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Bill by Emil Stender and others against Carl Stender and Elmer W. Mulford, executor of the estate of Hugo H. Stender, deceased, et al., for the construction of decedent's will. From a decree for complainants, defendants appeal. Affirmed.
William E. Henze, for complainants.
BROOKE, J. The bill in this case is filed to secure a construction of the will of Hugo Stender, deceased. The will follows:
"1. I will and direct that all my just debts and funeral expenses be paid in full.
“2. I give and bequeath five hundred ($500.00) dollars to the Protestant Orphan Asylum of Detroit, Michigan.
"3. I give and bequeath five hundred ($500.00) dollars to the German Protestant Home for Orphan and Old People of Detroit, Michigan.
"4. I give and bequeath to my brother Carl of Detroit, Michigan, all the rest and remainder of my personal property, including my cigar manufacturing business.
“5. All the rest, residue and remainder of my property of every nature and description and wheresoever located, I give, devise and bequeath to the following:
"One-fifth thereof to my brother Carl of Detroit,
"One-fifth thereof to my brother William, formerly of Chicago,
“One-fifth thereof to my brother Emil, of Herford, in Westphalia, Germany,
"One-fifth thereof to my sister Thusnelda of Herford,
“One-fifth thereof to the children of my late halfsister Mathilda Huebner of Herford.
“In the event of the death of any one or more of the children of Mathilda Huebner before my demise, I will and direct that their survivors shall take the interest of such deceased. In the event of the death of any one or more of my brothers, or my sister before me, I will and direct that the interest of such
deceased, as in this paragraph set forth, shall pass to the survivors of them.
“6. I hereby appoint my brother Carl, and my attorney, Elmer W. Mulford, of Detroit, Michigan, or their survivor, executors of this my last will and testament, and having confidence in their ability and honesty I request the probate court to require them to file no more than a nominal bond.
“7. I hereby revoke all wills by me heretofore made.
"In witness whereof I have hereunto set my hand and seal this 29th day of June, 1911.
"HUGO H. STENDER."
The contest arises over the construction to be given to sections 4 and 5. It will be noted that the will is dated June 29, 1911. At that time the testator was possessed of a cigar manufacturing business, personal effects and money in the bank to the amount of about $1,100. At the same time he was possessed of real estate of the approximate value of $200,000. He died on November 21, 1912, one year and four months after the date of the execution of his will. Between the date of the will and the date of his death he sold upon land contract about three-fourths in value of his real estate. At the time of his death there was due him upon these contracts about the sum of $130,000. It is the claim of Carl Stender and Elmer W. Mulford, his executors, and of Carl Stender, personally, that Carl Stender takes under section 4 of the will all of the interest of the testator in said land contracts. This contention would result in giving to Carl Stender something like four-fifths of the entire estate of his deceased brother, while the other one-fifth would be divided among three surviving brothers and sisters and the heirs of a deceased half-sister. The contention of the appellees which prevailed in the court below was that a proper construction of section 4 of the will read in the light of section 5 thereof leads to the conclusion that it was the intention of the testator by section 4 to give to his brother Carl only the cigar business named in section 4, the personal effects of said testator, and (possibly) the bank account used in connection with the cigar business. The testator was an unmarried man, and had been engaged in the cigar business in the city of Detroit for a great many years prior to his death. His brother Carl had occupied the position of clerk in his store for some 17 years. All of the devisees in the will, treating the heirs of Mathilda Huebner as representing their mother, were brothers or sisters of the testator, related to him in the same degree, and were natural objects of his bounty in an equal degree.
On the part of the appellants it is contended that land contracts are personal property (Bowen v. Lansing, 129 Mich. 117 [88 N. W. 384, 57 L. R. A. 643, 95 Am. St. Rep. 427]), and must pass as such under the will; that the will takes effect at the time of testator's death, and not at the time of its making (Union Mutual Ass'n v. Montgomery, 70 Mich. 587, and cases cited [38 N. W. 588, 14 Am. St. Rep. 519]); and that the sale of the real estate after the date of the will operates to revoke the will pro tanto, and the proceeds of such sale must pass to the legatees, residuary or otherwise, as personal property. In re Sprague's Estate, 125 Mich. 357 (84 N. W. 293).
As to the general soundness of the legal principles contended for by appellant's counsel there can be no doubt. We think, however, that there are certain rules of construction which are paramount and which should be conclusive against the contention of appellants in the instant case. The first and most important rule to be observed in construing a will is to ascertain the intention of the testator and to give effect to that intention if it be legally possible. Of course, that intention must be gathered from the instrument itself. But in determining what the real intention of the testator was, the entire instrument must be examined and all of its terms and language must be given due consideration. Bearing this in mind, let us examine the language of section 4:
"I give and bequeath to my brother Carl of Detroit, Michigan, all the rest and remainder of my personal property, including my cigar manufacturing business.'
By sections 2 and 3 the testator had provided for legacies amounting in all to $1,000. At the time the will was made, it is shown that he had a bank account of about $1,100, and was the owner of a cigar manufacturing business, the value of which the record does not disclose. Aside from this he had at that time no personal property, except doubtless such wearing apparel and articles of personal use as are ordinarily possessed by one in his station. He was an unmarried man, and the five brothers and sisters to whom he devised his estate were his nearest relatives. If we agree with the contention of appellants, we are at once met with the query as to what meaning shall be given to the words, “including my cigar manufacturing business,” contained in section 4. If it was the intention of Hugo Stender to give to his brother Carl all the personal property of which he died possessed, except the $1,000 theretofore bequeathed, the words are absolutely meaningless. We cannot suppose that the testator used these words without intending that they should have some bearing upon the business he was about. It is our conclusion that the term "personal property” as contained in clause 4 of the will was used by the testator in its ordinary and popular sense. In its broadest legal significance that term includes every subject of ownership, except land or an interest in land, but popularly it is frequently used in a more restricted sense, and is meant to include goods and chattels, tangible things, the subjects of personal use. It is most commonly applied in a popular way to goods and chattels. That the testator in the in
stant case used it with this restricted meaning we believe. This belief is strengthened by the fact that after the words, "all the rest and remainder of my personal property," and as indicating the character of the personal property intended to be disposed of, he said, "including my cigar manufacturing business."
It is a cardinal principle of construction that where certain things are enumerated and a more general description is coupled with the enumeration, that description is commonly understood to cover only things of a like kind with those enumerated. The reason for this rule is that it is presumed that the testator had only those things in mind. Given v. Hilton, 95 U. S. 591; 1 Redfield on Wills (2d Ed.), p. 445, (1st Ed.), p. 441; 1 Jarman on Wills (6th Ed.), p. 735; Bills v. Putnam, 64 N. H. 554 (15 Atl. 138); Benton v. Benton, 63 N. H. 289 (56 Am. Rep. 512); Dole v. Johnson, 3 Allen (Mass.), 364. Further strength is lent to the foregoing view when we consider the terms of section 5 of the will. It is of course clear, if the contention of appellants is to obtain, that when section 4 had been written, the testator had divested himself of all of his personal estate. He therefore had nothing further upon which his will could operate except real estate. Instead of limiting clause 5 to a devise of real estate, it is so worded as to indicate that the testator believed that, after clauses 2, 3, and 4 had been complied with there would yet remain personal as well as real estate subject to distribution. The language used indicates this belief beyond peradventure:
“All the rest, residue and remainder of my property of every nature and description and wheresoever located, I give, devise and bequeath to the following."
It is impossible to believe that this language would have been used by the testator had he intended it to