Estate of Cowden

SHINN, J.,

pro tem.

Appeal from an order construing a will.

The provisions of the will in question read as follows: “ To my brother E. C. French the sum of two hundred dollars &

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my clothing & personal property. To my stepchildren by my husband Forbes C. Cowden I bequeath the rest of my estate both real & personal & wherever situated share and share alike. ” In a proceeding initiated to obtain an interpretation of these conflicting provisions, the court held that the brother took the sum of $200 and the clothing and personal effects of the decedent, including “only such items as jewelry and other articles of personal adornment ’ ’, and that the residue of the estate, which included stocks and bonds of the value of some $1500 and household furnishing of the value of $300 went to the stepchildren under the residuary provision.

Upon this appeal, the brother contends that the will should be so construed as to give him all of the personal property. He relies upon certain well-established rules of construction, namely, that a specific bequest will control a general bequest where the two are in conflict (69 C. J. 115); a clear and distinct bequest cannot be affected by . . . any other words not equally clear and distinct, or by inference or argument from other parts of the will, . . . (Probate Code, sec. 104); that the law presumes an intention that the property should go in the legal channels of descent (26 Cal. Jur. 209); and that 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, . . . (Probate Code, see. 106.) If these rules are controlling the position of appellant is correct. Other rules declare that effect must be given to every expression in a will when that can be done, and the entire will must be construed so "as to form one consistent whole (Probate Code, secs. 102, 103). Under section 101, which was followed by the trial court, the will must be construed according to the intentions of the testatrix and where such intention cannot be given effect to its full extent, it must have effect as far as possible. All of these rules of interpretation have as their ultimate object the ascertainment of the intentions of the maker of the will and they may be applied to support but not to defeat such intention.