of his will he made a gift to a business associate, Vaughan Clavey, one of the respondents. He made various other specific gifts and left his residuary estate in trust, all for the benefit of his sister, nieces, nephew and cousin, his nearest relatives. The question raised is whether certain property was included in the gift to Vaughan Clavey, or whether it passed under the residuary clause. The pertinent Item reads thus:
“Item 1. I give and bequeath to Vaughan Clavey, of the City of Wilmington, Delaware, in recognition of his faithful services, all of the contents of my hardware store known as No. 507 Market Street, Wilmington, Delaware, except the contents of my apartment on the second floor, which I specifically bequeath in Item of this will. This bequest to him includes all bought and sold in the hardware business and all other articles of personal property in said building except the said contents of my apartment. I also give and bequeath to him the note of his Mother Sallie Ann Clavey, for Twenty Five Hundred Dollars. I direct and will, that he shall not be required to pay any rent for the store or any part of the building No. 507 Market Street, for a period of six months from the date of my death.”
Certain facts concerning the testator and his property were alluded to by the solicitors as having a bearing upon the construction of the will. In 1879, the testator engaged in the hardware business, and from 1898 to the time of his death, he was the sole proprietor of a hardware store at 507 Market Street in Wilmington. There he spent his time, except while away on pleasure trips which he frequently made. In 1905, the respondent Clavey was employed as a clerk in
The respondent Clavey puts forward two alternative constructions of the gift to him. First, he says that the language of the will should be construed as a gift of the hardware “business” as a whole and as a going concern, and that consequently, the balance in the bank account and the receivables (subject to the accounts payable) are comprehended. Cases are cited for the proposition that a gift of a business includes such items as these. Even conceding this, it still remains to be established that the subject of the gift described in the will is the hardware business. In each of the authorities cited, there was a gift in terms of a business, with the exception of the case of In re Lowe, 149 App. Div. 347, 134 N. Y. S. 537, affirmed 206 N. Y. 671, 99 N. E. 722. There, a gift of the testatrix’ “printing office and bindery, together with all the presses, bindery machinery, type, paper on hand, office furniture and equipment of every nature connected with said business” was, under the circumstances of
The other construction urged by Clavey is that if the language be deemed not to constitute a gift of the hardware business, nevertheless, the expression “all of the contents” embraces the merchandise and fixtures, the safe, the watch and chain, the cash, checks and bond, the stock and debentures represented by certificates found in the safe, and also the bank balance represented by the deposit book; that the words “all bought” in the hardware business mean all of the merchandise whether paid for or not; and that “all * * * sold in the hardware business” means the right to collect money due for goods sold, that is, the receivables. The residuary donees deny that the language in question comprehends the intangibles or anything other than the merchandise, furniture and fixtures in the store.
Clavey’s contention with respect to the accounts receivable seems somewhat strained. The expression beginning
The use of the expression “all of the contents” is a loose way to designate the subject of a bequest, and frequently gives rise to questions as to what property the testator meant his language to embrace. Winkler, Ex’r., v. Woodruff, et al., 21 Del. Ch. 147,182 A. 409. However, in the absence of some indication otherwise, the general scope of the expression is to be given its full effect. Winkler, Ex’r., v. Woodruff, et al., supra; Old Colony Trust Co. v. Hale, 302 Mass. 68, 18 N. E. 2d 432,120 A. L. R. 1207. In the latter case, a distinction is drawn between a gift of the contents of a house and a gift of the contents of a particular receptacle, such as a chest or safe; to the effect that unless a different intent appears, the former gift does not include intangibles, but the latter may, where some tangible representation or evidence of the property, as for example, a stock certificate or bond, constitutes a part of the contents. This distinction is given support by authorities cited in the annotation following the Massachusetts case, in 120 A. L. R. 1210.
Here, there are other indications of the meaning to be ascribed to the gift of the “contents”. In the same item of the will, the testator states that the gift includes the merchandise “and all other articles of personal property in said building except the said contents of my apartment.” The expression “all other articles of personal property,” as so used, manifestly denotes tangibles only. Merrill v. Winchester, 120 Me. 203,113 A. 261 ;QC.J. S., Article, p. 776. Still in the same item, but as a separate bequest, the testator gives to the same donee a note for twenty-five hundred dollars, which was found in the safe. If he had-intended the preceding descriptive words to comprehend intangibles, this would not have been necessary. Thus, in designating property to be included in the gift of the “contents”, he mentions only tangibles; whereas, the one intangible referred to is the sub
A decree in accordance with this opinion will be advised.
Note. Affirmed by the Supreme Court on appeal. See post p. 446, 28 A 2d 309.