Quick v. Owens

Full title: QUICK v. OWENS

Court: Supreme Court of South Carolina

Date published: Jul 16, 1941

198 S.C. 29 (S.C. 1941)

15 S.E.2d 837

Opinion

15295

July 16, 1941.

Before MANN, J., Marlboro County, March 4, 1941. Affirmed.

This is an action by S.J.T. Quick, as executor de bonis non of the estate of Ebbie Quick, deceased, against J.K. Owens as executor of the estate of Florence Quick, deceased, involving ownership of money. From an adverse judgment, the defendant appeals.

The order of Judge Mann, ordered to be reported, follows:

This case came up before me at the fall term of Court in Marlboro County and by consent of counsel was marked heard there and the hearing concluded recently before me at Columbia. The testimony had been taken by agreement of the parties by Henry A. Rogers, Clerk, as Referee, and the hearing was on the record but there was very little if any difference in the testimony of the various witnesses and I might say there was no real contradiction among them.

It is not necessary, I think, to advert here to the allegations of the complaint and answer. The questions to be solved are in themselves not complicated nor numerous, and as I see it depend mainly on the facts found and will appear sufficiently as I proceed.

Ebbie B. Quick died in 1927 at the age of eighty-two years, at his home in Marlboro County. He was a farmer and it appears had resided on this place all of his life. He was the father of nine children, eight of whom survived him. One son predeceased him but left two daughters to maintain his representation. As the children of Ebbie Quick married off they settled around him and at the time of his death, and for some years prior thereto, the only ones at home with him were the two single daughters, Florence and Pruella, and one of the granddaughters.

Of property, according to the inventory and appraisal filed in the Probate Court he left — personalty consisting of mules, wagons, cotton, corn, household furniture and fixtures appraised at $681.50; realty, 250 acres, appraised at $7,500.00.

His will, dated October 18, 1925, and a codicil dated February ____, 1927, were duly probated in the Probate Court of Marlboro County. By item 2 thereof he gave to two of his daughters, Florence and Pruella Quick, 100 acres of his land, describing it, and in the concluding part of this clause provided "and I also will to my said two daughters Florence and Pruella, all of the household furniture and fixtures and other personal property on the premises."

By the third item he gave to Ebbie W. Quick, a son, 4 acres of land, describing it, and in item 4 he devised all the rest and residue of his property in seven equal shares, one each to his six living children (omitting Florence and Pruella), and the other to the children of the predeceased son mentioned above. He named S.J.T. Quick executor. By his codicil he changed item 4 of his will so as to give this residue of his property, two-ninths to his daughters, Florence and Pruella, and one-ninth each to his sixth other children, and one-ninth to Ruby and Beatrice Quick (the children of his deceased son). It might be well here to set out verbatim these clauses of the will and codicil as they are those involved.

"Item Two: I will, devise and bequeath unto my two daughters Florence Quick and Pruella Quick, upon the death of either, the survivor to take, all of that piece, parcel or tract of land containing one hundred acres including the Home Site with the building thereon — Beginning at a stake the B.E. Moore line running in an Eastern direction to Crooked Creek, this line will run South of the house occupied by my son Martin; thence with the run of Crooked Creek to a point so that a line starting from this point and running in a Western direction and parallel to the Northern line will strike the Moore line and then run with the Moore line to the beginning corner and make a tract of one hundred acres — And I also will to my said two daughters, Florence and Pruella, all of the household furniture and fixtures and other personal property on the premises."

"Item Four: All of the Rest and Residue of my property I will and devise and bequeath one seventh each to Martin Quick, Braxton Quick, Carey Quick, Ebbie W. Quick, Elon Quick, one seventh jointly to Ruby Quick and Beatrice Quick, the children of my deceased son Lauder Quick, and one seventh to Lela May Caulk."

