MEMORANDUM

TO: W.C. AndrewsFROM: Erin LeeRE: Lillie Keenan bequest/Kent Farrington EstateDATE: December 1, 2014

QUESTION PRESENTEDIn his will, Mr. Farrington gave our client, Lille Keenan, his “home and its

contents” and his “personal effects.” He did not directly bequeath his sports

memorabilia collection, which was housed in a separate building on the same plot

of land as his house. Is a court likely to interpret either of these phrases as

including Mr. Farrington’s collection?

BRIEF ANSWERProbably. The collection is likely to pass under the phrase “home and its

contents.” “Home” generally means more than “house” and includes the buildings

on the property and all appurtenances used in connection with the house. The

collection is located in a museum on the same plot of land as Mr. Farrington’s

house and was intimately connected with his enjoyment of his property. “Personal

effects” has been defined to include only those things intimately connected with

the person of the testator. A court is unlikely to include a collection of sports

memorabilia in this definition.

STATEMENT OF FACTSLille Keenan, our client, is a beneficiary in the will of her late uncle, Kent

Farrington. In his will, Mr. Farrington gave Ms. Keenan his “home and its

contents” and “all of his personal effects.” He gave the remainder of his estate to

Ms. Keenan’s cousin. Ms. Keenan wants to know whether her uncle’s sports

memorabilia collection will pass to her or her cousin.

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Mr. Farrington was an oil producer in Midland, Texas until he retired in

his late sixties. After retiring, he amassed an impressive baseball memorabilia

collection that is worth between $1.5 and $1.65 million. The collection is housed

in a “museum” that is on the same plot of land as Mr. Farrington’s home, but is

not connected to the house and has its own entrance from a side road. Mr.

Farrington frequently conducted tours of and hosted social events in the museum.

According to Ms. Keenan, “his life pretty much revolved around the collection.”

Mr. Farrington died on July 15, 2014. At this time, his estate was worth

approximately $4 million. It seems that Mr. Farrington did not consult a lawyer

regarding his will, but it meets the requirements for validity and authenticity.

According to Ms. Keenan, Mr. Farrington never gave any indication regarding

who he intended to give his collection to. Neither Ms. Keenan nor her cousin are

sports fans, and Ms. Keenan is not sure why Mr. Farrington chose the two of them

as the beneficiaries of his will.

DISCUSSIONThe court will likely interpret the language of the bequest to Ms. Keenan

as including the baseball memorabilia collection. The collection will likely pass

under the language “home and its contents,” not “personal effects.”

In construing a will, the court’s focus is on the testator’s intent. San

Antonio Area Foundation v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). The intent

must be ascertained from the language found within the four corners of the will.

Id. Extrinsic evidence is admissible only when a term is open to more than one

construction. Id. The language of a will must be given a fair, practical, and

reasonable interpretation. Briggs v. Peebles, 188 S.W.2d 147, 150 (Tex. 1945).

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Of the language used by Mr. Farrington, only the word “contents” has

been given an unambiguous statutory definition in Texas. In a will, “contents”

means tangible personal property, other than titled personal property, found inside

of or on a specifically devised item. Tex. Prob. Code Ann. § 58(d) (West Supp.

2009) The term includes clothing, pictures, furniture, coin collections, and other

tangible items that do not require a formal transfer of title. Id. Therefore, any

untitled pieces of the collection fall under the statute’s definition of contents and

will pass to Ms. Keenan if the court interprets them as being inside of or on Mr.

Farrington’s “home.”

The remainder of this memo will address how the court will likely

interpret the phrases “home and its contents” and “personal effects.” First, it will

show that the word “home” will likely be interpreted as including the museum

and its untitled “contents.” Second, it will show that “personal effects” is unlikely

to be interpreted as including the collection. Because the court will likely find that

the phrase “home and its contents” includes the collection, it will pass to Ms.

Keenan.

The collection will likely pass under “home and its contents.” There are

several Texas cases that show how the courts interpret the word “home” when

determining what passes under a bequest of “home and its contents,” but it is

difficult to develop a full understanding of the factors courts consider without also

looking to persuasive authority. Considering this, it is likely that the untitled

pieces of the sports memorabilia collection will pass to Ms. Keenan under the

phrase “home and its contents.”

