MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
In the month of February, 1918, Archibald Everett Spriggs executed a will in this language:
“In the Name of God, Amen: I, Archibald Everett Spriggs, being of sound mind and memory, but knowing the uncertainty of human life, do now make and publish this my last will and testament, that is to say: First, I hereby give, devise and bequeath all of my goods, chattels and effects to my duly wedded wife, Josephine Spriggs and I hereby nominate my said wife executrix to serve without the giving of bonds of any kind. This is my only will up to this date. Archibald Everett Spriggs.” An attestation clause with date of the will followed.
Mr. Spriggs had been married to Josephine, his wife mentioned in the will, for seven years. No children were born of the union. Jabez and Isabella Spriggs, Mr. Spriggs’ father and mother, were then living in Kansas upon their farm. In former years Mr. Spriggs had been generous to his parents but after his marriage he did not support them because he “felt they were comfortable.” When the petition for distribution was heard the parents were bedridden and ill. They were then living with their son, Harvey Spriggs, a wealthy farmer. The testator died July 18, 1921. At the time of his death his estate consisted of cash, Liberty Bonds, promissory notes, shares of stock in mining and oil companies, and real estate consisting of a ranch in Broadwater county, lots' in Townsend, and some mining claims.
In due time the will was admitted, to probate. Letters testamentary were issued to Josephine L. Spriggs, the widow. Thereafter a proceeding designed to construe the will found its way to this court. (In re Spriggs’ Estate, 68 Mont. 92, 216 Pac. 1108.) That proceeding having been dismissed pursuant to this court’s direction, the executrix filed her petition for final distribution of the estate, in which she asked to have the entire property distributed to her. Thereupon Mr. Spriggs’ [274]*274father and mother filed their objections to the petition, claiming that nnder the will the testator disposed of his personal property only and consequently the title to the real estate passed by succession one-half to the widow and the other half to themselves in accordance with the statutes of this state. After a hearing the court entered its decree distributing all of the personal property and one-half of the real estate to Josephine L. Spriggs and the other one-half of the real estate to the parents. From this decree Josephine L. Spriggs as widow, executrix, and as devisee and beneficiary under the will, has appealed.
By the terms employed in the will did the testator manifest his intention to dispose of his personal property only?
By the provisions of section 7016, Revised Codes of 1921, a will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible. The next section (7017) says: “In cases of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.”
The words of a will are to be taken in their ordinary and grammatical sense unless a clear intention to use them in another sense can be collected and that other can be ascertained. (See. 7023.) The words are to receive an interpretation which will give to their expressions some effect, rather than one which will render any of the expressions inoperative. (Sec. 7024.)
If the testator had said, “I hereby give, devise and bequeath all of my goods,” or “all of my goods and chattels,” then his intention to dispose of his personal property only would be manifest. Why did he add the word “effects”? If he intended to dispose of his personal property only, that word did not add anything to “goods, chattels.” Is the word then mere surplusage? If he had said, “I hereby give, devise and bequeath everything to my wife,” there would be no doubt about [275]*275it; and if he had said, “I hereby give, devise and bequeath all my effects,” it would seem clear that he intended to leave everything to his wife.
It is a well-known canon of construction that every word in a will should be given effect if possible; this the statute recognizes. When one makes a will, the natural and reasonable presumption is that he intends to dispose of his entire estate. (24 R. C. L. 227.) The rule is thus stated in Gourley v. Thompson, 2 Sneed (Tenn.), 387: “The law presumes that a man who undertakes to make a will does not intend to die intestate as to any of his property. The courts have always, in conformity to this principle, construed wills so as to embrace all the testator’s property, if the words used, by any fair interpretation, or allowable implication, will embrace it.”
Another rule declared by the unanimous voice of the courts— at least we have not seen any decision to the contrary— is that in the construction of a will that interpretation is to be adopted if possible which will prevent a partial intestacy. (24 R. C. R. 228, and cases cited.) “Constructions which lead to intestacy, total or partial, are not favored; and, therefore, such an interpretation should, if reasonably possible, be placed upon the provisions of the will as will prevent that result.” (Mr. Justice Van Fleet in Le Breton v. Cook, 107 Cal. 410, 40 Pac. 552.)