"Item One Codicil: I hereby revoke provisions of Item Four of said will and insert in lieu thereof the following: `All of the rest and residue of my property I will and devise unto my two daughters Florence and Pruella Quick two ninths thereof, in the event of the death of either during my life time the survivor to take; one ninth of such residue each to Martin Quick, Braxton Quick, Carey Quick, Ebbie W. Quick, Elon Quick and Lela May Caulk, and the remaining one ninth to Ruby Quick and Beatrice Quick, and in the event of the death of either Ruby or Beatrice during my life, the survivor to take said one ninth of the residue."

S.J.T. Quick duly qualified as executor and wound up the estate. It seems his main duty was a division of the real estate, there being no debts, and he actually handled no money. The real estate was divided up among the children according to the will, Florence and Pruella taking both the 100 acres specially devised to them and their share of the residue, and they continued to reside at the old home.

Some years afterwards, probably about 1933, it is not clear from the testimony, Pruella died and the testimony does not show how her property went, or whether she was testate or intestate.

Florence died October 4, 1937. She left a will, in which she devised her property, speaking generally, to four of her brothers and sisters, leaving specific devises to her two nieces, the children of the predeceased brother. The practical effect of her will was thus to carry the property to the children and grandchildren of Ebbie Quick, just as he had devised in his will, except that she left out two of his children, Mrs. Caulk and Carey Quick, her brother and sister.

J.K. Owens, Esq., was named and qualified as executor of Florence's will and in due course, within a day or two after her death with the appraisers of the estate and members of the family met at the homestead to make the inventory and appraisement. According to the testimony they had gone over the house and found nothing out of the ordinary and had really started to leave when Mrs. Caulk — omitted from the will — suggested that they look into a locked trunk which was in the house. One of the nieces had lived with Florence and her grandfather, Ebbie Quick, produced the key to this trunk and they began looking through it and discovered $8,642.26 of cash money wrapped up in all sorts of old papers, books, pamphlets and in pocketbooks. It is this money that has brought about this suit, the plaintiff, the executor of Ebbie Quick, Sr., having the support of his two children who were not included in the devise under Florence's will and the defendant, the executor of Florence's will, having the support of the others, who would take the property devised in her will to the exclusion of the brother and sister left out by Florence. On the one hand the claim is that this money rightfully belonged to Ebbie Quick's estate. On the other, first, that it was Florence's money, and, second, even if it was Ebbie's, it passed under the concluding clause of item 2 of his will and plaintiff had no right to it.

As to the first question — Whose was the money? I am convinced that all or the major part of it did belong to Ebbie Quick, the testator. The testimony satisfies me on that point.

In the first place, the logical inference from the facts proved is that Ebbie Quick would have had an accumulation of money at his death. I think that a consideration of the testimony will lead to no other conclusion. He was shown to have been an industrious farmer, that he carefully managed his plantation and had an extensive and high-class farm, providing the means of earning a good return. As a matter of fact, it was proved that he was a successful producer and consistently made crops better than the average. His activities extended over many years, he being eighty odd years old when he died. He was most frugal, and had good business habits. He would sell his cotton crop every year, not storing his cotton, but he would sell it when he had accumulated sufficient lots to make it attractive to purchasers. He did not have any mortgage or lien merchants over to him to dictate his sales or the price of his purchases. He kept expenses down. He worked — his children worked. He always paid cash for his fertilizers and supplies — a fact which itself shows he was an accumulator and not a spender, and kept cash on hand. Indeed all of the witnesses who testified stressed this side of his nature. He managed things conservatively and he saved his money. He had no extravagances or dissipations; was frugal, thrifty, saving. He lived at home and spent his money neither on lands, automobiles nor high living.

All this indicates that it was to be expected that he should have had money — that he did have more than one circumstance indicates — year in and year out, good and bad financial years, he dealt only in cash. As already mentioned, he paid cash for fertilizer and supplies and therefore he must have had a store of funds from which he could draw. The evidence shows that he did not deal with banks and always had to have the cash for what he sold. If he had to take a check, he promptly converted it into cash. He had his own place to keep it. At no time, according to the testimony, during his lifetime or during that of his daughters after him was the house ever left unprotected. They never all left home at the same time, and if they went out no further than the immediate premises the doors were locked up.

