The opinion
YOUNG, Justice
(dissenting).
To my mind, the majority has written a will , for Mrs. Gilkey that this unlettered country lady did not even dream of, much less outline on paper, by assigning a legalistic or technical meaning (and that meaning alone) to the word “persnal.” Notwithstanding the strong presumption against intestacy and that, from the mere fact of making a will, the testator has presumptively disposed of his entire estate, the majority, by this rigid interpretation of the words “persnal property,” and the exclusion of surrounding facts and circumstances, has arrived at the following result: (1) That Mrs: Gilkey «died intestate as to 67 percent of he'r property (all lands); (2) that aside from the mention of testatrix’s “inerst” in live stock, the will passes to her only son no more than a life estate in personal property, such as farm implements, household goods, a note, a $47.50 bank balance, etc., including a debt against appellants of $125; the wife, *862 Maud Ball Gilkey, succeeding thereto if she survives him; the remainder interest in this unique estate then going back to the “Gilkey’s heirs.”
On the other hand, pertinent extrinsic evidence disclosing that Mrs. Gilkey had always used the expression “personal property” as meaning property personal to her, the trial court correctly interpreted the word “persnal” in the sense this farm lady was accustomed to use it, thereby giving her will an entirely rational construction and effectuating a disposition of all property, real and personal, in full accord with her undoubted wish and desire.
T. J. Gilkey, husband of testatrix, predeceased his wife, dying without a will or administration of estate. Mrs. A. L. Gilkey had two children, T. O. Gilkey, ap-pellee, and Roy Gilkey who survived his father but died before his mother, the testatrix. Surviving Roy were his wife, who has remarried, and four children, all appellants herein. After death of Roy Gil-key, his widow and children moved away from Forney, Kaufman County, where they had lived; T. O. Gilkey, appellee, continuing to live near his mother, they jointly owning live stock. He and his wife, Maud Ball Gilkey, helped the mother in business affairs and were kind, considerate and attentive to her. Following the death of Mrs. Gilkey on January 18, 1939, T. O. Gilkey qualified as executor of her estate without bond through the Probate Court of Kaufman County, where administration is now pending. Those who had known testatrix for many years referred to her as a “very peculiar woman.” They would say that she did not and would not understand the technical terms used in law.
The following oral testimony, in substance and effect, was admitted by the trial court as having a bearing upon her use of the term “persnal property” in said will: Carl Senter, Forney banker with whom Mrs. Gilkey dealt in financial matters, recalled an instance when she was buying a brick building there, borrowing money for the purpose. It was explained that she should give a deed of trust as security, whereupon testatrix protested, mentioning the fact that she owned personal property in excess of $30,000. Witness knew that her personal property, technically speaking, at the time was inconsiderable; and, “I knew that when-she said her ‘personal property’ she meant everything she had * * *;” also stating that in conversations with her, “as she referred to certain parts of all her real estate, she called it ‘personal property.’ ” John Boles, Forney merchant, in renting a brick building from Mrs. Gilkey, distinctly remembered that she referred to it as her “personal property.” Joe Elliott, lumber man, likewise testified to another occasion when Mrs. Gilkey was remodeling a store building, he furnishing the material, his testimony being, in part: “Q. And you asked her how to charge the account? A. She said ‘That Í9 my own personal property, charge it to me.’ I know she said that was her own personal property, because I knew it was kind of an odd expression, she was kind of a peculiar woman herself, but she knew what she wanted all right.”
