Turner v. Reed, Record No. 982588.

• Decision Date: 17 September 1999
• Docket Number: Record No. 982588.
• Citation: 258 Va. 406,518 S.E.2d 832
• Parties: Mazzie TURNER, et al. v. Mark N. REED, Executor, etc., et al.
• Court: Virginia Supreme Court

518 S.E.2d 832

258 Va. 406

Mazzie TURNER, et al. v. Mark N. REED, Executor, etc., et al.

Record No. 982588.

Supreme Court of Virginia.

September 17, 1999.

George W. Shanks, Luray, for appellants. W. Dale Houff (Swetnam & Houff, on brief), Luray, for appellees Mark N. Reed, Executor of the Estate of Kathleen R. Waye and Luray United Methodist Church.

No brief or argument on behalf of appellee Lynchburg College.

Present: CARRICO, C.J., COMPTON, LACY, HASSELL, KOONTZ, and KINSER, JJ., and POFF, Senior Justice.

POFF, Senior Justice.

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.¹ 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's Ex'r v. Walker, 125 Va. 274, 278, 99 S.E. 559, 560 (1919); accord Coffman's Adm'r 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 ...