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TURNER, et al. v. REED, et al.



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TURNER, et al.

v.

REED, et al.


September 17, 1999

Record No. 982588

 

MAZZIE TURNER, ET AL.

v.

MARK N. REED, EXECUTOR, ETC., ET AL.

 

FROM THE CIRCUIT COURT OF PAGE COUNTY

Porter R. Graves, Jr., Judge

Present: Carrico, C.J., Compton, Lacy, Hassell,
Koontz, and Kinser, JJ., and Poff, Senior Justice

OPINION BY SENIOR JUSTICE RICHARD H. POFF


The principal issue in this appeal is whether
the chancellor erred in construing the term "personal
property", as used in a testamentary bequest, to include
only tangible personal property.

In the second paragraph of her will, Kathleen
R. Waye made monetary bequests to six beneficiaries. The portion
of the second paragraph relevant to the ruling challenged in this
appeal provides as follows:

"I give, devise and bequeath unto my
friends, MAZZIE TURNER and LOIS SOMERS [now Lois Jarriel], my
residence . . . and all of the furniture and
personal property located in and about said residence, along
with any automobile which I may own at the time of my death,
to be held by them as joint tenants with the right of
survivorship."

In the third paragraph, the testatrix divided
the residue of her estate equally among four beneficiaries. Mark
N. Reed, the drafter of the will, qualified as executor of the
estate and posted bond in the sum of $1,150,000.00. An inventory
of personal property "located at Mrs. Waye’s residence
. . . at the time of her death" included stock
certificates and travelers checks valued by the executor as
having "a fair market value of approximately
$134,543.99."

In his bill of complaint seeking construction
of the will, the executor contended that "under a proper
interpretation . . . those stock certificates and
[t]ravelers checks are part of the residuary portion of Mrs.
Waye’s Estate, and as such would pass to the residuary
beneficiaries and not the [r]espondents, Mazzie Turner and Lois
Jarriel." Citing this Court’s decision in Bowles v.
Kinsey
, 246 Va. 298, 435 S.E.2d 129 (1993), Turner and
Jarriel contended that "the term ‘personal property’ is a
term of art and embraces both intangible and tangible
personalty."

The chancellor agreed with the executor’s
argument that "the facts in Bowles v. Kinsey, are
distinguishable from those of this case" and entered a final
decree construing the disputed language as limited to a bequest
of tangible personal property. We agree with the chancellor’s
conclusions.

We consider this issue in the context of
certain well-settled principles. As we said in Bowles,
"[t]he paramount rule of will construction is that the
intention of the testator controls, unless such intent is
contrary to an established principle of law." 246 Va. at
300, 435 S.E.2d at 130. "The primary consideration and rule
of construction is to determine the intention of the testator
from the language which he has used." Penick v. Walker,
125 Va. 274, 278, 99 S.E. 559, 560 (1919); accord Coffman v.
Coffman
, 131 Va. 456, 463, 109 S.E. 454, 457 (1921).
"This intention, gathered from the whole will, must
predominate over all technical words and expressions." James
v. Peoples National Bank
, 178 Va. 398, 404, 17 S.E.2d 387,
389 (1941). "Technical rules of construction are not to be
invoked to defeat the intention of the maker of the instrument,
when his or her intention clearly appears by giving to the words
used their natural and ordinary import." Horne v. Horne,
181 Va. 685, 691, 26 S.E.2d 80, 83-84 (1943); accord Walton v.
Melton
, 184 Va. 111, 115-16, 34 S.E.2d 129, 130 (1945).

In Bowles, this Court said that
"[s]ince the term ‘personal property’ is a technical term,
the testatrix generally is presumed to have used that term
in its technical sense." Bowles, 246 Va. at 301, 435
S.E.2d at 130 (emphasis added). Under the facts of that case, in
which the testatrix disposed of "all my personal
property", we concluded that the term "personal
property" included both tangible and intangible forms of
property. Id.

We used the word "generally" in Bowles
to qualify the rule that use of a technical term is an absolute
definition of testamentary intent. In Bowles, the
testatrix used the word "all" in disposing of her
personal property. The word "all" means: "The
whole number or sum [when] used collectively with a plural noun
or pronoun expressing an aggregate." Blacks Law Dictionary
74 (6th ed. 1990). Thus, the general rule stated in Bowles
was applicable in that case because the testatrix defined her
bequest in language consonant with the definition of the
technical term and because she used no language elsewhere in her
will indicating a different testamentary intent.

Reaffirming the general rule stated in Bowles,
we hold that an exception to that rule applies here. In Bowles,
the word "all" defined the entire corpus of the
testatrix’s personal property, unqualified by kind or situs.
Here, that adjective defines only a select portion of the
testatrix’s personal property, that is, "furniture and
personal property" and only such property as was
"located in and about [her] residence". Thus, we share
the chancellor’s view that the testatrix’s intention in the
disputed portion of paragraph 2 was to limit her bequest to
tangible personal property located in the residence.

In a second assignment of error, Turner and
Jarriel say that the chancellor erred by considering the doctrine
of ejusdem generis in the course of his construction of
the language of the will. We disagree.

As we define that doctrine, in the construction
of legal instruments, when the listing of an item with a specific
meaning is followed by a word of general import, the general word
will not be construed to include things in its widest scope but
only those things of the same import as that of the specific item
listed. See Cape Henry Towers, Inc v. National Gypsum
Co.
, 229 Va. 596, 603, 331 S.E.2d 476, 481 (1985); Martin
v. Commonwealth
, 224 Va. 298, 301, 295 S.E.2d 890, 892
(1982); East Coast Freight Lines v. City of Richmond, 194
Va. 517, 525, 74 S.E.2d 283, 288 (1953); Rockingham Bureau v.
Harrisonburg
, 171 Va. 339, 344, 198 S.E. 908, 911 (1938).

Here, the specific items listed are
"furniture" and "automobile"; the general
term listed is "personal property". The widest scope of
that term includes intangible as well as tangible personal
property. But under the doctrine in issue, the general term
applies only to things of the same import as that of the specific
items listed, i.e., tangible personal property.

Finding no merit in the assignments of error,
we will affirm the final decree.

Affirmed.

 

The residuary beneficiaries were identified in
the third paragraph of the will as the Luray United Methodist
Church, the Luray Christian Church, Lynchburg College and the Odd
Fellows and Rebeccas Home of Virginia.

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