{ "id": 8555072, "name": "HAROLD ADLER v. FIRST-CITIZENS BANK AND TRUST COMPANY, Executor of the Last Will and Testament of MILTON SIDNEY ADLER; WOLFE THOMAS ADLER, Minor; JUDITH RACHAEL ADLER, Minor; and OTHO L. GRAHAM, Guardian ad Litem for WOLFE THOMAS ADLER and JUDITH RACHAEL ADLER", "name_abbreviation": "Adler v. First-Citizens Bank & Trust Co.", "decision_date": "1969-05-28", "docket_number": "No. 693SC166", "first_page": "600", "last_page": "606", "citations": [ { "type": "official", "cite": "4 N.C. App. 600" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "89 S.E. 2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619022 ], "opinion_index": 0, "case_paths": [ "/nc/242/0566-01" ] }, { "cite": "247 N.Y.S. 584", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "139 Misc. 5", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 807478 ], "opinion_index": 0, "case_paths": [ "/misc/139/0005-01" ] }, { "cite": "218 N.Y.S. 380", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "128 Misc. 244", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 774400 ], "opinion_index": 0, "case_paths": [ "/misc/128/0244-01" ] }, { "cite": "128 S.E. 2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "258 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560854 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/258/0371-01" ] }, { "cite": "59 N.Y.S. 2d 829", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "185 Misc. 808", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 923645 ], "opinion_index": 0, "case_paths": [ "/misc/185/0808-01" ] }, { "cite": "89 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683360 ], "opinion_index": 0, "case_paths": [ "/nc/89/0447-01" ] }, { "cite": "56 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690221 ], "opinion_index": 0, "case_paths": [ "/nc/56/0302-01" ] }, { "cite": "14 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688913 ], "opinion_index": 0, "case_paths": [ "/nc/14/0188-01" ] }, { "cite": "117 S.E. 804", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656863 ], "opinion_index": 0, "case_paths": [ "/nc/185/0563-01" ] }, { "cite": "80 A.L.R. 941", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "107 S.E. 12", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "181 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655896 ], "opinion_index": 0, "case_paths": [ "/nc/181/0311-01" ] }, { "cite": "186 S.E. 356", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626186 ], "opinion_index": 0, "case_paths": [ "/nc/210/0321-01" ] }, { "cite": "96 S.E. 2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614211 ], "opinion_index": 0, "case_paths": [ "/nc/245/0535-01" ] } ], "analysis": { "cardinality": 637, "char_count": 13917, "ocr_confidence": 0.602, "pagerank": { "raw": 8.034763965763536e-08, "percentile": 0.46571556874551373 }, "sha256": "8e9c7b3dd1d1e519d39af95dc245c3fac20425f2fc80001b3ca38f868eb3c161", "simhash": "1:96bf565c5ba4303f", "word_count": 2295 }, "last_updated": "2023-07-14T18:50:38.610889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Campbell and MoRRis, JJ., concur." ], "parties": [ "HAROLD ADLER v. FIRST-CITIZENS BANK AND TRUST COMPANY, Executor of the Last Will and Testament of MILTON SIDNEY ADLER; WOLFE THOMAS ADLER, Minor; JUDITH RACHAEL ADLER, Minor; and OTHO L. GRAHAM, Guardian ad Litem for WOLFE THOMAS ADLER and JUDITH RACHAEL ADLER" ], "opinions": [ { "text": "PARKER, J.\nThe sole question presented by this appeal is whether testator bequeathed his houseboat named \u201cHeaven\u201d to his brother, plaintiff in this action, by Article VI of his will which provides: \u201cI give and bequeath all the rest and residue of my personal effects, (exclusive of automobiles) including jewelry, clothing, household furniture and any china, silver and crystal not desired by my two first cousins, unto my brother, Harold Adler, if he is living at the time of my death.\u201d We agree with the trial court that he did not.\nWhen a will is presented for construction the intention of the testator is to govern and this is to be ascertained from the language used by him, giving effect, if possible, to every clause, phrase, and expression in the entire instrument. Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E. 2d 690; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356. Moreover, a will is the most personal and individual of all legal documents. Through its language each individual testator seeks to express his own intentions as to the disposition after his death of his own properties among his own chosen beneficiaries. For him, his properties and his beneficiaries are unique. Therefore, the construction arrived at by the courts in interpreting other wills written by other testators under other circumstances and affecting other properties and other beneficiaries, serve only as useful guides. Ultimately, the ascertainment of the true intention of each testator as expressed in his will.and as affecting his individual properties and beneficiaries, must be approached afresh in each individual case. Much depends on the wording of each particular will as it relates to the circumstances of each individual testator. \u201cIn the construction of a will, therefore, \u2018Every tub stands upon its own bottom,\u2019 except as to the meaning of words and phrases of a settled legal purport.\u201d Clark, C.J., in Patterson v. McCormick, 181 N.C. 311, 107 S.E. 12.\nThe word \u201ceffects,\u201d standing alone, has anything but a \u201csettled legal purport.\u201d See Annotation, 80 A.L.R. 941. As pointed out by Adams, J., in the case of In Re Wolfe, 185 N.C. 563, 117 S.E. 804, \u201cthe individual cases construing \u2018effects\u2019 are of value only for the purpose of illustration, each case being a law unto itself; but there seems't\u00f3'be a practical unanimity of judicial decision, with the exception of certain English cases, that the word \u2018effects\u2019 used sim-pliciter or in a general or unlimited sense and unaffected by the context, signifies all that 'is embraced in the words \u2018personal property,\u2019 but is- not sufficiently comprehensive to include real estate. \u2018Effects,\u2019 however, may include land when used as referring to antecedent words which describe real estate, or when used in written instruments in which the usual technical terms are not controlling, as in University v. Miller, 14 N.C. 188; Graves v. Howard, 56 N.C. 302, and Page v. Foust, 89 N.C. 447.\u201d\nIn the. present case testator did not use the word \u201ceffects\u201d simpliciter, but used it in the phrase \u201cpersonal effects.\u201d The ascertainment of the correct meaning of these words in varying contexts has occasioned considerable difficulty. In Re Burnside\u2019s Will, 185 Misc. 808, 59 N.Y.S. 2d 829. In the present case, however, it is apparent that the testator did not intend these words as used by him in Article VI of his will to include all of his personal property of every nature. Such a construction would render completely meaningless the bequest of \u201c(a) 11 the rest'and residue of my estate of whatsoever nature and wheresoever situated,\u201d as contained in the next succeeding Article of his will. Testator owned no real estate. He did own personal property of substantial value. He made elaborate and detailed provisions in Article VII for separate trust funds for the benefit of the children of his brother. In Article VIII he granted his trustee broad discretionary powers in the administration of these trust funds. The very care with which these provisions in Articles VII and VIII were drawn clearly negatives any idea that the testator had the draftsman of his will insert them merely to indulge in an academic exercise in futility. Such would have been the case had he already disposed of his entire personal property of every nature by the provisions of Article VI. It is clear, therefore, that testator by using the words \u201call the rest and residue of my personal effects,\u201d in Article VI, did not intend thereby to dispose of all of his personal property of every nature. On the contrary, it is clear that he was using the words \u201cpersonal effects\u201d in a more limited sense.\n\"Every expression to be correctly understood ought to be considered with a view to the circumstances of its use.\u201d Poindexter v. Trust Co., 258 N.C. 371, 128 S.E. 2d 867; Heyer v. Bulluck, supra. The words \u201cpersonal effects\u201d have been defined as \u201cproperty especially appertaining to one\u2019s person and having a close relationship thereto.\u201d Webster\u2019s Third New International Dictionary (1968). In the present case, however, the testator further clarified his intention by using these words in connection with others. He went on to exclude from the operation of these words any automobiles, thereby avoiding the interpretation which some courts have given when interpreting other wills. (See, e.g., In Re Jones\u2019 Estate, 128 Misc. 244, 218 N.Y.S. 380; In Re Winburn\u2019s Will, 139 Misc. 5, 247 N.Y.S. 584; contra, Jones v. Callahan, 242 N.C. 566, 89 S.E. 2d 111.) He expressly included jewelry, clothing, and his household furniture, as well as such of his china, silver and crystal as should not be desired by his two cousins. By using the words \u201cpersonal effects\u201d in conjunction with these other terms, it is apparent that testator intended to include only things ejusdem generis with those covered by the other terms. A houseboat is clearly not ejusdem generis with articles of jewelry, clothing, household furniture, china, silver or crystal.