Sims v. Moore

• Citation: 288 Ala. 630,264 So.2d 484
• Decision Date: 29 June 1972
• Docket Number: 1 Div. 705
• Parties: Leslie Lee SIMS, as Executor of the Estate of Leslie W. Moore, Deceased v. John L. MOORE, et al. and 705-X.
• Court: Supreme Court of Alabama

Page 484

264 So.2d 484

288 Ala. 630

Leslie Lee SIMS, as Executor of the Estate of Leslie W. Moore, Deceased v. John L. MOORE, et al.

1 Div. 705 and 705-X.

Supreme Court of Alabama.

June 29, 1972.

Nettles & Cox, Mobile, for appellant and cross-appellee.

Sam W. Pipes, III, Mobile, for appellee and cross-appellant John L. Moore.

J. Edwards Thornton, Mobile, for appellees and cross-appellants Pearl M. Couch and Maysie M. Henley.

McCALL, Justice.

This litigation involves the contest of two items of an account, between Leslie Lee Sims, as executor (Sims), and the estate of his decedent, Leslie W. Moore, filed on petition for a final settlement of Sims' administration in the Probate Court of Mobile County, Alabama. The contest was made by three of the testator's heirs at law and next of kin (heirs).

The heirs' contest is that the testator did not bequeath the two items of the account to Sims, as he contends, and there being no general residuary clause in the testator's will, the proceeds of these items decend to his heirs under the laws of decent and distribution.

So much of the decedent's will as needs to considered in order to decide the two issues here involved reads as follows:

"ITEM ONE

"I direct that all of my just debts, funeral and burial expenses be paid as soon as practicable after my death, by my Executor, out of the property and assets which I GIVE, DEVISE and BEQUEATH to him.

"I further direct that my said Executor shall pay all the estate taxes and the expense of administering my estate out of that part of my estate which I GIVE.

DEVISE and BEQUEATH to him.

"ITEM TWO

"I GIVE, DEVISE and BEQUEATH to my nephew, Leslie Lee Sims, whom I appoint as Executor of the Will, all of the following described personal and real property of which I may die seized or possess at the time of my death. Out of this property, he shall pay all of my debts, estate taxes and the cost of administering my estate so that the property hereinafter DEVISED and BEQUEATHED to others may be free from the charge for the payment of said items.

"My home in Mobile, Alabama, located at 1806 Springhill Avenue and all contents including all out houses and contents, garage and automobile if I should die at my death, all of my personal belongings including all bank accounts both savings and checking, also all bonds and stocks;

"My summer home located on the Bay Front between Magnolia Beach and Sweet Water Branch, Mrs. Elliot now lives on the North side and Mrs. Bessie Bales on the South, in the Overton Track. This will include all contents of the house and all buildings on said lot garage, servent house, pump house and tool room and shed;

"And other property as described below:

"* * * 132 acres, more or less bound on the North by Grant Street Road and on the South by Cottage Hill Road."

In addition to cash in a savings account with First Federal Savings and Loan Association of Mobile, at his death the testator had considerable amounts of cash in bank accounts, both savings and checking, in four different banks in Mobile, the First National Bank of Rochester, Minnesota, and the Bank of Shubuta, Mississippi. There were no accounts with other savings and loan associations.

The heirs insist that the legacy of "all of my personal belongings including all bank accounts both savings and checking, also all bonds and stocks" does not include the savings account in the savings and loan association. A construction of the will is necessary to determine what was the intention of the testator in this particular.

Though contained in the same paragraph of Item Two of the will, we do not consider the bequest of "all of my personal belongings" as being influenced by the gift of the home and all contents at 1806 Springhill Avenue, because the two gifts are separated by the bequest of "garage and automobile if I should own one at my death" and also because the testator's language "including all bank accounts both savings and checking," shows that the testator had in mind personal property of his located elsewhere than at his home, viz., in banking houses.

Standing alone and uninfluenced by a following enumeration, the general words "all of my personal belongings" have a most comprehensive meaning. In ordinary parlance of familiar use by lay, as well as professional, persons, the term "personal property" includes in its signification money, goods, chattels, etc. In re Bruckman's Estate, 195 Pa. 363, 368, 45 A. 1078; Underhill's Law of Wills, § 308 and citations made in note 5 therto; Bromberg v. McArdle, 172 Ala. 270, 55 So. 805, and the term also includes choses in action. Wilson v. Witt, 215 Ala. 685, 687, 112 So. 222; Boyd v. Selma, 96 Ala. 144, 11 So. 393; Enzor v. Hurt, 76 Ala. 595.

