# Gilkey v. Chambers > Texas Supreme Court · January 28, 1948 · 146 Tex. 355 URL: https://www.frixlaw.com/law-library/cases/4898000 ## Case - **Full name:** T. O. Gilkey v. Nova Gilkey Chambers - **Court:** Texas Supreme Court - **Decided:** January 28, 1948 - **Citations:** 146 Tex. 355; 207 S.W.2d 70 - **Precedential status:** Published - **Opinion:** Dissent by Alexander - **Judges:** Alexander, Hickman - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4898000 ## How later opinions describe it (automated extraction) - holding that “personal property” included real property when it was evident from other facts that the testator intended “personal” to mean property that she owned individually rather than in partnership with her son ## Opinion text Mr. Chief Justice Alexander, dissenting. The sole question to be determined in this case is whether the will of Mrs. Gilkey purports to bequeath to her soffi, T. 0. Gilkey, her personal property only, or whether it also, 'devises to him her real property. The will is set out in full in jche majority opinion, and need not be repeated here. The only 'material portion of the will is as follows: / *363 “T. O. Gilkey owns a half inersí in all of the livestock, at my death. I will him all of my inersí in them, and all of my persnal property, as long as he lives.” It will be noted that the only property which the testatrix purported to bequeath to T. 0. Gilkey by this will was her one-half interest in the livestock “and all of my pers nal property.” The phrase “personal property” is defined as follows: “In broad and general sense ‘personal property’ includes everything that is subject of ownership not coming under the denomination of real estate.” Black’s Law Dictionary. “The estate or property that is not real, consisting in general of things temporary or movable.” Webster’s New International Dictionary. “Although popularly the term ‘personal property’ is used in a somewhat restricted sense to include only goods and chattels, tangible things, the subjects of personal use, in its broad and general sense it includes everything which is subject of ownership not coming under the denomination of real estate.” 50 C. J., p. 760, sec. 36. “Tangible or corporeal property is either realty or personalty, the word ‘real’ describing land and that which is annexed thereto, and the term ‘personal’ having reference to chattels, evidences of debt and chosen in action.” 33 Tex. Jur., p. 937, sec. 4. “A bequest of ‘personal property’ includes every form of personal property from whatever source it may be derived; that is, everything except real property.” Page on Wills, Vol. 3, Lifetime Ed., p. 44, sec. 964.” It will be observed that all of the above authorities exclude real estate or land from the definition of “personal property.” See also 32 Words and Phrases, p. 314. This definition of personal property has been settled by usage and sanction by text-writers and judicial decisions for more than two centuries. 42 Am. Jur. 204 . It is apparent, then, that the testatrix used apt words to limit her bequests to T. 0. Gilkey, and the words used necessarily exclude the idea of a bequest of land or real estate. Whatever ambiguity there may be in the will in other respects, it is, in my opinion, clear beyond doubt that it purports to bequeath to T. 0. Gilkey personal property only. There fe nothing in the face of the will to create any ambiguity in this respect. The will does recite that the testatrix’s son owrís a half interest in the livestock and that she *364 wills to him her interest therein, but this is nothing more than an acknowledgment that she was not the sole owner of the livestock; that she owned only a half interest therein, and that her interest was willed to him. Certainly there is nothing in this language which by any sort of liberalism could be construed to cover real property. The statement that “all of the property must go back to the Gilkey heirs” upon the death of Maud Gilkey, clearly refers only to the property previously covered by the will. The testatrix is presumed to have understood her language. Where a testator uses words having a definite legal signification, he will be presumed to have used them in that sense, unless a clear intention to the contrary is apparent upon the face of the will. 69 C. 7. 76. In the case of Avis v. First National Bank of Wichita Falls, 141 Texas 489 , 174 S. W. (2d) 255 , this Court said: “Another rule in the construction of Wills, which merits serious consideration, is stated by Corpus Juris, voJ. 69, p. 80, Wills, sec. 1136, as follows: “i: * * where the meaning of the language used in the will has been settled by usage and sanctioned by judicial decisions, it is presumed to be used in the sense that the law has given to it, and should be so construed, unless the context of the will shows a clear intention to the contrary’.” The only protection which a testator has against having his will tampered with or misconstrued after his death is to couch it in language with well-established meaning. This is what this testatrix did in this instance, and her will should be construed as written. The fact that the testatrix was uneducated does not alter the case. She succeeded in using language with well-established meaning oh this occasion, and she is entitled to have her will construed accordingly. The Court should not, under the label of liberalism, place a construction on the words of her will entirely different from their well-established meaning, and thereby thwart her purpose as expressed by her. The trial court permitted three witnesses to testify that on three different occasions prior to the execution of the will, and wholly disconnected therewith, they had heard Mrs. Gilkey «se the expression “personal property” to refer to the property (both real and personal) owned by her individually, • as distinguished from that owned jointly by her with others. It was upon this testimony the trial court held that the will- "bequeathed to T. 