\nThat testator was advertent to the fact that he owned the houseboat \u201cHeaven\u201d is apparent from his reference to it by name in Article IV of his will. The houseboat was of substantial value, as evidenced by the fact that it brought more than $6,000.00 when sold by his executor shortly following his death. The very fact that testator at the time of executing his will was advertent to his ownership of a houseboat of such value further strengthens our conclusion that he did not intend to dispose of it by relying upon a strained construction of the words \u201cpersonal effects\u201d to accomplish such purpose. Had he really intended to bequeath his houseboat to his brother, it is more reasonable to assume he would simply have said so.\nThe judgment appealed from is\nAffirmed.\nCampbell and MoRRis, JJ., concur.", "type": "majority", "author": "PARKER, J." } ], "attorneys": [ "William T. McCuiston for plaintiff appellant.", "Stevens, Burgwin, McGhee \u25a0& Byals, by Richard M. Morgan for First-Citizens Bank and Trust Company, Executor of the last will of Milton Sidney Adler, deceased, appellee.", "Boshamer & Graham, by Otho L. Graham for Guardian Ad Litem of Wolfe Thomas Adler, and Judith Rachael Adler, minor defendant appellees." ], "corrections": "", "head_matter": "HAROLD ADLER v. FIRST-CITIZENS BANK AND TRUST COMPANY, Executor of the Last Will and Testament of MILTON SIDNEY ADLER; WOLFE THOMAS ADLER, Minor; JUDITH RACHAEL ADLER, Minor; and OTHO L. GRAHAM, Guardian ad Litem for WOLFE THOMAS ADLER and JUDITH RACHAEL ADLER\nNo. 693SC166\n(Filed 28 May 1969)\n1. Wills \u00a7 57\u2014 designation of bequest \u2014 description \u2014 \u201cpersonal effects\u201d \u2014 houseboat\nTestator\u2019s bequest to bis brother of \u201cmy personal effects, (exclusive of automobile) including jewelry, clothing, household furniture and any china, silver and crystal not desired by my two cousins,\u201d does not include a houseboat owned by testator at the time of his death, since it is apparent from the language of the will that testator intended to include as \u201cpersonal effects\u201d only things ejusdem generis with those articles specifically named.\n3. Wills \u00a7 28\u2014 rules of construction \u2014 intention of testator\nWhen a will is presented for construction, the intention of the testator is to govern and this is to be ascertained from the language used by him, giving effect, if possible, to every clause, phrase, and expression in the entire instrument.\n3. Wills \u00a7 28\u2014 rules of construction \u2014 interpretation of other wills\nA will is the most personal and individual of all legal documents, and therefore the constructions arrived at by the courts in interpreting other wills written by other testators under other circumstances and affecting other properties and beneficiaries serve only as useful guides.\n4. Wills \u00a7 55\u2014 description of devise \u2014 realty or personalty \u2014 \u201ceffects\u201d'\nOrdinarily, the word \u201ceffects\u201d used simpliciter or in a general or unlimited sense and unaffected by the context signifies all that is embraced in the words \u201cpersonal property,\u201d but is not sufficiently comprehensive to include real estate.\n5. Wills \u00a7 57\u2014 bequest of \u201cpersonal effects\u201d \u2014 amount of bequest\nWhere testator owned no- real estate but did own personal property of substantial value, testator\u2019s bequest of his \u201cpersonal effects\u201d to a brother will not be construed to include all of his personal property of every nature, since such a construction would render completely meaningless a bequest to a trust fund of \u201call the rest and residue of my estate of whatsoever nature and wheresoever situated,\u201d as contained in the next succeeding article of his will.\n6. Wills \u00a7 28\u2014 rules of construction\nEvery expression in a will- ought to be considered with a view to the circumstances of its use.\n7. Wills \u00a7 55\u2014 \u201cpersonal effects\u201d defined\nThe words \u201cpersonal effects\u201d have been defined as property especially appertaining to one\u2019s person and having a close relationship thereto.\nAppeal by plaintiff from Martin, Robert M., J., October 1968 Civil Session of CARTERET Superior Court.