More direct proof, though hardly more convincing to the mind, are the details of one of his sales of cotton made in 1922 or 1923.

This was long after the boom period of 1918 to 1920, for it must be remembered that during those years he must, in common with all the other farmers, have enjoyed great prosperity. He was in the prime strength of his manhood development and it can hardly be thought that he did not share in the general prosperity.

In 1922 or 1923, he sold his cotton crop for that year, or a part of it, to a cotton buyer in Cheraw, the amount coming to twenty-five hundred or three thousand dollars. The plaintiff, S.J.T. Quick, was the intermediate man in the transaction. True to his principle the testator stipulated that he was to receive the cash and not the check of the buyer, so S.J.T. Quick had arranged with the bank at Cheraw to cash the buyer's check on delivery of the cotton. On the appointed date Ebbie Quick sent over to Cheraw two of his sons to bring back the money, and with S.J.T. Quick they went to the bank, who made up the money, put up the bills, as usual with banks, into separate bundles or bales with bands around them, and the sons, on arriving back at the testator's home late in the evening, turned the money over to Florence and Pruella and went on to their respective abodes.

When the trunk was opened at Florence's death, among the money there were found many unbroken packages of bills and one of these sons who was there taking part in the counting recognized the money and spoke out that that was the cotton money they had brought him from Cheraw. This statement was objected to. I think it is competent, but even if it is not, it was merely cumulative. That the unbroken packages of bills were there is undisputed and this is the only explanation of their presence in the testimony. In the trunk along with the money were found papers that were undoubtedly the testator's, among them business records of his, for example, receipted bills paid by him to Stephen Quick, whose estate it is shown was administered in the Probate Court for Marlboro County in 1891. The apparent great age of the accumulation of money struck all the witnesses. Many of the bills were the old large size bills, not recently in circulation. There was an accumulation of silver dollars, turned black by age. There is no testimony of any gold found but there are undisputed statements that Florence had, after the calling in of the gold by the government, spoken of having gold and that she had gotten one of the witnesses to take over $700.00 in hard gold and gold certificates to the bank and to bring back her currency for it, and that she told him not to tell any one about it.

There are various other facts and circumstances enforcing the conclusion that the money was mainly that of the testator, Ebbie Quick, but it does not seem necessary further to detail them. On the other hand the facts adduced to prove that the money was that of Pruella and Florence are not impressive.

The witnesses testifying in the case were generally speaking either members of the family or near neighbors — persons familiar with the lives of the testator and his family. If there had been anything to account, either for the loss or dissipation of his money by the testator, or of any source to account for the possession of such a large amount by Florence, such as an inheritance or a windfall of some sort undoubtedly it would have been known and testified to. No effort along that line was made but on the contrary it was testified that nothing of that sort had happened.

The facts relied upon are that these ladies were frugal, careful and spending no money on extravagances of any sort; that they sold eggs, chickens, turkeys and produce of that sort; and that they saved their money, all of which their father did with a much larger farm, over a much longer time, and with much better financial conditions, several years of which were unprecedented. When it is remembered that they came into possession of only a part of the farm which their father had, and that their tenure was largely during the period in which our country has passed through the greatest depression in our entire history; in which excellent farmers have by the scores and hundreds been wiped out financially, it is hardly possible to believe that these ladies would have been so successful. The records of their farming operation, in the way of the reports of the cotton ginned from their place, were introduced and any possibility that Florence or both of the sisters could have amassed so large a saving is absolutely precluded by them.

So much for that. As stated, I am satisfied that the hoard was that of Ebbie B. Quick.

