Opinion
16421.
NOVEMBER 17, 1948.
Equitable petition. Before Judge Pharr. Fulton Superior Court. August 10, 1948.
Harris, Henson Spence, for plaintiff.
Powell, Goldstein, Frazer Murphy, James K. Rankin, and J. Littleton Glover, for defendant.
The words, "not including money, notes, choses in action and personalty of like kind," evidenced a testamentary intention that a gift of "my cedar chest, together with all its contents" would not pass to the beneficiary the particular property excepted from the gift.
No. 16421. NOVEMBER 17, 1948.
Mrs. Eugenia Knott Jeffreys filed suit in the Superior Court of Fulton County, Georgia, against Chas. S. Reid, as executor of the estate of Ella Griffith (succeeded by J. Littleton Glover, administrator de bonis non cum testamento annexo of the estate of Ella Griffith). She alleged: Ella Griffith died testate on May 24, 1946. Under the will of the deceased, the petitioner is entitled to certain savings certificates in the aggregate sum of $7600, together with interest accruals thereon; a passbook issued to the testatrix, evidencing a balance of $3000 on a checking account; $320 in United States currency; and certain other items of negligible value, located in a cedar chest in the bedroom of the home of the testatrix; and, as a special legacy, the sum of $400.
A copy of the will was attached to the petition and made a part thereof. In item 1, the testatrix provided for her burial and for markers to be placed at her grave and other graves, and in item 2, for the payment of any debts and funeral expenses. Items 3 to 11, inclusive, consisted of cash bequests to be paid certain named individuals, the first of such bequests being to the petitioner, in the sum of $400. (This item is not contested.) Item 12 required the executor to sell a certain house and lot and to pay over the net proceeds derived therefrom to named trustees for the benefit of Ramah Baptist Church. Item 13 recited that it was not the intention of the testatrix to render financial aid to the persons given cash bequests, but that she gave the enumerated sums "as tokens of " her "love and esteem." Item 14 bequeathed to certain persons personal property and effects therein described. Paragraph 3 of item 14 is as follows: "To Mrs. Eugenia Knott Jeffreys my cedar chest, together with all its contents; also a certain oil painting, painted by her mother and bearing her mother's name; also all of my jewelry, including my diamond ring and diamond and pearl pin, and all other items of jewelry owned by me at the time of my death, together with all of the remaining items of physical, personal property, and effects located in my home at Palmetto, Georgia, not hereinabove specifically given and bequeathed, including all of the balance of my furniture and furnishings, china and silver and books (not including money, notes, choses in action and personalty of like kind)." Item 15 contained the residuary clause, wherein the testatrix willed and bequeathed the remainder of her estate to her executor, directing him, after the payment of funeral expenses, debts, expenses of administration, and the special legacies, to pay over the remainder to the Georgia Baptist Children's home Inc.
The petitioner prayed for a decree requiring the defendant to assent to the legacies claimed by her, and that he be required to deliver this property to her. The court sustained demurrers, striking the claim of the petitioner to the savings certificates, the passbook evidencing a deposit in the name of the deceased, and the currency, found in the cedar chest after the death of the deceased, and directed the jury to return a verdict for the petitioner in the amount of the special legacy of $400, which was not contested.
The petitioner excepted pendente lite to the sustaining of the demurrers. Her motion for new trial, containing one special ground, assigning error on the exclusion of certain evidence, was overruled. The exception here is to the order sustaining the demurrers and to the judgment overruling the motion for new trial.
The right of the plaintiff in error to recover the savings certificates, the amount deposited in the bank and represented by a passbook, and the currency, rests upon the language in paragraph 3 of item 14 of the will: "To Mrs. Eugenia Knott Jeffreys my cedar chest, together with all its contents." The word "contents" is a word of comprehensive meaning, and the words, "my cedar chest, together with all its contents," standing alone, would appear to require the construction insisted upon by the plaintiff in error.
In the construction of wills, however, it has long been the rule that courts will look to the instrument as a whole to determine the intention of the testatrix, and not to a detached part of it. Cook v. Weaver, 12 Ga. 47; Brown v. Weaver, 28 Ga. 377; Rogers v. Highnote, 126 Ga. 740 ( 56 S.E. 93); Blakeman v. Harwell, 198 Ga. 165, 175 ( 31 S.E.2d 50); Linson v. Crapps, 204 Ga. 264 ( 49 S.E.2d 523). In the present case, while there are other provisions that might be considered in determining the intention of the testatrix, particularly the residuary clause in item 15, we need look no further than to the whole of the language in paragraph 3 of item 14. The testatrix did not in such paragraph, or elsewhere in the will, undertake to describe or indicate the property or contents of the cedar chest. Paragraph 3 of item 14 is one complete sentence, and at the conclusion, in parentheses, are the words, "not including money, notes, choses in action and personalty of like kind." Between the words giving the cedar chest and its contents and the words of limitation are other specified items, none of which were money, notes, choses in action, or personalty of like kind. The words of limitation at the conclusion of paragraph 3 of item 14 could relate to but one subject-matter, the contents of the cedar chest. It is most evident that the items claimed by the plaintiff in error were definitely excluded by the testatrix in her bequest to the plaintiff in error.
There is no necessity to resort to circumstantial evidence to ascertain the intention of the testatrix, where from the language of the will the asserted ambiguity does not exist.
The trial court did not err in sustaining the demurrers to the items claimed by the plaintiff in error under the language of paragraph 3 of item 14; and the parol evidence tending to show circumstances contrary to the plain language of the will was properly excluded. West v. Randle, 79 Ga. 28 ( 3 S.E. 454).
Judgment affirmed. All the Justices concur.