Here we note section 7025, Revised Codes of 1921, which provides: “Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.” By this declaration may it be inferred upon the doctrine that the expression of one thing is the exclusion of the other, that while the law looks with disfavor upon a construction which will prevent total intestacy, it does not look with any disfavor upon a construction which will result in a partial intestacy ? A negative answer is compelled. The section first appeared in Field’s Code. The citation given by Mr. Field thereunder is Booth v. Booth, 4 Ves. Ch. Rep. 407. But we find on that page this [276]*276language: “Every intendment is to be made against holding a man to die intestate who sits down to dispose of the residue of his property,” and nothing in the decision to the contrary. California adopted the section in 1872 (Civ. Code, sec. 1326); Montana in 1877. We took the section from California. Yet the California courts have followed the rule announced in Le Breton v. Cook, supra, without deviation, sometimes citing the statute. (Toland v. Toland, 123 Cal. 140, 55 Pac. 681; Estate of Young, 123 Cal. 337, 55 Pac. 1011; O’Connor v. Murphy, 147 Cal. 148, 81 Pac. 406; Estate of Heberle, 153 Cal. 275, 95 Pac. 41; Estate of Henderson, 161 Cal. 353, 119 Pac. 496; Estate of Gregory, 12 Cal. App. 309, 107 Pac. 566.)
How is the conclusion reached that the testator intended partial intestacy? Simply by construing the word “effects” to be equivalent to “goods” and “chattels.”
It clarifies the situation somewhat to give its local color. At the time the will was made Mr. Spriggs, with some others, twenty or more, were taking degrees in a secret society in the city of Helena. According to the rules of the society, before proceeding in a certain degree it was necessary for them to make wills.
Free access — add to your briefcase to read the full text and ask questions with AI
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
In the month of February, 1918, Archibald Everett Spriggs executed a will in this language:
“In the Name of God, Amen: I, Archibald Everett Spriggs, being of sound mind and memory, but knowing the uncertainty of human life, do now make and publish this my last will and testament, that is to say: First, I hereby give, devise and bequeath all of my goods, chattels and effects to my duly wedded wife, Josephine Spriggs and I hereby nominate my said wife executrix to serve without the giving of bonds of any kind. This is my only will up to this date. Archibald Everett Spriggs.” An attestation clause with date of the will followed.
Mr. Spriggs had been married to Josephine, his wife mentioned in the will, for seven years. No children were born of the union. Jabez and Isabella Spriggs, Mr. Spriggs’ father and mother, were then living in Kansas upon their farm. In former years Mr. Spriggs had been generous to his parents but after his marriage he did not support them because he “felt they were comfortable.” When the petition for distribution was heard the parents were bedridden and ill. They were then living with their son, Harvey Spriggs, a wealthy farmer. The testator died July 18, 1921. At the time of his death his estate consisted of cash, Liberty Bonds, promissory notes, shares of stock in mining and oil companies, and real estate consisting of a ranch in Broadwater county, lots' in Townsend, and some mining claims.
In due time the will was admitted, to probate. Letters testamentary were issued to Josephine L. Spriggs, the widow. Thereafter a proceeding designed to construe the will found its way to this court. (In re Spriggs’ Estate, 68 Mont. 92, 216 Pac. 1108.) That proceeding having been dismissed pursuant to this court’s direction, the executrix filed her petition for final distribution of the estate, in which she asked to have the entire property distributed to her. Thereupon Mr. Spriggs’ [274]*274father and mother filed their objections to the petition, claiming that nnder the will the testator disposed of his personal property only and consequently the title to the real estate passed by succession one-half to the widow and the other half to themselves in accordance with the statutes of this state. After a hearing the court entered its decree distributing all of the personal property and one-half of the real estate to Josephine L. Spriggs and the other one-half of the real estate to the parents. From this decree Josephine L. Spriggs as widow, executrix, and as devisee and beneficiary under the will, has appealed.
By the terms employed in the will did the testator manifest his intention to dispose of his personal property only?
By the provisions of section 7016, Revised Codes of 1921, a will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible. The next section (7017) says: “In cases of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.”
The words of a will are to be taken in their ordinary and grammatical sense unless a clear intention to use them in another sense can be collected and that other can be ascertained. (See. 7023.) The words are to receive an interpretation which will give to their expressions some effect, rather than one which will render any of the expressions inoperative. (Sec. 7024.)
If the testator had said, “I hereby give, devise and bequeath all of my goods,” or “all of my goods and chattels,” then his intention to dispose of his personal property only would be manifest. Why did he add the word “effects”? If he intended to dispose of his personal property only, that word did not add anything to “goods, chattels.” Is the word then mere surplusage? If he had said, “I hereby give, devise and bequeath everything to my wife,” there would be no doubt about [275]*275it; and if he had said, “I hereby give, devise and bequeath all my effects,” it would seem clear that he intended to leave everything to his wife.