Now as to the second defense: That granted the money was Ebbie Quick's, it passed under the provision of the will "and I also will to my said two daughters, Florence and Pruella, all of the household furniture and fixtures and other personal property on the premises." I find myself unable to agree to this construction. The words quoted occur at the conclusion of a section of his will devoted to devising to the two daughters the old home residence and a major part of the farm surrounding it, going into minute details as to how the devised property should be cut off from the remainder of the farm. He then adds these words: And "all of the household furniture and fixtures and other personal property on the premises," evidently, I think, meaning to infer a connection or relation between the devised premises and the personalty that he "also" gave to them far closer than merely presence "on the premises." I have no idea that he meant by these general words to dispose of money to a value greater than the land that he so carefully delimited.

It is not the fact here that unless these words are extended to embrace money that he would die intestate. In the fourth clause he disposed of the rest and residue of his estate and divided it among his other heirs, certainly evincing a benevolent intention toward his children and grandchildren. Then, and I think this is significant of his mind, about a year afterwards he made a codicil and changed this clause so that his entire residue estate should go to all his children (and grandchildren) giving Pruella and Florence a part of this residue. It does not appeal to me as being reasonable that he would have gone to all this trouble for the benefit of his two daughters if they were by it only to receive an additional share in the remainder of the farm, of which they had already received the major part. If he had considered that they already had received a home and the best part of his farm and all the equipment and furnishings thereon, and cash money to an amount more than the value of all this land, it doesn't seem probable that he would have exercised himself to give them an additional part of the land at the expense of his other children.

However, I am relieved of any great discussion of the proper construction of these words. They come within the well-known ejusdem generis rule. The plaintiffs in their argument cited, among other cases, the rather recent case of Gist v. Graig, 142 S.C. 407, 141 S.E. 26, and I quote rather extensively from it as it seems to me to demonstrate the correctness of the conclusion that I have reached above. I note here that in the present case there is a residuary clause; in fact two residuary clauses, because there was one in the will in the first place and it was repeated in the codicil, and that the question here is not whether the testator should be deemed to have died intestate as to the money but whether the money should pass to two of the children; or whether it is included in the residuary clause and is to be divided among all the heirs.

While my mind is on this point, I may say that the defendant cited the case of Stuckey v. Stuckey, I Hill Eq., p. 308, as holding that money could pass under a clause disposing of "all the rest of my property that is not above mentioned, such as horses, cattle, hogs, sheep, geese, beds, crops, and other articles too tedious to mention."

I have examined that case and I think it is rather authority to sustain the conclusion I have heretofore reached. This was a case where, unless the money was allowed to pass under the residuary clause, the testator would have died intestate, and as stated in this case, the Courts avoid a construction that will entail such a consequence if it is possible, and in construing residuary legacies, give them as broad a meaning as possible. But here, the effort is to see that this undesignated money passes, not under the clause disposing of all the rest and residue of testator's property, but under the provision disposing of all the household furniture and fixtures and other personal property on the premises.

The following is a statement of the Court in the Craig case ( 142 S.C. 407, 141 S.E. 38), which, it seems to me, is decisive of the construction here.

"III. The next matter for consideration is the contention of Mrs. Helms that she is entitled to the money which Mrs. Rice had on deposit in the Bank of Carlisle, in the Columbia Bank, and in the Winnsboro Bank, at the time of her death, and other property hereinafter referred to, under item 1 of Mrs. Rice's will.

"It appears that at the time of her death Mrs. Rice had to the credit of her ordinary checking account in the Bank of Carlisle $4,445.73, and under similar conditions in the National Exchange Bank $197.60, and in the Winnsboro Bank $767. She also had in her possession at the time two time certificates of deposit issued by the Bank of Carlisle, one for $5,693.35 and the other for $2,076.49, a total of $13,180.17, practically in cash. Liberty bonds of the value of $2,500, 9 shares American Products Export Import Corporation of the value of $35 and 4 bales of cotton appraised at $570; a grand total of $16,285.17.

"Item 1 of Mrs. Rice's will provides:

"`I give, devise and bequeath to Louise Douglass Harrison sixteen shares of the National Loan Exchange Bank Stock in Columbia, S.C. my gold watch, all of my silver, household furniture, automobile and all personal property owned by me not mentioned herein.'"