We think "all of my personal belongings" is tantamount, in the instant case, to saying "all of my personal property." Both terms have a broad and comprehensive meaning, sufficient to include money on deposit whether in a bank or in a savings and loan association account. Ford v. Wade, 242 Ky. 18, 45 S.W.2d 818; Goggans v. Simmons, Tex.Civ.App., 319 S.W.2d 442 (Ref. N.R.E.).

The heirs say, however, that the rule, doctrine or principle ejusdem generis applies in this case and works a limitation. Ejusdem generis is a rule that may be utilized in proper instances to restrict the general terms of a bequest by association with words of a narrower import. This rule of law is oftentimes applied as an aid to arrive at the intention of the maker of a will or other instrument where ambiguity exists. In Merchants' National Bank v Hubbard, 220 Ala. 372, 375, 125 So. 335, 336, we said:

"* * * If the terms employed warrant, they may be aided by the rule ejusdem generis, which ordinarily limits the meaning of general words and things to the class or enumeration employed. * * *"

The prime objective in the construction of any will is to fathom out and reach the testator's true intention, Ralls v. Johnson, 200 Ala. 178, 75 So. 926; Rutland v. Emanuel, 202 Ala. 269, 80 So. 107; Sewell v. Byars,271 Ala. 148, 122 So.2d 398; Curlee v. Wadsworth, 273 Ala. 196, 136 So.2d 886; Weil v. Converse, 273 Ala. 495, 142 So.2d 245, and, in so doing the cardinal rule is to give the will effect in all its particulars, if that can be done, consistent with the rules of law and public policy.

"* * * (I)n the construction of doubtful clauses in a will, that interpretation is to be adopted if possible which avoids a partial intestacy, unless it clearly appears that the testator intended to die intestate as to part of his property. * * *" 28 R.C.L. 227, § 189 citing numerous cases; 57 Am.Jur., Wills, § 1158, pp. 754-55.

"* * * (G)enerally comprehensive terms of property ought to receive their full operation (unless clearly modified by the context), particularly where to apply the rule ejusdem generis would produce a partial intestacy because of the absence of a residuary clause. * * *" Underhill on the Law of Wills, Vol. 1, § 307, p. 413.

And, in Bromberg v. McArdle, 172 Ala. 270, 55 So. 805, the court, with respect to the rule ejusdem generis and its application, said that the intention of the testator, to be ascertained from the whole instrument, will not suffer sacrifice by adherence, notwithstanding, to the rule stated and the rule must and does yield to the testator's intent gathered from the whole instrument, citing Schouler on Wills, § 514; 1 Jarman on Wills, 759.

The heirs argue that "including all bank accounts both savings and checking" are words of limitation upon the phrase "all of my personal belongings," narrowing its meaning under the ejusdem generis rule to things of the same kind, namely, "bank accounts both savings and checking, also all bonds and stocks,' and, since a savings and loan account is not a bank account, such account is not included.

Contrary to this argument "including" is not to be regarded as limitational or restrictive, but merely as a particular specification of something to be included or to constitute a part of some other thing, that is, part of "all of my personal belongings." Achelis v. Musgrove, 212 Ala. 47, 50, 101 So. 670. "Including" is not a word of limitation, rather it is a word or enlargement, and in ordinary significance also may imply that something else has been given beyond the general language which precedes it. Achelis v. Musgrove, supra. Here that something else means "bank accounts."

In drawing an analogy, between commercial bank savings accounts and savings accounts in savings and loan associations, where a statute excepted, from taxation, property, held in joint tenancy "bank accounts," the court in Colorado v. Becker, 159 Colo. 562, 413 P.2d 185, said:

"For the purpose of receiving, safeguarding and disposing of he monies entrusted to it by the depositors, the functions of the savings and loan company are so closely parallel with those of a 'commercial' bank that we have no hesitancy in holding that depostis in a savings and loan association, for the purpose of this statute, are within the meaning of the term 'bank account'. We see nothing in comparing these two accounts which would indicate to us that the Legislature intended to distinguish between savings depostis in a 'commercial' bank and those in a savings and loan institution for the purpose of determining the taxable interest which passed."

Generally, deposits in both institutions have the same characteristics.

There is no evidence in the record in this case that the savings account in the savings and loan association is any different, in respects here material, from those accounts in the commercial banks. The fact that the testator applied for a membership and savings account in the association, and that he authorized it by proxy to act for him, of which there was evidence, does not in our opinion differentiate a savings account in that institution from a savings account in the commercial banks. For all practical purposes both types of savings accounts represent a deposit of...