0. Gilkey all of Mrs. Gilkey’s property, both real and personal. / *365 It is well settled that where words which have a well-established meaning are used in a will, extrinsic evidence is inadmissible to show that the testator habitually attached a different meaning thereto. Page on Wills expresses the rule as follows: “In determining the testator’s intention, the true purpose of the inquiry is to ascertain not what he meant to express apart from the language used, but what the words he has used do express. Accordingly, when there is no dispute as to what words were written in the will, it is a fundamental principle that extrinsic evidence can not be received to show that the testator intended something outside of, and independent of such written words, to add words to those in the will, to contradict its language, or to take words away from those in the will, even though the court may believe that the actual disposition of the testa-tator’s property which results through changing circumstances was not contemplated by him.” Page on Wills, Yol. 4, Lifetime Ed., pp. 622-625, sec. 1617. “If a testator uses words which have a common, general, and unambiguous meaning, evidence of the special meaning which he actually attaches to such words is inadmissible, as are his declarations to the effect that he uses such word with such meaning.” Page'670, sec. 1626, Id. “Extrinsic evidence may not be received for the purpose of increasing, diminishing, or varying the estate or interest given by an unambiguous will, or to vary the legal effect of the language used.” Page 642, sec. 1621, Id. Schouler on Wills says: “No extrinsic evidence, oral or written, to show that the testator habitually or when he executed that particular will used words in some peculiar, inexact, or popular sense, can be adduced for diverting words and phrases from the meaning which the language of the instrument affords unaided, or even for confirming the court in its opinion of what was truly intended; supposing of course that an appropriate gift is found “in the will itself which makes good sense when applied to its surroundings.” Vol. 1, p. 746, sec. 570. See Hunt v. White, 24 Texas 643 ; Haupt v. Michaelis (Com. App.) 231 S. W. 706 ; Adams v. Maris (Com. App.), 213 S. W. 622 ; Hagood v. Hagood (Civ. App.), 186 S. W. 220 (writ refused) ; Hocker v. Piper ,Civ. App.), 2 S. W. (2d) 997 (writ refused). *366 If the rule were not as above stated, a testator would have no protection against perjury. The very purpose of requiring a will to be in writing is to enable the testator to place it beyond the powers of others, after he is dead, to change his will or show that he intended something different from that expressed in the will. Where he chooses language with well-established meaning to express his will, as was done in this instance, it is not permissible, after he is gone, to show that he meant something different from that expressed in the will. It is argued that there is a presumption against partial intestacy, and if this will be construed as covering the testatrix’s personal property only, it will render her intestate as of her land or real property. It may be conceded that there is a presumption that the testatrix did not intend to die intestate as to part of her estate. But a presumption may be invoked in the construction of a will only where the will is by its own terms ambiguous. 69 C .J. 132. Such a presumption has no place and cannot be invoked for the purpose of importing ambiguity. It cannot be invoked to vary the express language of a will. Kostroun v. Plsek (Com. App.), 15 S. W. (2d) 220 . It will not authorize the making of a new will by the court nor the inclusion of other property that cannot be brought within the terms of the one made by the testatrix. Coleman v. Jackson (Civ. App.), 126 S. W. 1178 (writ refused). There is no ambiguity in the terms of this will as to the character of property bequeathed thereby, and therefore there is no ground for invoking a presumption for partial intestacy. Moreover, there is a presumption of equal force that the testatrix did not intend to disinherit her heirs at law or next of kin, but intended that her property should go in accord with the laws of descent and distribution. 69 C. J., p. 97, sec. 1149; 28 R. C. L., p. 229, sec. 190; 44 Tex. Jur., p. 703, sec. 145, p. 735, sec. 170, p. 746, sec. 181; Darragh v. Barmore (Com. App.), 242 S. W. 714 ; McMullen v. Sims (Com. App.), 37 S. W. (2d) 141 ; McDonald v. Ledford 140 Tenn. 47 , 205 S. W. 312 . The testatrix was survived by four grandchildren, who were the children of a deceased son. It is a matter of common knowledge that frequently a grandparent’s love for his grandchildren is as great as is the parent’s love for his -Own children. The testatrix bequeathed her personal property only to the son who survived her and to his wife so long as either of them lived. We do not know why she favored her son and daughter-in-law over her grandchildren in the disposition of her personal property, nor do we know why she limited the be *367 quest to personal property only. Presumably she had reasons satisfactory to herself for so doing. She may have intended that her grandchildren, who were her lawful heirs, should share immediately in the partition of her real estate. If we alter her will so as to make it include not only the personal property as provided by its terms, but her real estate as well, we will thereby cause her practically to disinherit her grandchildren, by forcing them to forgo participation in the use of the property until the deaths of both T. 0. Gilkey and Maud Gilkey. We should not indulge such a presumption contrary to the unambiguous terms of the will. In my opinion the interpretation of the will as construed by the Court of Civil Appeals is correct. Justices Smedley, Brewster, and Folley concur in the DISSENT. Opinion delivered December 10,1947. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4898000. Public record. Not legal advice.