McCartney's Estate

61 Pa. D. & C. 112, 1947 Pa. Dist. & Cnty. Dec. LEXIS 344

• Court: Pennsylvania Orphans' Court, Philadelphia County
• Decided: November 24, 1947
• Docket: no. 599 of 1946
• Status: Published

Opinions

Van Dusen, P. J.,

— Testatrix gave to her brother, Harry W. Boyle, “my home, presently occupied by me at Orthodox and Pilling Streets, Frankford, Philadelphia, and the entire contents thereof, with the exception of wearing apparel and jewelry belonging to me”. In the home was a small safe which contained bonds of the United States of Brazil, certificates for registered stocks, insurance policies, bank books, coupons, real estate and mortgage papers, miscellaneous jewelry of no great .value, and $25 in gold coins. The auditing judge awarded the securities and cash found in the safe to Harry W. Boyle, and exceptions have been filed by the residuary legatees.

We adopt as an expression of our views the statement of Judge Klein in his recent adjudication of Estate of John Renner, deceased, no. 3733 of 1946:

“Normally, when used in its ordinary sense, the phrase, ‘contents of a home’ designates those items of personal property which convert an empty house into a home. It would include furniture, floor coverings, electrical appliances, pictures, articles of decoration, linens, kitchen and silverware, and other articles of similar character commonly used in maintaining a home. Usually the expression would not include cash, jewelry, choses in action or evidences of debt.

“Moreover, a distinction must be drawn between a gift of the contents of a small container, such as a safe or safe deposit box, a trunk, or a box, and a gift of the contents of a building. In the former case the word ‘contents’ should be construed in its broadest possible meaning, consistent with the existing circumstances. In situations, such as exist in the present case, in which contents of a home, business establishment, or other building are involved, the meaning of the word ‘contents’ should be restricted to its ordinary and common usage.”

The legacy in that case read “my home and garage at No. 1324 N. Marston Street, Philadelphia, together with the entire contents thereof including my pets and my flower garden absolutely.” The question concerned $10,300 in cash found in a small wooden tool box in the cellar, and it was held that this money did not come within the term “contents” of a “home”. This money constituted more than half of decedent’s estate and, if it was regarded as a specific bequest, there would not be enough left to pay money legacies, or any residue to set up a trust under the will. These circumstances deprive the decision of value as a precedent here; but we have adopted Judge Klein’s language as a statement of the applicable principle upon which we cannot improve.

This principle is well illustrated by the converse case of Cowan v. Cowan, 90 N. H. 198, 6 A. (2d) 179, in which the legacy was “my house . . . and contents of all kinds”. It was held that an automobile and tools in a garage which was part of the homestead were included.

The safe is unimportant. It might have contained silverware or other household articles of value. The case turns upon the nature of the items.

The expression “entire contents” is no more than “contents”. And the exclusion of wearing apparel and jewelry only shows that testatrix thought that they were or might be “contents”. The maxim ex-pressio unius est exclusio alterius means that where a general term ordinarily would include a number of particulars, the express inclusion of some particulars implies that the general term is to be confined to those particulars and the like. It is “ejusdem generis” differently expressed. It does not mean that the exclusion of particulars, which would ordinarily be included in the general term, enlarges its meaning, and brings in particulars which otherwise would not belong there.

The exceptions are sustained and the adjudication, as modified, is confirmed absolutely.

November 14, 1947.

McCartney’s Estate