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When determining what passes under a bequest of “home and its

contents,” courts first consider the language used by the testator. Significance is

placed on the fact that the word “home” was used rather than “house.” In re

Marshall’s Will, 198 N.Y.S.2d 535, 536 (N.Y. Sur. Ct 1960). Second, property is

more likely to be considered part of the contents of the home if its use is

intimately connected with the home and the testator. Jones v. Holloway, 36 A.2d

551, 553 (Md. 1944). Third, the focus is on the intent of the testator, and courts

are willing to relax the rules of construction to arrive at a disposition that most

reasonably reflects his intent. Huffman v. Huffman, 339 S.W.2d 885, 889 (Tex.

1960).

When a testator gives a gift of the “contents of his home,” courts place

significance on the word “home.” Marshall, 198 N.Y.S.2d 535 at 536. In Hulse,

the testator owned land upon which a barn was built. In re Hulse’s Estate, 72

N.Y.S.2d 724, 725 (N.Y. Sur. Ct. 1947). He kept items related to his work as a

funeral director in the building. Id. In his will, the testator gave the “contents” of

his “home” to a certain legatee. Id. That legatee claimed that she was entitled to

all the personal property in the house and the barn. Id at 726. The residuary

legatees claimed only the dwelling house and its contents should be included in

the bequest. Id. The court held that the “contents” of the testator’s “home” meant

all personal property upon or in the testator’s realty, including the outbuilding and

its contents. Id. at 727. It reasoned that “home” is broader than “house” and

includes surrounding grounds and buildings used in connection with the

occupancy of the property. Id at 726. This reasoning has been used by many

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courts. Compare Lewis v. Atkins, 105 N.E.2d 183, 185 (Ind. App. 1952) (devise of

home included entire residence estate and garage which stood on such parcel) and

Chase Nat. Bank v. Deichmiller, 152 A. 697, 698 (N.J. Ch. 1930) (“home” means

not merely the dwelling house, but the entire residence estate and includes

animals and agricultural machines), with In re Robbins’ Estate, 356 A.2d 679,

682-83 (N.H. 1976) (bequest of “contents of the house” referred only to those

objects customarily kept inside the testatrix’ dwelling house and did not include a

car).

Additionally, property is likely to be considered part of the contents of the

home if it is intimately connected with the testator’s use and enjoyment of the

home. Jones v. Holloway, 36 A.2d 551, 553 (Md. 1944). In Jones, the testator

gave his “bungalow home” to his wife. Id. at 552. His homestead included five

acres of land, his bungalow, and a filling station and shop which the testator used

in connection with his work. Id. The testator’s daughter contended that the filling

station and shop were not included in the bequest to the testator’s wife. Id. at 553.

The court disagreed and held that the shop and filling station were included in the

testator’s bequest of his bungalow home. Id. at 554. It reasoned that a devise of a

home usually includes all appurtenances which were customarily enjoyed by the

occupant and which tend to make it a convenient and agreeable place of abode or

business. Id. at 553. See East v. Estate of East, 785 N.E.2d 597, 603 (Ind. Ct.

App. 2003) (devise of home included 40 acres which was necessary to enjoy the

property) and Cuppett v. Neilly, 105 S.E.2d 548, 560 (W.Va. 1958), overruled on

other grounds by Watson v. Santalucia, 427 S.E.2d 466 (W.Va. 1993) (home

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included automobile in garage because it was enjoyed by the owner during his

lifetime).

On the other hand, property that is not used in connection with the home is

unlikely to pass under the phrase “home and its contents.” In Taliaferro, the

testator gave to his grandson “complete charge of my home, this includes all the

contents.” Taliaferro v. Mayer, 681 S.W.2d 882, 883-84 (Tex. App.—Fort Worth

1984, no writ). The court held that this bequest did not include the testator’s car

parked on the street in front of the house because that would stretch the meaning

of “contents” too far. Id. at 885. Similarly, in Rudy, the court held that the

contents of the testator’s home did not include cash, stocks, bonds, or a collection

of rare coins kept in a safe. Matter of Estate of Rudy, 478 A.2d. 879, 881 (Pa.

Super. Ct. 1984). The court reasoned that “contents of a home” means only those

items of personal property which convert a house into a home. Id. See also

Goggans v. Simmons, 319 S.W.2d 442, 446 (Tex. Civ. App.—Fort Worth 1958,

writ ref’d n.r.e.) (testator’s stocks were not part of home because they were not

intimately connected with the home).

