ADLER v. FIRST CITIZENS BANK AND TRUST COMPANY

No. 693SC166.

167 S.E.2d 441 (1969)

4 N.C. App. 600

Harold ADLER v. FIRST CITIZENS BANK AND TRUST COMPANY, Executor of the Last Will and Testament of Milton Sidney Adler, Wolfe Thomas Adler, minor, Judith Rachael Adler, minor, and Otho L. Graham, Guardian Ad Litem for Wolfe Thomas Adler and Judith Rachael Adler.

Court of Appeals of North Carolina.

May 28, 1969.


Attorney(s) appearing for the Case

William T. McCuiston, Raleigh, for plaintiff appellant.

Stevens, Burgwin, McGhee & Ryals, by Richard M. Morgan, Wilmington, for First-Citizens Bank and Trust Co., Executor of the last will of Milton Sidney Adler, deceased, appellee.

Boshamer & Graham, by Otho L. Graham, Morehead City, for Guardian ad litem of Wolfe Thomas Adler, and Judith Rachael Adler, minor defendant appellees.


FRANK M. PARKER, Judge.

The sole question presented by this appeal is whether testator bequeathed his houseboat named "Heaven" to his brother, plaintiff in this action, by Article VI of his will which provides: "I give and bequeath all the rest and residue of my personal effects, (exclusive of automobiles) including jewelry, clothing, household furniture and any china, silver and crystal not desired by my two first cousins, unto my brother, Harold Adler, if he is living at the time of my death." We agree with the trial court that he did not.

When a will is presented for construction the intention of the testator is to govern and this is to be ascertained from the language used by him, giving effect, if possible, to every clause, phrase, and expression in the entire instrument. Wachovia Bank & Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356. Moreover, a will is the most personal and individual of all legal documents. Through its language each individual testator seeks to express his own intentions as to the disposition after his death of his own properties among his own chosen beneficiaries. For him, his properties and his beneficiaries are unique. Therefore, the construction arrived at by the courts in interpreting other wills written by other testators under other circumstances and affecting other properties and other beneficiaries, serve only as useful guides. Ultimately, the ascertainment of the true intention of each testator as expressed in his will and as affecting his individual properties and beneficiaries, must be approached afresh in each individual case. Much depends on the wording of each particular will as it relates to the circumstances of each individual testator. "In the construction of a will, therefore, `every tub stands upon its own bottom,' except as to the meaning of words and phrases of a settled legal purport." Clark, C. J., in Patterson, v. McCormick, 181 N.C. 311, 107 S.E. 12.

The word "effects," standing alone, has anything but a "settled legal purport." See Annotation, 80 A.L.R. 941. As pointed out by Adams, J., in the case of In re Wolfe's Will, 185 N.C. 563, 117 S.E. 804, "the individual cases construing `effects' are of value only for the purpose of illustration, each case being a law unto itself; but there seems to be a practical unanimity of judicial decision, with the exception of certain English cases, that the word `effects' used simpliciter or in a general or unlimited sense and unaffected by the context, signifies all that is embraced in the words `personal property,' but is not sufficiently comprehensive to include real estate. `Effects,' however, may include land when used as referring to antecedent words which describe real estate, or when used in written instruments in which the usual technical terms are not controlling, as in Trustees [of University] v. Miller, 14 N.C. 188, Graves v. Howard, 56 N.C. 302, and Page v. Foust, 89 N.C. 447."

In the present case testator did not use the word "effects" simpliciter, but used it in the phrase "personal effects." The ascertainment of the correct meaning of these words in varying contexts has occasioned considerable difficulty. In re Burnside's Will, 185 Misc. 808, 59 N.Y.S.2d 829. In the present case, however, it is apparent that the testator did not intend these words as used by him in Article VI of his will to include all of his personal property of every nature. Such a construction would render completely meaningless the bequest of "(a)ll the rest and residue of my estate of whatsoever nature and wheresoever situated," as contained in the next succeeding Article of his will. Testator owned no real estate. He did own personal property of substantial value. He made elaborate and detailed provisions in Article VII for separate trust funds for the benefit of the children of his brother. In Article VIII he granted his trustee broad discretionary powers in the administration of these trust funds. The very care with which these provisions in Articles VII and VIII were drawn clearly negatives any idea that the testator had the draftsman of his will insert them merely to induge in an academic exercise in futility. Such would have been the case had he already disposed of his entire personal property of every nature by the provisions of Article VI. It is clear, therefore, that testator by using the words "all the rest and residue of my personal effects," in Article VI, did not intend thereby to dispose of all of his personal property of every nature. On the contrary, it is clear that he was using the words "personal effects" in a more limited sense.

"Every expression to be correctly understood ought to be considered with a view to the circumstances of its use." Poindexter v. Wachovia Bank & Trust Co., 258 N.C. 371, 128 S.E.2d 867; Heyer v. Bulluck, supra. The words "personal effects" have been defined as "property especially appertaining to one's person and having a close relationship thereto," Webster's Third New International Dictionary (1968). In the present case, however, the testator further clarified his intention by using these words in connection with others. He went on to exclude from the operation of these words any automobiles, thereby avoiding the interpretation which some courts have given when interpreting other wills. (See, e. g., In re Jones' Estate, 128 Misc. 244, 218 N.Y.S. 380; In re Winburn's Will, 139 Misc. 5, 247 N.Y.S. 584; contra, Jones v. Callahan, 242 N.C. 566, 89 S.E.2d 111.) He expressly included jewelry, clothing, and his household furniture, as well as such of his china, silver and crystal as should not be desired by his two cousins. By using the words "personal effects" in conjunction with these other terms, it is apparent that testator intended to include only things ejusdem generis with those covered by the other terms. A houseboat is clearly not ejusdem generis with articles of jewelry, clothing, household furniture, china, silver or crystal.

That testator was advertent to the fact that he owned the houseboat "Heaven" is apparent from his reference to it by name in Article IV of his will. The houseboat was of substantial value, as evidenced by the fact that it brought more than $6,000.00 when sold by his executor shortly following his death. The very fact that testator at the time of executing his will was advertent to his ownership of a houseboat of such value further strengthens our conclusion that he did not intend to dispose of it by relying upon a strained construction of the words "personal effects" to accomplish such purpose. Had he really intended to bequeath his houseboat to his brother, it is more reasonable to assume he would simply have said so.

The judgment appealed from is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.


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