Estate of Graham

49 Cal.2d 333 (1957) Estate of JOSEPHINE H. GRAHAM, Deceased. JEAN E. FITZGERALD, Appellant,

v.

SALVATION ARMY OF CALIFORNIA (a Corporation), Respondent.

L. A. No. 24386. Supreme Court of California. In Bank.

Nov. 5, 1957. A. V. Falcone and Hugh E. McManus for Appellant.

Meserve, Mumper & Hughes, J. Robert Meserve and Douglas M. Shumway for Respondent. [335]

TRAYNOR, J.

Josephine H. Graham died January 6, 1955, at the age of 91 years, leaving as her only surviving relative her brother, Fred L. Graham, who is approximately 87 years old. Her estate was appraised at $157,925.92 and consists of real property valued at $40,000, an oil and gas lease valued at $150, home furnishings valued at $125, and stocks and bonds valued at $117,650.92.

The decedent's formally executed will has been admitted to probate. After providing for the devise of three lots to a friend of the testatrix [fn. *] the will provides that the residue of the estate is to be held in trust for the benefit of the testatrix's brother during his life. Jean E. Fitzgerald, appellant herein, is named as executrix and trustee. Among the powers granted the trustee is the power to sell any part of the trust estate except the testatrix's home, which is to be retained as a home for the testatrix's brother. The will then provides:

"Twelth: When my said brother shall have died, then the Trustee shall distribute the remaining portion of the Trust as follows: To Jean E. Fitzgerald, the sum of Two Thousand Dollars ($2,000.00) and any part of the personal property she may desire. The residue of my property and estate to go to The Salvation Army of California, a religious and charitable corporation."

The matter in dispute is the meaning of the phrase "personal property" in the foregoing provision of the will. Appellant contends that it includes all the property except realty. Respondent contends that it includes only the home furnishings and not the stocks and bonds. The trial court found this part of the will ambiguous and on the basis of the language in the will and extrinsic evidence found that "[w]hen testatrix used the words 'personal property' ... she intended this phrase to be used in its popular sense to mean personal effects, furniture, furnishings and other tangible personal property in and about the premises of her home. Testatrix did not mean that the words 'personal property' ... included intangible personal property such as cash, stocks, securities and bank accounts." Appellant contends that the will is clear and unambiguous, that the court should not have received extrinsic evidence, and that "personal property" is a technical term and under section 106 of the Probate Code must be taken to mean "every kind of property that is not real." (Civ. Code, 663.) The applicable part of section