Finally, courts are willing to relax the rules of construction to arrive at the

intent of the testator. Huffman v. Huffman, 339 S.W.2d 885, 889 (Tex. 1960). In

Paul, the testator gave his wife the “contents of the home.” Paul v. Merrill Lynch

Trust Co. of Texas, 183 S.W.3d 805, 807 (Tex. App.—Waco 2005, no pet.). The

testator’s gun collection was being stored at his office, but the evidence showed

that he intended to keep it at his home. Id. at 810. The court yielded to the

testator’s intent and held that his gun collection came within the “contents of the

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home.” Id. Similarly, in Renner, the testator’s personal estate was worth about

$15,000. In re Renner’s Estate, 57 A.2d 836, 837 (Pa. 1948). About $12,000 in

cash was found in the testator’s house. Id. at 838. The court held that the phrase

“home and its contents” did not include the $12,000. Id. It reasoned that holding

otherwise would be repugnant to the decedent’s obvious testamentary scheme,

which made it clear that he did not intend for four-fifths of his entire estate to pass

to a single legatee. Id., noted in In re McCartney’s Estate, 61 Pa. D. & C. 112,

113-16 (Pa. Orphans’ Ct. 1947).

In the present case, Mr. Farrington used the word “home” instead of

“house.” Like in Hulse, where the testator’s “home” included outbuildings and

their contents, the court is likely to recognize that “home” is generally given a

broader meaning than “house.” Second, the collection was intimately connected to

Mr. Farrington’s use and enjoyment of his home. He frequently conducted tours

of the museum and held social events in the hall. According to Ms. Keenan, “His

life pretty much revolved around the collection.” The museum and collection are

like the filling station and shop in Jones, which were frequently used by the

testator. The collection can be distinguished from the car in Taliaferro which was

kept on the street, because the collection was kept and used on Mr. Farrington’s

property. Third, interpreting the phrase “home and its contents” as including the

collection is the most reasonable understanding of Mr. Farrington’s intent. Unlike

in Paul, in which evidence showed that the testator intended to keep his gun

collection at his home, there is no evidence suggesting that Mr. Farrington

intended his collection to be excluded from his bequest of his “home and its

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contents.”

A counterargument might be made that the collection will not pass under

the phrase “home and its contents.” First, one could contend that a sports

memorabilia collection is akin to the coin collection in Rudy, which was held not

to pass under a bequest of “home and its contents” because it was not property

that made a house a home. However, the collection in our case is distinguishable

because it was used for Mr. Farrington’s enjoyment and kept on display in a

museum, whereas the collection in Rudy was kept in a safe. Additionally, the

Texas legislature specifically enumerated “coin collections” as being included in

the statutory definition of contents, and a sports memorabilia collection is a

similar type of property.

Second, an argument might be made that if the collection passed to Ms.

Keenan, it would be repugnant to Mr. Farrington’s testamentary scheme. The

argument could be based on the reasoning in Renner, in which four-fifths of the

testator’s estate did not pass to a single legatee. However, the collection is

distinguishable because it constitutes less than half the value of Mr. Farrington’s

estate. If the court interprets “home and its contents” as including the collection,

Ms. Keenan’s cousin will still receive any titled pieces of the collection, any

intangible personal property, any other real property, and any personal property

not kept at Mr. Farrington’s home. Therefore, Mr. Farrington’s testamentary

scheme will not be ruined.

The relevant circumstances in our case support a conclusion that the courts

will interpret Mr. Farrington’s bequest of his “home and its contents” broadly

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enough to include the museum and its contents, which includes the untitled pieces

of the collection.

The collection is unlikely to pass under “personal effects.” It is

unlikely that the court will interpret the expression “personal effects” as including

any pieces of the collection, titled or untitled.

In Texas, “personal effects” is generally defined as personal property

bearing an intimate relation or association to the person of the testator. Kaufhold

v. McIver, 682 S.W.2d 660, 664 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d

n.r.e.) (collecting cases). If there is a residuary clause, the court is especially

likely to interpret the phrase “personal effects” narrowly because there isn’t a

concern that intestacy will result. In re Gardner, 217 N.Y.S. 865, 868 (N.Y. App.

Div. 1926) (citing In re Reynolds, 26 N.E. 954, 398 (N.Y. 1891). Courts assume

that when technical, legal terms are used in a will, they are being used correctly

unless a different meaning can be gleaned from the will as a whole. Lacis v. Lacis,

355 S.W.3d 727, 733 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d w.o.j.).

The testator’s knowledge regarding legal terms is a factor in this consideration.

Kaufhold, 682 S.W.2d 660 at 665.