It is a well-known canon of construction that every word in a will should be given effect if possible; this the statute recognizes. When one makes a will, the natural and reasonable presumption is that he intends to dispose of his entire estate. (24 R. C. L. 227.) The rule is thus stated in Gourley v. Thompson, 2 Sneed (Tenn.), 387: “The law presumes that a man who undertakes to make a will does not intend to die intestate as to any of his property. The courts have always, in conformity to this principle, construed wills so as to embrace all the testator’s property, if the words used, by any fair interpretation, or allowable implication, will embrace it.”
Another rule declared by the unanimous voice of the courts— at least we have not seen any decision to the contrary— is that in the construction of a will that interpretation is to be adopted if possible which will prevent a partial intestacy. (24 R. C. R. 228, and cases cited.) “Constructions which lead to intestacy, total or partial, are not favored; and, therefore, such an interpretation should, if reasonably possible, be placed upon the provisions of the will as will prevent that result.” (Mr. Justice Van Fleet in Le Breton v. Cook, 107 Cal. 410, 40 Pac. 552.)
Here we note section 7025, Revised Codes of 1921, which provides: “Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.” By this declaration may it be inferred upon the doctrine that the expression of one thing is the exclusion of the other, that while the law looks with disfavor upon a construction which will prevent total intestacy, it does not look with any disfavor upon a construction which will result in a partial intestacy ? A negative answer is compelled. The section first appeared in Field’s Code. The citation given by Mr. Field thereunder is Booth v. Booth, 4 Ves. Ch. Rep. 407. But we find on that page this [276]*276language: “Every intendment is to be made against holding a man to die intestate who sits down to dispose of the residue of his property,” and nothing in the decision to the contrary. California adopted the section in 1872 (Civ. Code, sec. 1326); Montana in 1877. We took the section from California. Yet the California courts have followed the rule announced in Le Breton v. Cook, supra, without deviation, sometimes citing the statute. (Toland v. Toland, 123 Cal. 140, 55 Pac. 681; Estate of Young, 123 Cal. 337, 55 Pac. 1011; O’Connor v. Murphy, 147 Cal. 148, 81 Pac. 406; Estate of Heberle, 153 Cal. 275, 95 Pac. 41; Estate of Henderson, 161 Cal. 353, 119 Pac. 496; Estate of Gregory, 12 Cal. App. 309, 107 Pac. 566.)
How is the conclusion reached that the testator intended partial intestacy? Simply by construing the word “effects” to be equivalent to “goods” and “chattels.”
It clarifies the situation somewhat to give its local color. At the time the will was made Mr. Spriggs, with some others, twenty or more, were taking degrees in a secret society in the city of Helena. According to the rules of the society, before proceeding in a certain degree it was necessary for them to make wills. For this purpose the candidates were seated about a large table. It was explained to them by the gentleman in whose charge they were that the requirement was of a serious nature. He said the wills they were about to make would be valid and, unless revoked, in case of death would be entitled to probate. Mr. Spriggs was a man of more than ordinary ability, “an able, capable man, possessed of a clear mind”; he had been Lieutenant Governor of Montana and had had an extensive business experience. Being assured that the requirement was serious, which at first he was inclined to doubt, ha proceeded to write out the will. It is plain enough that the conditions surrounding the making of this will were not ideal for the execution of a document of so much importance, one usually attended with feelings of gravity and solemnity. The situation did not afford that deliberation which is ordinarily con[277]*277sidered necessary when one is engaged upon a transaction of unusual importance, which making a will is.
What do these conditions tell us, if anything, respecting the testator’s intention? He was not in duty bound to mention his parents. To be sure, they were his heirs at law, entitled to inherit in the absence of a will. But they do not stand in the position of a child not mentioned. Are we to presume that he forgot the existence of his parents? Or, that he did not intend to recognize them? A reasonable answer is that it is not to be deemed probable that a man of Mr. Spriggs’ mental equipment forgot the existence of his father and mother, nor that he purposed to leave his real estate undisposed of. If he used the words “goods, chattels and effects” designedly to dispose of his personal property only, then by design he left the disposition of his real property in such a state of uncertainty by the language used that as a reasonable man he must have foreseen the probability of family strife over it. He must have known that whether he intended to dispose of the real estate would be a subject of controversy which might result in a lawsuit between his widow and his parents. If he did this designedly we must attribute to him the subtlety of that old serpent the Bible tells us about. We think, the circumstances and language of the will considered, he did not intend any such result.