\nThis is a civil action for declaratory judgment to construe the last will of Milton Sidney Adler, deceased. Plaintiff is the brother of the testator and defendants are respectively the executor and residuary beneficiaries under his will. The parties waived jury trial and agreed that the judge might hear the evidence and make findings of fact, conclusions of law, and enter judgment thereon.\nFor purposes of the question presented by this appeal, the pertinent portions of the will are as follows:\n\u201cArticle IV\n\u201cI give and bequeath any motor boat or yacht owned by me at the time of my death (exclusive of the houseboat \u2018HeaveN\u2019) together with any fishing equipment or tackle used in connection therewith to my good friend, W. D. Aman, Sr. of Swansboro, North Carolina.\n\u201cARTICLE Y\n\u201cI give and bequeath unto 'my first cousins, Muriel Cherney Schloss and Judith Cherney Schwaber, all of my china, silver, and crystal to be divided by them equally.\n\u201cArticle VI\nI give and bequeath all the rest and residue of my personal effects, (exclusive of automobiles) including jewelry, clothing, household furniture and any china, silver and crystal not desired by my two first cousins, unto my brother, Harold Adler, if he is living at the time of my death.\u201d\nBy Article VII the testator devised and bequeathed \u201c(a) 11 the rest and residue of my estate of whatsoever nature and wheresoever situated\u201d unto First-Citizens Bank and Trust Company, in trust, and directed said trustee to divide the trust property into separate and equal shares so as to provide a trust fund for each of testator\u2019s neices and nephews, children of his brother, Harold Adler, who is plaintiff in this action. Article VII went on to provide detailed directions to the trustee as to the payment and application of net income and principal of each beneficiary\u2019s trust \u201cfor the health, education, general welfare or general benefit of each such beneficiary,\u201d until such beneficiary should attain the age of 30 years, at which time such beneficiary should receive the entire principal of his or her trust and the same should terminate. Article VII directed a partial distribution of principal as each beneficiary became 25 years old. Article VII also contained provisions directing the disposition of the trust property in the event any beneficiary should die prior to termination of the trust for his or her benefit. Paragraph (E) of Article VII then provided:\n\u201cIf all the beneficiaries hereinabove enumerated shall die, I direct that any portion remaining shall be assembled into one trust by my Trustee and held for the use and benefit of my brother, Harold Adler. Until my said brother reaches sixty (60) years of age, the Trustee may use any part or all of the income or principal of said trust for his maintenance and support with right to apply same for his benefit if said Trustee deems same in his interest. If my said beneficiary attains the age of sixty (60) years this trust shall terminate and the Trustee shall deliver to him the entire principal and any income then held by it and said trust shall terminate.\u201d\nBy Article VIII the testator granted his executor and trustee broad discretionary powers in dealing with any properties held in his estate or in any trust.\nThe parties stipulated that the estate of the testator consisted entirely of personalty in the value of $254,527.03. Following the death of the testator, by consent of all parties the executor sold the houseboat \u201cHeaven,\u201d realizing $6,131.07 in net proceeds from such sale.\nPlaintiff contends that by Article VI of the will the testator bequeathed the houseboat \u201cHeaven\u201d to him, and prayed for declaratory judgment construing the will in conformity, with this contention and for an order directing the executor to pay to him $6,131.07, representing the net proceeds from the sale of the houseboat, with interest from the date of sale.\nThe trial judge entered judgment adjudging that Article VI of the will of Milton Sidney Adler did not bequeath the houseboat \u201cHeaven\u201d to the plaintiff. To this judgment, plaintiff excepted and appealed.\nWilliam T. McCuiston for plaintiff appellant.\nStevens, Burgwin, McGhee \u25a0& Byals, by Richard M. Morgan for First-Citizens Bank and Trust Company, Executor of the last will of Milton Sidney Adler, deceased, appellee.\nBoshamer & Graham, by Otho L. Graham for Guardian Ad Litem of Wolfe Thomas Adler, and Judith Rachael Adler, minor defendant appellees." }, "file_name": "0600-01", "first_page_order": 620, "last_page_order": 626 }