“Personal effects” is generally defined as personal property bearing an

intimate relation or association to the person of the testator. Id. at 664 (collecting

cases). In First M.E. Church, the testator gave to his wife “all personal effects of

every nature, without restriction or limitation of any nature whatsoever.” First

M.E. Church South v. Anderson, 110 S.W.2d 1177, 1178 (Tex. Civ. App.—Dallas

1937, writ dism’d). Despite the seemingly unrestricted language of the bequest,

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the court held that the meaning of “personal effects” was limited to items bearing

an intimate relation to the person of the testator, such as jewelry, clothing,

eyeglasses, dentures, and luggage. Id. at 1183-84. It reasoned that this

interpretation was appropriate because it is the meaning customarily given to the

phrase, and since the will included additional provisions for both the testator’s

real and personal property, expanding the meaning of “personal effects” would

have been repugnant to the decedent’s testamentary scheme. Id.

Similarly, if there is a residuary clause, the court is likely to interpret the

phrase “personal effects” narrowly. Gardner, 217 N.Y.S. 865, 868. (N.Y. App.

Div. 1926). In Gardner, the testatrix gave to a friend all her toilet articles, a clock,

all of her furs and dresses, and all of her “purely personal effects.” Id. at 866. The

will also contained a residuary clause. Id. The friend claimed that she was entitled

to a large collection of expensive jewelry, household furniture, paintings, and an

automobile. Id. The administrator of the will claimed that the phrase should be

limited to property of a similar nature than that specifically bequeathed. Id. The

court agreed with the administrator, reasoning that the preceding clause should

not be given too broad a construction since intestacy is not a concern when there

is a residuary clause. Id.

On the other hand, "personal effects" may be given a broad meaning if

there is no residuary clause. In Reimer, the testator bequeathed his books,

clothing, and furniture. In re Reimer’s Estate, 28 A. 186, 186 (Pa. 1893). He then

gave the “balance of personal effects” to his nephews and nieces. Id. The court

held that “personal effects” meant the remainder of the testator’s personal

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property because intestacy would have occurred if the words had not been given a

broad meaning. Id. at 186-87. The court based its decision on the rule that when a

will is made, there is a presumption against intestacy. Id.

Courts also consider the testator’s legal knowledge when technical terms

are used in a will. They assume that technical terms are being used correctly

unless a different meaning can be gleaned from the will as a whole. Lacis, 355

S.W.3d 727 at 733. In Kaufhold, the testatrix specifically bequeathed some items

of personal property and her homestead, then directed that her “personal effects”

be divided among several relatives. Kaufhold, 682 S.W.2d 660, at 663. The

appellant argued that “personal effects” should include all of the testatrix’

personal and real property because otherwise, intestacy would result. Id. at 664.

The court disagreed and interpreted “personal effects” as meaning only those

items bearing an intimate relation to the person of the testatrix. Id. at 668. It based

this holding on evidence that the testatrix had personal knowledge of legal terms

such as real property and personal effects. Id.

In the present case, the court is likely to interpret “personal effects” as

meaning only those items bearing an intimate relation to Mr. Farrington’s person.

Like in Gardner, in which “personal effects” was interpreted narrowly because

there was a residuary clause, the court in our case will not be concerned with the

possibility of intestacy. Additionally, courts assume technical terms are being

used correctly unless a different meaning can be gleaned from the will as a whole.

The court in Kaufhold adhered to this assumption even though doing so resulted

in intestacy. There is no evidence that Mr. Farrington intended “personal effects”

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to be given a broader interpretation than is customary. If it were interpreted

broadly to include all personal property, then the phrase “home and its contents”

would be redundant and the residuary clause largely meaningless.

An argument that Mr. Farrington intended the phrase “personal effects” to

be interpreted broadly because he wrote “all my personal effects” rather than just

“personal effects.” However, in First M.E. Church, the testator used the language

“all personal effects of every nature, without restriction or limitation of any nature

whatsoever” and the court interpreted “personal effects” narrowly. Another

argument might be made that “personal effects” should be interpreted broadly

because Mr. Farrington did not have knowledge about the technical meaning of

personal effects since he did not consult a lawyer. However, due to the lack of

evidence of a contrary intention, the court will likely interpret “personal effects”

narrowly.

CONCLUSIONAny untitled pieces of the collection are likely to pass to Ms. Keenan

under the phrase “home and its contents.” “Home” is usually interpreted more

broadly than “house” and is generally understood to include all buildings and

appurtenances used in connection with the owner’s enjoyment of his home. The

museum is on the same plot of land as Mr. Farrington’s house and was intimately

connected to his enjoyment of the property. Titled personal property is

specifically excluded from the definition of “contents,” so any titled pieces of the

collection will not pass to Ms. Keenan. “Personal effects” is usually defined to

include only those things intimately connected with the person of the testator. Mr.

Farrington’s collection is unlikely to be included in this definition.

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