The question arises whether any special signfieance is to be given the word “devise.” Properly used the term is restricted to real property. (Black’s Law Dictionary.) Corpus Juris says: “In legal parlance it has a well-defined meaning, usually employed to denote a gift, by a person’s last will and testament, of real estate or an interest therein.” (18 C. J. 1033.) However it must be conceded that from the use of the word alone it is not to be assumed that the testator had his real estate in mind, for the word is used often synonymously with “bequeath” in disposing of personal property only (Sehouler on Wills, see. 513); but when all the words [278]*278of the will are taken together certainly the implication is warranted that real as well as personal property was in contemplation.
It is true that the word “effects,” as generally employed by the lexicographers, includes only personal estate, goods, movables and chattel property, and such undoubtedly is its technical meaning; but we find the following in Webster’s International Dictionary, defining “effects”: “Goods; movables; personal estate; as: The people escaped from the town with their effects; sometimes used to embrace real as well as personal property.” The Century Dictionary defining the word, says: “Goods; movables; personal estate. In law (a) property; whatever can be turned into money; (b) personal property.”
If Governor Spriggs, a layman, had read the foregoing definitions he might have thought the word “effects” sufficient to embrace his real estate. Or, if he had read what Corpus Juris says he might have deemed that word sufficient for his purpose: “The word is a very general term, and is used to denote whatever a man has that can effect, produce, or bring forth money by sale. In its broadest sense it is defined to be property or worldly substance; whatever can be termed of value. As thus used it denotes property in a more extensive sense than goods. Indeed the word may be used to embrace every bind of property, real and personal, including things in action, land, tenements, etc., and everything which is subject 'to the laws of property and ownership, whether real or personal, including things in action, land, tenements,” etc. (19 C. J. 1017.) In support of the text the following cases with others are cited: Adams v. Akerlund, 168 Ill. 632, 48 N. E. 454; Ruckle v. Grafflin, 86 Md. 627, 39 Atl. 624; Horton v. Garrison, 1 Tex. Civ. App. 31, 20 S. W. 773; In re Stixrud’s Estate, 58 Wash. 339, Ann. Cas. 1912A, 850, 33 L. R. A. (n. s.) 632, 109 Pac. 343. And see Andrews v. Applegate, 223 Ill. 535, 7 Ann. Cas. 126, 12 L. R. A. (n. s.) 661, 79 N. E. 176; 1 Alexander on Wills, 34.
[279]*279The latest case we have found bearing on the subject is Coffman’s Admr. v. Coffman, 131 Va. 456, 109 S. E. 454. In that case the testator gave to his wife his entire interest in a farm which they two owned in common, and certain personal property, for life. He then gave a legacy to each of two nieces to be paid after his wife’s death, and concluded: “The remainder of my effects I leave with my wife to dispose of as she thinks proper.” He left no children. After the testator’s death his sisters and brothers, his heirs at law, claimed he had died intestate as to certain of his real estate and personal property, and the trial court so decided. The supreme court of appeals said: “But it is said, and the lower court expressly so held, that the word ‘effects’ does not embrace real estate. We do not take this view of the case. The general rule is that effects means personal property, but that depends on the context, the subject matter and the circumstances.” After some discussion the court concluded that phase of the case by saying: “We have no doubt that the testator, by the general and sweeping residuary clause, intended to give the widow everything he had, except the one thousand dollars given to her nieces; and this, we think, under the circumstances, may fairly be said to be the meaning of the words used by him. ’ ’
So here we are constrained to think that the testator, situated as he was, took the simplest phrase that came into his mind to give everything to his wife. To be sure he might have used fewer words, free from any possible ambiguity. And he might by words have given one-half of his real estate to his parents if he had any such intention. All things considered, from the words of the will itself, we are not in doubt. We hold the testator intended to make a will disposing of all he had; that he did not intend to die partially intestate; that he intended his wife to be his sole legatee and devisee.
The judgment is reversed and the cause remanded. The district court is directed to enter a decree distributing the [280]*280-real estate as well as the personal property of the estate to Josephine L. Spriggs, the widow.
Remanded, with directions.
Associate Justices Cooper, Holloway and Galen concur.