Reitz' Estate, In re, 47128

• Decision Date: 08 December 1973
• Docket Number: No. 47128,47128
• Citation: 516 P.2d 909,213 Kan. 534
• Parties: In the Matter of the ESTATE of Carl H. REITZ, Deceased. Nell Ann DEL CARLO, Legatee, Appellant, v. Norman M. RANKIN, Executor, et al., Appellees.
• Court: Kansas Supreme Court

Page 909

516 P.2d 909

213 Kan. 534

In the Matter of the ESTATE of Carl H. REITZ, Deceased.

Nell Ann DEL CARLO, Legatee, Appellant, v. Norman M. RANKIN, Executor, et al., Appellees.

No. 47128.

Supreme Court of Kansas.

Dec. 8, 1973.

Rehearing Denied Jan. 3, 1974.

Syllabus by the Court

1. When used in a will the unqualified term 'personal effects' ordinarily means such tangible personal property as is worn or carried about the person or has some intimate relation to the person.

2. In the absence of some indication of a contrary intent a bequest of the testator's 'personal effects's does not include a certificate of deposit.

3. Where the testator's intent as gathered from his will as a whole is to leave his entire estate to his grandchildren except for a bequest of his personal effects to his daughter, the bequest to the daughter does not include a certificate of deposit.

John T. Flannagan, of Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellant.

Bernis G. Terry, guardian ad litem, Olathe, argued the cause, and James H. Bradley, Olathe, was with him on the brief for appellees.

FOTH, Commissioner:

This is an action to construe a will. The issue is whether a bequest of 'personal effects' carries with it a $5,000 bank certificate of deposit.

The testator, Dr. Carl H. Reitz, was survived by three daughters and a number of grandchildren, children of his daughters. His will, dated December 18, 1967, was rather short and simple: Article I directed payment of debts and funeral expenses; Article II gave his personal effects to his daughter Nell Ann Holt (now Nell Ann Del Carlo, the appellant here); Article III gave his residuary estate to his grandchildren; Article IV expressly disinherited his other two daughters; and Article V appointed an executor.

After Dr. Reitz's death his executor found the certificate of deposit in question in his safe deposit box, along with his coin collection and other papers. The certificate was dated February 10, 1967, was payable to the order of Dr. Reitz, and was unendorsed. Being uncertain whether the certificate passed to the daughter under Article II or to the grandchildren under Article III, the executor brought this action to resolve that question.

Article II provides:

'All my personal effects including but not limited to the following items: clothing, guns, hand tools (electric & otherwise), cameras, and coins & currency located in my apartment and in my safe deposit box at the Twin City State Bank, I give and bequeath to my daughter, Nell Ann Holt.'

The probate court held that this language did not cover the certificate of deposit, and that the certificate passed under the residuary clause. On reconsideration it reaffirmed that decision:

'6. That the said Certificate of Deposit is not 'coins and currency' or 'personal effects' either in common usage or definition nor is it included in any other descriptive language under said Article II so that it passed to Nell Ann Holt, now Del Carlo, thereunder.'

On appeal the district court reached the same result, and Mrs. Del Carlo has brought the case here.

In the district court the main thrust of appellant's argument appears to have been that the certificate was 'currency' within the meaning of that term in Article II of the will. The district court's decision was directed principally at that contention and-properly, we note-rejected it. The certificate represented an unconditional obligation of the bank, and being payable 'to the order of' Dr. Reitz was a negotiable instrument (K.S.A. 84-3-104(1)(c)). It would take a strained argument to bring the certificate within the commonly accepted meaning of the term 'currency.' Cf., 54 Am.Jur.2d, Money, § 11; 25 C.J.S. Currency, p. 42. No such argument is made in this court.

Here, the only question is whether the certificate was meant to be included within the general term 'personal effects.' On this question we fully agree with the probate court's answer, quoted above.

Although this court has not had...