Gallagher v. McKeague, 125 Wis. 116

Gallagher v. McKeague

125 Wis. 116 | Wis. | 1905

Cassoday, C. J.

It is claimed by the appellants that the trial court improperly held that the testator died intestate as to a large portion of his personal estate. This contention is based upon the arrangement of the provisions of the will as well as the language employed. The testator specifically devised all of his real estate as mentioned in the foregoing statement. By the first clause of the will the testator devised to the appellants the house and lot then occupied by him, together with the bam thereto belonging. His moneys,, notes, certificates, contracts, and personal property were all in his possession on the premises when he executed the will and when he died. He also made eight specific bequests out of his personal estate, to the aggregate amount of nearly $1,500. And finally, by the tenth clause of the will, he bequeathed to the appellants “all the household furniture and effectsIt is conceded that the question for determination-is whether “the word 'effects’ is to be given the significance to which it is entitled when standing alone, or whether such meaning is colored or cut down by association -with the word 'household’ in the same clause.” Counsel invokes the well-*119established rule that no intention of the testator to die intestate as to a part of bis estate cán be presumed when his words, as found in his will, can fairly be construed to dispose of his whole estate; that whenever the words of a will, fairly construed, are such as to carry the whole estate, it will be presumed that the testator intended to dispose of all his property. Schouler, Wills (3d ed.) § 490; Ferry’s Appeal, 102 Pa. St. 207; Miller’s Appeal, 113 Pa. St. 459, 6 Atl. 715; Woodside’s Estate, 188 Pa. St. 45, 51, 41 Atl. 475; Vernon v. Vernon, 53 N. Y. 351; Given v. Hilton, 95 U. S. 591, 594; Taubenhan v. Dunz, 125 Ill. 524, 17 N. E. 456; Saxton v. Webber, 83 Wis. 617, 628, 53 N. W. 905; In re Donges’s Estate, 103 Wis. 497, 501, 79 N. W. 786. The language of the will in question is not in the form of a residuary bequest, nor such as necessarily to imply an intention on the part of the testator to dispose of his whole estate, as is frequently the case. In re Bagot: Paton v. Ormerod, L. R. 3 Ch. Div. 348; Miner’s Will, 146 N. Y. 121, 40 N. E. 788; Lawrence v. Barber, 116 Wis. 294, 93 N. W. 30. True, no particular'form of expression is necessary to constitute such residuary bequest, but the intention to pass the whole estate must be expressed in some form. We find no case where the presumption against intestacy has prevailed when the language of the will, fairly construed, is insufficient to carry the whole estate. True, as urged by counsel, the word “effects” is of very general significance, and by all the authorities is equivalent, at least, to personal property, which is the only kind of property here involved. In addition to the authorities cited by counsel, see Cent. Diet.; Bouv. Diet.; 3 Words & Phrases, 2320-2323; Schouler, Wills (3d ed.) § 509. As stated in one of the adjudications cited,

“The words ‘personal effects,’ in a will, when not restricted by the context, mean everything embraced within the description ‘personal property.’” Reimer’s Estate: Ewing’s Appeal, 159 Pa. St. 212, 28 Atl. 186.

*120But here the word “effects” is not used in. a general or unlimited sense. If it were to be here so construed it would include all the personal estate, and hence would be repugnant to the fifth, sixth, seventh, eighth, and ninth clauses of the will, which contain the eight specific bequests mentioned. It certainly was not intended to be used in a general and unrestricted sense in the clause in question. As here used it is expressly restricted to “all the household furniture and effects.” The word “household” naturally and necessarily qualifies the word “effects” as much as it does the word “furniture.” An English case, decided a hundred years ago by the distinguished Sir William G-bakt, is directly in point. Rawlings v. Jennings, 13 Ves. Jr. 39, 46. In that case the testator, after making a certain bequest to his wife in his will, added this clause: “together with all my household furniture and effects of what nature or kind soever that I may be possessed of at the time of my decease.” In deciding the case the learned Master of the Rolls said :

“The second question arises upon the widow’s claim of the whole residue of the personal estate as passing to her under the general word ‘effects.’ That claim cannot be sustained. Part of his property being particularly given to her after-wards, the word ‘effects’ must receive a more limited interpretation, and must be confined to articles ejusdem generis with those specified in the preceding part of the sentence, viz., household furniture.”

Two year’s afterwards the Lord Chancellor referred to that case as having settled in that court “the doctrine” that the words “other effects,” as thus used, “in general mean effects ejusdem generis Hotham v. Sutton, 15 Ves. Jr. 319, 326. While such doctrine is conceded, the facts are distinguished in Parker v. Marchant, 1 Younge & Col. N. C. 290, 303, 304; Rex v. George, L. R. 4 Ch. Div. 435, 446; In re Londesborough: Bridgeman v. Fitzgerald, 50 L. J. Ch. 9. The doctrine of Rawlings v. Jennings, supra,, has been expressly sanctioned in a late case in Pennsylvania, wherein it *121is Reid that “when a testator enumerates particular kinds of chattels, and couples with them the word ‘effects,’ or equivalent words, the -generality of his expression is to he restricted to such species of property as are ejusdem generis with the particular words.” Lippincott’s Estate: Reahert’s Appeal, 173 Pa. St. 368, 34 Atl. 58. That case was followed in a later case in that state, in which it was held that, “where a residuary clause is omitted in a will, it is neither necessary nor proper to give the residue to some specific legatee upon a forced construction of words which do not indicate such a purpose in the mind of the testator.” Schmidth’s Estate: Beckers Appeal, 183 Pa. St. 641, 38 Atl. 1086. Of course, the rule ejusdem generis ordinarily limits the meaning of general words to things of the same class as those enumerated under them. 3 Words & Phrases, 2328, and cases there ■cited. We must hold that the words “and effects,” as used in the will in question, are limited to household effects, as held by the trial court.

By the Oourt. — -The judgment of the circuit court is affirmed.