In re Patterson's Estate

• Decision Date: 10 August 1943
• Docket Number: 8602.
• Parties: In re PATTERSON'S ESTATE. NELSON v. THOMPSON et al.
• Court: South Dakota Supreme Court

10 N.W.2d 754

69 S.D. 374

In re PATTERSON'S ESTATE.

NELSON v. THOMPSON et al.

No. 8602.

Supreme Court of South Dakota

August 10, 1943

Rehearing Denied Sept. 21, 1943.

Philip & Leedom, of Rapid City, for appellant.

John T. Milek, of Sturgis, for respondents.

WARREN Judge.

Mary Patterson died testate at Spearfish, South Dakota, in June 1941. She was possessed of a city home, household goods furnishings, diamonds, fur coat, clothing, and a Packard automobile; and, also, personal property consisting of monies and credits, amounting to approximately $20,000. In the course of the probate of her estate, the county court entered a partial decree of distribution. After entry of the order an appeal was taken to the circuit court and a judgment was entered, modifying and reversing the order of the county court, which had the effect of denying Hilma Nelson the personal property involved in this appeal. Hilma Nelson is here on appeal from the judgment of the circuit court. It would seem that the facts are not in dispute. The matter presented to us for decision on this appeal is whether the car, the jewelry, the fur coat and clothing passed to Hilma Nelson under certain provisions of testatrix's will which read:

"I give devise and bequeath unto my sister Hilma Nelson of Spearfish South Dakota, my home, said home being described as lots 7 and 8 in Block 32 of said city and all the household furnishings and articles therein.

"All the rest, residue and remainder of my property, whether real, personal or mixed or wherever situated of which I die seized or possessed, I give, devise and bequeath unto my brothers and sisters (naming them) share and share alike." ***

It will be observed that testatrix gives her home to Hilma Nelson and describes the home as consisting of certain lots in the city of Spearfish, South Dakota. This devise is coupled with a bequest which reads: "and all of the household furnishings and articles therein." We are called upon to determine the meaning and the intendment of the testatrix from the language employed above. There seems to be a dearth of authority as to the meaning of "household furnishings." Webster's New International Dictionary, Second Edition, defines "housefurnishings" as: "Furnishings for a house; specif., in the trade, small articles of household equipment such as kitchen utensils, lamps, etc." To us it seems that "household furnishings" is even a more expressive term than "housefurnishings" in depicting and describing articles of equipment, decorations and trappings used to make a dwelling house useful and convenient for living, sleeping and dining purposes. "Household furnishings" would seem to mean and include everything about the house that had been usually held and enjoyed therewith for the comfort and accommodation of the householder. In addition to "household furnishings" there is added "and articles therein." It will be observed that "and articles therein" is closely connected to "household furnishings." To us, it seems that the intention to be gathered would be equivalent to giving the term the meaning "household furnishings and household articles."

In drawing upon the authorities that seem to sustain our views that the jewelry, diamonds, fur coat, clothing, and a Packard automobile do not pass, by the language employed as "all of the household furnishings and articles therein," to Hilma Nelson, we cite: Brown et al. v. Edmonds et al., 5 S.D. 508, 59 N.W. 731; Richmond v. Rhode Island Hospital Trust Co., 46 R.I. 113, 125 A. 228; Succession of Sauvage, 140 La. 619, 73 So. 702, L.R.A.1917D, 426; Mathis v. Causey et al., 172 Ga. 868, 159 S.E. 240, 75 A.L.R. 111; In re Hemstreet's Will, 101 Misc. 340, 167 N.Y.S. 1016; Foxall v. McKenney et al., 9 Fed.Cas. page 645, No. 5,016, 3 Cranch C.C. 206, In re Kimball's Will, 20 R.I. 619, 40 A. 847; Gallagher et al. v. McKeague et al., 125 Wis. 116, 103 N.W. 233, 110 Am.St. 821; Old Colony Trust Co. et al. v. Hale, 302 Mass. 68, 18 N.E.2d 432, 120 A.L.R. 1207; In re Foster's Estate, 140 Misc. 341, 251 N.Y.S. 797; Ludwig v. Bungart, 33 Misc. 177, 67 N.Y.S. 177; In re Jones' Will, 128 Misc. 244, 218 N.Y.S. 380; Longueville v. Western Assur. Co., 51 Iowa 553, 2 N.W. 394, 33 Am.Rep. 146; Cf. Towns v. Pratt & Als., 33 N.H. 345, 66 Am. Dec. 726; In re Steimes' Estate, 150 Misc. 279, 270 N.Y.S. 339; In re DeLaney's Will, 133 A.D. 409, 117 N.Y.S. 838; In re Lippencott's Estate, 173 Pa. 368, 34 A. 58.

It seems to be a well settled rule of law that it is not within the province of the court to say, in examining the terms of a will, what the testatrix intended but what is the meaning to be given to the language that she used. The word "furnishings" standing alone seems to have been sparingly used in cases construing wills. It is, however, used in connection with other words having a more limited or restricted meaning. However, as pointed out in many of the cases, the construction to be put upon the word "furnishings" depends upon the facts of each particular case. A short review of the following cases seems helpful in the determination of the language employed by the testatrix, "all of the household furnishings and articles therein."

In Brown et al. v. Edmonds et al., 5 S.D. 508, 59 N.W. 731, this court in dealing with a matter on execution and the claiming of exemptions, under the statute, of certain personal property held that a watch and chain habitually carried upon the person of debtor for his own convenience and not used by the household or for the benefit or comfort of the family is not exempt as "household furniture."

In re Kimball's Will, 20 R.I. 619, 40 A. 847, the court held that a lapsed legacy of testator's watch chain, clothing, and certain jewelry does not fall within a residuary clause embracing household goods and effects including books, pictures, furniture, and the like.

In Ludwig v Bungart, supra [33 Misc. 177, 67 N.Y.S. 178], the court said, and we quote: "Coming therefore to a construction of the will, it appears to be quite frivolous to claim that the words of the testator giving to the plaintiff 'all my household furniture and store with contents of house,' could include the money the testator might happen to have by her in the house at the time of her death, or the jewelry and two watches, relics of her dead husband and son; and unreasonable to keep the surrogate from a proceeding to distribute the estate pending the trial of such a question in this court, when he could determine it himself. The unnecessary cost to the estate is also regrettable. Money is not classed as part of the 'furniture' and 'contents' of a house. Neither are watches and jewelry...