Louise Douglass Harrison is Mrs. Helms. This is the item under which she claims the above sum aggregating $16,285.17.

His Honor, the Circuit Judge, held, in reference to the items other than the certificates of deposit, aggregating $8,515.33: "In no other item of the will is disposition made of the personal property not otherwise disposed of save in item 1(1). Money, Liberty Bonds, stock, cotton are personal property, and I hold the words, `All of my personal property owned by me not mentioned herein' are sufficiently comprehensive to include the articles of personal property in dispute."

It does not appear when these items were acquired or from what source. They may have existed at the time the will was executed or they may have been acquired thereafter. It is more than probable that they were acquired afterward; else these would most likely have been referred to specifically in the will. It is not improbable that their source was proceeds of collections from notes and mortgages, but, as this has not been shown, they fall under the general rule of ademption, having been mingled in unidentified form with her other property.

The question is whether they are covered by Item 1 of Mrs. Rice's will. That item gives to Mrs. Helms 16 shares of bank stock, gold watch, all silver, household furniture, automobile, "and all personal property owned by me not mentioned herein." Inasmuch as Items 2, 3, 4 and 5 of the will cover land, shares of stock and money, and not articles which, while technically "personal property," in the common acceptation of the terms cover articles more directly associated with the person, and as the inventory shows that Mrs. Helms received such articles as pictures, books, sewing machine, umbrellas, etc., under Item 1, I think that the expression "all personal property owned by me not mentioned herein," has reference to Item 1, and not to the will generally, and was intended to cover articles which the testatrix owned for her personal use and enjoyment, articles of a personal nature similar in character to those enumerated, and did not cover any of the items making up the aggregate $8,515.33, which consists mainly of choses in action. It seems unreasonable to suppose that the testatrix intended, while bequeathing property to Mrs. Helms, worth about $3,500.00, she should in addition, under a questionable provision, receive $8,500.00.

In Gardner on Wills, 401, 402, it is said:

"The effect of any general word in a will may be affected by the rule, of universal application in the construction of Statutes or documents of any description, that where certain things are enumerated, and a more general description is coupled with the enumeration, that description is commonly to be understood to cover only things of a like kind with those enumerated. Thus where a bequest was made `of all my housekeeping articles, including household furniture, beds, bedding, * * *. Books, pictures, all my wardrobe, and all other articles of personal property in the house at the time of my death belonging to me.' It was held not to cover certain promissory notes in the house belonging to the deceased."

"But it is a sound rule of interpretation, that when an author makes use * * * of terms * * * evidently confined and limited to a particular class of a known species of things, and then, after such specific enumeration, subjoins a term of very extensive signification, this term, however general and comprehensive in its possible import, yet, when thus used, embraces only things `ejusdem generis' i. e. of the same kind or species, with those comprehended by the preceding limited and confined terms." Ex parte Leland, 1 Nott. McC., 460.

"There is no question that general and unlimited terms are restrained and limited by particular recitals, when used in connection with them, whether they are found in the recital of a bond or covenant, or any other writing, or used in ordinary conversation, for the obvious reason that they convey a more definite idea, and are therefore less liable to misconception." Treasurers v. Lang, 2 Bailey, 430.

To the same effect are 36 Cyc., 1120, 25 A. E. Enc. L., 1012; Alabama v. Montague, 117 U.S. 602, 6 S.Ct. 911, 29 L.Ed. 1000, 14 Words and Phrases, Perm. Ed., p. 135; State v. Williams, 2 Strob., 474; Commissioners of Public Accounts v. Greenwood, 1 Desaus., 450; United States v. Fisher, 2 Cranch, 358, 2 L.Ed. 304; United States v. Baumgartner, D.C., 259 F. 722; United States v. Florida East Coast R. Co., 5 Cir. 222 F. 33; Hills v. Joseph, 9 Cir. 229 F. 865, 2 Lewis' Southerland, Stat. Const., 814, cited by his Honor, Judge Watkins, in the case of Southern Railroad Co. v. Columbia Compress Co., 4 Cir. 280 F. 344. Also Andrews v. Schoppe, 84 Me. 170, 24 A. 805; In re Reynolds, 124 N.Y. 388, 26 N.E. 954; Tallman v. Tallman, 3 Misc. 465, 23 N.Y.S. 734, 40 Cyc. 1541; Misch v. Russell, 136 Ill. 22, 26 N.E. 528, 12 L.R.A. 125.

