IN RE: NORTHCUTT'S ESTATE. (1940)

This is an appeal by the executor and trustee from an order of partial distribution. The will, which was duly admitted to probate, provides in part as follows:

“Fourth: I hereby direct that my executor shall sell all my personal property, and shall divide the same in equal shares between Mrs. Byrd Lowell Boyd and Robbie Nelson Dewar. If, however, any portion of the same is needed to pay debts or costs of administration, same shall be first deducted.

“Fifth: I give, devise and bequeath the residue of my estate, real and personal, wherever situated and however held, hereinafter termed the ‘Trust Estate’ to Forest G. Smith, as Trustee in Trust as follows:”

The court commissioner, acting as judge pro tempore, held that the personal property described in paragraph “Fourth” which was to be sold according to the terms of said paragraph, included money in the bank, and ordered distribution accordingly.

It is contended on appeal that such ruling was error.

The trial court construed the words “personal property” to mean and include money belonging to the deceased which was on deposit in the bank, evidently on the theory that “personal property” includes “money” by virtue of section 14 of the Civil Code, and that the words “personal property” are “technical” within the contemplation of section 106 of the Probate Code.

Respondent urges such construction on appeal and in that connection argues as follows: “It should be remembered that the will in this case was drawn by an attorney at law. In fact it was drawn and prepared by appellant, who is an attorney at law.” In support of the aforesaid argument respondent cites Estate of Bourn, 25 Cal.App.2d 590 at 595, 78 P.2d 193, 196, wherein, with regard to the question there considered, the court observed that, “As declared by section 106 [Probate Code], ‘technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense’; and it is held generally that where the will is drawn by a lawyer whose experience and competence is beyond question, the presumption that legal terms embodied in the will are used in their legal sense is all but conclusive.” In the Bourn case, supra, the controversy arose over the meaning to be given to the words “annuity or annuities”, in connection with which the court held that as there used they were to be “taken in their technical sense”. However, it should be noted that relevant circumstances cannot be disregarded. For example, in the Bourn case, supra, the court further observed. “Here, as pointed out by the probate court, the will and the codicils thereto (there were four of them) were drafted by a lawyer of competence and experience; * all of said documents were prepared with deliberation, and all legal terms employed in drafting the same selected with studied care.” Manifestly a sentence, such as is incorporated in the fourth provision of the will herein, that literally requires the impossible, can scarcely be said to have been drafted “with studied care” by a lawyer of “competence and experience”. Without the aid of miracles, personal property cannot be both sold and divided at the same time. The words “personal property” as used in the will in question cannot be taken in their technical sense to include money without doing violence to reason. On the other hand, by resorting to an analysis of the context of the fourth provision, it is at once evident that what is intended is simply that the personal property should be sold and the proceeds divided. What is intended by the use of the word “same” in the expression “divide the same”, in the first sentence, would be somewhat of a puzzle but for that which follows; that is to say, the second sentence continues: “If, however, any portion of the same is needed to pay debts or costs of administration *.” (Italics added.) Thus the use of the word “same” in the second sentence clearly indicates its intended signification in the first sentence; namely, that it was intended to mean proceeds. Debts were to be paid with the “same”; obviously this provision refers to the proceeds of the sale of the personal property referred to in the first sentence. The word proceeds is understood; that a word may be understood, in proper cases, by construction has never been questioned.

The intention of the testator is clear, namely, that after the sale of the personal property, the proceeds of the sale are to be divided, and that money in the bank is not intended to be included in the sale. It is the intention of the testator that governs, and this is to be determined from an examination of the will itself without resort to extraneous circumstances unless necessary for an effective determination of such intention.

Other objections to the appeal, urged by respondent, are without merit.

The order of partial distribution is reversed and the cause remanded with directions to proceed in accordance with the views herein expressed.

DORAN, Justice.

We concur: YORK, P.J.; WHITE, J.