In Bond v. Martin's Adm'r, Ky. 76 S.W. 326, 327, the will devised and bequeathed her residence with all its contents "furniture, bedding, silver, everything in or about the premises, `all personal property wherever it may be.'" The Court held that the words italicized were only intended to apply to the property described and other like personal property and did not cover bank stock held by her. The case of Andrews v. Schoppe, 84 Me. 170, 24 A. 805, is particularly instructive.

The items aggregating $8,515.33 under discussion did not pass to Mrs. Helms under Item 1 of Mrs. Rice's will; they did not pass to the orphanage under the unnumbered clause; they are intestate property to be administered as such.

The case of Cooper River Bridge, Inc., v. South Carolina Tax Commission, 182 S.C. 72, 188 S.E. 508, is just as explicit. 28 R.C.L. p. 224, Section 186, p. 244, Section 210 lay down the general rule.

I do not think that it was necessary for the plaintiff to prove that all or how much of the money found belonged to the estate of Ebbie Quick. Once it is determined that the money or a major part of it did belong to that estate, then the estate of Florence Quick — who was in this regard an executrix de son tort, is liable and the burden is on them to show if any lesser part than the whole should be exacted from them, which has not been attempted.

Brief references to case of our Supreme Court only is here made, but the principle is well sustained and recognized as being essential to the accomplishments of justice.

Hubble v. Fogartie et al., 37 S.C.L. 413, 3 Rich. 413, text 415, 45 Am. Dec. 775: "Generally, any act of intermeddling which an executor can rightfully do, such as collecting the assets, selling the property, and paying the debts; or any act which usually evinces a legal control, as using the property as one's own, or wasting it, is sufficient to constitute an executor de son tort. If a person take possession of the goods of a deceased, with a view to take care of them, and negligently lose them, or suffer them to be destroyed, he would be liable as executor de son tort. These rules are sufficient to establish the liability of the defendants." Haley v. Thomas, 30 S.C. 270, text 273, 9 S.E. 110, 111: "Such executors have no right to reduce assets, and are therefore not chargeable for not reducing and administering them. `When a man has so acted as to become in law an executor de son tort, he thereby renders himself liable, not only to an action by the rightful executor or administrator, but to be sued as executor by a creditor of the deceased or by a legatee; for an executor de son tort has all the liabilities, though none of the privileges, that belong to the character of an executor'." Compare also S.C. Code 1932, Sections 8985, 8986.

Rolain's Adm'r v. Darby's Adm'r, 1 McCord Eq., 472, text 477: "Now, it is a great principle, familiar both at law and in equity, that if a man, having undertaken to keep the property of another distinct, mixes it with his own, the whole must be taken to be the property of the other, until the former puts the subject under such circumstances that it may be distinguished as satisfactorily as it might have been before that unauthorized mixture upon his part. Lupton v. White, 15 Ves., 436."

Myers v. Myers, 2 McCord Eq., 214, text 265, 16 Am. Dec., 648: "And there is no rule of Equity better settled, than that a trustee shall not be permitted to employ the trust fund for his own benefit. All purchases therefore made with the funds of the trust estate will be considered for the benefit of the cestui qui trust. That principle is exemplified in numerous cases where it has been held that executors, attorneys, and trustees, shall not purchase at their sales, nor of their cestui qui trusts, clients, c. All persons acting in such representative capacities are considered in Equity as trustees, and are governed by the same rules; and it is no answer on the part of the defendant, that he has so mixed up the two funds together that he cannot distinguish one from the other. A person may sometimes by mixing the estate of another with his own subject himself to the loss of both; for it is his own fault that they have not been kept separate."

In the recent case of Ex parte Michie, 167 S.C. 1, 165 S.E. 359, is a full discussion of the subject of tracing trust funds mingled with the trustee's but I think the foregoing are sufficient.

Having reached this conclusion, it is on motion of plaintiff's attorneys, ordered and adjudged that plaintiff do recover of the defendant the sum of $8,642.26, and that the defendant, executor of the will of Florence Quick, do turn over the same to the plaintiff for distribution in accordance with the will of his testator, and that he do also recover the costs of this action.

Mr. George K. Laney, of Chesterfield, Mr. J.J. Evans and Mr. J.K. Owens, both of Bennettsville, for appellant, cite: As to competency of testimony of party at interest: 1932 Code, Sec. 692; 47 S.C. 488; 25 S.E. 797; 3 S.C. 423. As to construction of wills: 1 Hill Ch., p. 308; 71 S.C. 205; 50 S.E. 794; 28 R.C.L. 212; 40 Cyc. 1544; 40 Cyc. 1541.

Messrs. Tyson Miller and Messrs. Stevenson Lindsay, all of Bennettsville, for respondent, cite: As to admissibility of statement against interest of deceased declarant, even as between third parties: 20 A.J., p. 402, sec. 453, p. 467, sec. 556, p. 522, sec. 608; 20 A.J., p. 553 et seq.; 1932 Code, sec. 692. As to construction of wills: 93 A.L.R. 510; 115 S.C. 145; 105 S.E. 275; I Hill Eq. 95; 28 R. C.L. 224, par. 186; 80 A.L.R. 936, at p. 948.

July 16, 1941. The opinion of the Court was delivered by

MR. ASSOCIATE JUSTICE FISHBURNE:

The main question presented by the appeal in this case arises in construing the will of Ebbie Quick, deceased, or rather that clause which relates to the bequest of the personal estate of the testator: "And I also will to my said two daughters, Florence and Pruella all of the household furniture and fixtures and other personal property on the premises."

The defendant executor, who occupies the same position in this litigation as would be occupied by the daughters, Florence and Pruella, if they were living, claims that the words, "All of the household furniture and fixtures and other personal property on the premises, —" are operative to pass to him the sum of $8,642.20 in cash which was discovered in an old trunk in the house or "home place" of the testator when he died. By a previous item of the will this home place was devised to the two daughters, Florence and Pruella.

It is the contention of the plaintiff that the words "other personal property on the premises," following as they do the designation of household furniture and fixtures as subjects of bequest to the two daughters, restrict the general terms to personalty ejusdem generis with the specified subjects of bequest. And he claims that the money passes under the residuary clause.

In giving construction to the clause in question, we must consider all of the words contained in it, and also its relation to other portions of the will, in order to ascertain if possible the testator's real intention.

It is true that the words "personal property" have a broad enough signification to include money, that is, silver and bank bills, such as was found in the trunk; but in this case, if it had been the intention of the testator to bequeath to the daughters so large an amount of money conditioned upon its being found upon the premises, we think it is hardly reasonable to suppose that he would have employed so general and inapt a term as "personal property," for that purpose, when he obviously might have made the bequest in unmistakable language. Had he intended to give to his daughters all of the money "on the premises," or any part of it; it is fairly presumable that he would have plainly said so. It is not a reasonable supposition that the testator would have left to such general and indefinite language the disposition of his cash estate, which the record shows represented more in value than all the remainder of his real and personal estate.

Again, we must consider all of the language of the clause in question, — the words, "all of the household furniture and fixtures," as well as "and other personal property on the premises"; and determine if we can what relation the respective words bear to each other, — whether the latter clause is restricted in meaning by the former, so as to bring into operation the rule of ejusdem generis.

In ascertaining the intention of a testator the rule is that where certain things are enumerated, and a more general description is coupled with the enumeration, that description is commonly understood to cover only things of a like kind with those enumerated. This is because it is presumed that the testator had only things of that kind in mind. So where the term "personal property" is used in a will, coupled with an enumeration of specific things, it has been held that money is not included under the general term.

Thus, in Dole v. Johnson, Mass. 3 Allen, 364, the testator bequeathed to his widow all his household furniture, wearing apparel, and all the rest and residue of his personal property. In construing the clause the Court said: "We think the meaning of the whole will is made most consistent by restricting the word `property' to chattels ejusdem generis with those enumerated. By this construction, the widow will take absolutely the household furniture, wearing apparel, and other chattels in and about the house of the testator, adapted to personal use and convenience — such as books, pictures, provisions, watches, plate, carriages, domestic animals and the like; but not including money, stocks, securities or evidences of debt."

In Peaslee v. Fletcher's Estate, 60 Vt. 188, 14 A. 1, 3, 6 Am. St. Rep. 103, the bequest was: "I give to my uncle, George L. Peaslee, of Auburn, Me., my home place on Prospect street, in said Burlington, with my household furniture, and all my personal goods and chattels on said premises at the time of my decease."

The will contained a residuary clause. After the bequest to her uncle, the testator gave all the rest of her estate, except two small legacies, to the Mary Fletcher Hospital. The Court said: "Upon these well-recognized rules of construction [ ejusdem generis], we hold that the words `goods and chattels,' in the connection in which they are found, should be construed as having only a restricted and limited signification, and as not including said Manwell notes and cash on hand; that they are further restricted in their meaning by the word `personal,' which indicates, when considered in its relations to the words `household furniture,' that the testatrix intended by the words in question to bequeath only other articles of the same kind, belonging to the house, — `savoring of the locality,' — adapted and pertaining to her personal use."

In Benton v. Benton, 63 N.H. 289, 56 Am. Rep. 512, the bequest was in this language: "I * * * give * * * my * * * wife * * * every article of household furniture * * * books [etc.] and every other article of personal property in and about said homestead, or wherever found belonging to my estate"; and under it the widow and the residuary legatees both claimed the bank shares, notes and cash on hand. The Court held that the words, "every other article of personal property," were limited to the same class of things as those enumerated, and did not include the bank stock, notes and cash claimed by the widow.

A similar holding was made in Johnson v. Goss, 128 Mass. 433. And see Annotations, Ann. Cas., 1913-D, 857; 80 A.L.R. 941; 120 A.L.R. 1211.

We have not here undertaken to give a review of all the facts and circumstances appearing in this case. They are very fully stated in the able decree of the Circuit Judge, which will be reported. We have merely sought to add a few additional authorities on the issue under discussion, which in our opinion strongly support the conclusions reached by the Circuit Court.

Were there no residuary clause in this will, the clause in question might and probably would be construed to pass this money to the defendant, for the reason that Courts are always disposed to give the broadest meaning practicable to the words of a bequest when it is necessary to do so in order to prevent intestacy. The same thing true when words of a general signification are found in the residuary clause itself, and for the same reason. Jarmon (Wills), in commenting upon cases which indicate the disposition of Judges of the present day to adhere to the rule which gives to words of a comprehensive import their full extent of operation, remarks, however, "that in all the preceding cases there was no other bequest capable of operating on the general residue of the testator's personal estate, if the clause in question did not. Where there is such a bequest it supplies an argument of no inconsiderable weight in favor of the restricted construction."

In the view we have taken of this case the money passes under the residuary clause of the will, which is set forth in the Circuit decree.

This Court is satisfied with the conclusions of his Honor, Judge M.M. Mann, on Circuit, and the reasoning on which they rest; the Circuit decree appealed from is affirmed and adopted as the judgment of this Court. Let it be reported.

MR. CHIEF JUSTICE BONHAM, MESSRS. JUSTICES BAKER and STUKES and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.