In ruling out the testimony just mentioned, the majority proceeds upon an entirely erroneous basis: First: That intent is thereby sought to be established independently of the will; in other words, as a showing of what the testator intended to say, but did not; whereas, the testimony of witnesses Senter, Boles and Elliott bears directly on language contained in the will, and is receivable for the purpose of showing the sense in which the expression “persnal property” was used. Extrinsic evidence is, as a general rule, admissible to enable the court to arrive at a proper understanding of words used in the will; that is, to discover the sense in which the terms are employed and to apply them to the particular facts of the case. Hunt v. White, 24 Tex. 643 ; Adams v. Maris, Tex.Com.App., 213 S.W. 622 ; Jackson v. Templin, Tex.Com.App., 66 S.W.2d 666 , 92 A.L.R. 873 ; Avis v. First National Bank of Wichita Falls, 141 Tex. 489 , 174 S.W.2d 255 . Second: The majority has assumed that the term used by testatrix, “persnal property,” is a compound noun, with a meaning inflexible and unyielding, and referable only to property *863 other than real; whereas, the word “personal”, used in the same connection as an adjective, very definitely means property belonging to the person, — in this instance, the testatrix. Vol. 2 Bouvier’s Law Dictionary, Rawls’ Third Revision, p. 2576; Webster’s New International Dictionary, Second Ed. As a subject of judicial construction, the will of an unlettered testator, written by himself, is, perhaps, the most informal of all instruments. And whether Mrs. Gilkey used the expression “per-snal” property in the technical sense, or attached thereto another and more consistent meaning, was undoubtedly for determination, if possible, by use of extrinsic evidence. Prof. Wigmore, Evidence, 3rd Ed., vol. 9, § 2460, in discussing the standard of interpretation in “the association between words and objects,” considered with reference to the persons fixing that association, sets up four possible classes: (1) standard of the community, or popular; (2) local; (3) mutual; and (4) individual. Under sec. 2467, subject “Wills”, he says: “But a unilateral act may be interpreted by the individual standard of the actor; * * * that is, after resorting to the ordinary sense of words, and the local sense of words, for provisional assistance, we are still entitled to supplant all these by the individual usage, if it appears to have been different from the others. The will is the typical and almost the only instance of a unilateral act. The sense of the testator is therefore to be the ultimate criterion of interpretation: * * * This principle is today universally conceded.”
The majority concludes that the language of this testamentary instrument is in all respects clear, plain and unequivocal. To the contrary, upon close study of the will alone, the ambiguities are so numerous as to almost result in the status of no will at all. Without going beyond its “four corners”, appellee’s counsel suggest at least the following prima facie ambiguities: (1) What interest is T. O. Gilkey given in the live stock — full title or only a life estate? (2) Since live stock is personal property, in the technical legal sense, what did the testatrix have in mind in bequeathing “all my persnal property,” when she had already passed to T. 0. Gilkey her interest in the live stock? (3) What does Maud Ball Gilkey take, under the will, since nothing is given to her specifically, the will merely providing as to whom “all of the property” shall go on her death if she outlives her husband? (4) To what property does the testatrix refer in saying that on the death of Maud Ball Gilkey “all of the property” must go back to the Gilkey’s heirs? Does she mean the live stock or the personal property, or both? Or, is there some other property (her lands) that the testatrix had in mind? (5) Who are the Gilkey’s heirs? Are they the heirs of T. O. Gilkey and Maud Ball Gilkey, or either of them? Are they the heirs of testatrix and her deceased husband, or either of them? (6) As of what date are the Gilkey’s heirs to be determined? Does testatrix mean (a) the date of her husband’s death? (Roy Gilkey was then living and his widow would take an interest.) Or (b) at the date of her own death? (Then T. 0. Gilkey has a vested remainder after his life estate and the surviving widow of Roy Gilkey has no interest.) (c) After death of both T. O. and Maud Ball Gilkey? (Then the remainder would not vest in anyone until they both died.) (7) What does testatrix have in mind in impressing a life estate upon her “persnal property”, since life estates in choses in action, bonds, securities and monies are not favored? Darragh v. Barmore, Tex.Com.App., 242 S.W. 714 . (8) What did testatrix mean by saying that “all of the property” must “go back to the Gilkey’s heirs” ? Whoever they are, they never owned it and it cannot go back. (9) What did Mrs. Gilkey mean by “inerst” and “persnal”? There are no such words in the English language. How is it so clear and unequivocal that she intended to use them in a technical, legal sense when (with all respect) she cannot even spell the words?
I submit that the trial court was amply warranted in admitting the evidence objected tr (inventory, appraisement and foregoing oral testimony), because of the ambiguities, both patent and latent, above suggested. “When the will is ambiguous, or when its terms are doubtful or uncer-
*864 tain, so that the intention of the testator cannot be clearly ascertained therefrom, parol evidence is admissible to aid in the interpretation — that is, to assist the court in ascertaining the testamentary intent and in determining the meaning of words used. Similarly when the terms of the will, standing alone, are definite and certain, the existence of a latent ambiguity may be shown by parol evidence and the ambiguity may be removed by evidence of like character.” (Emphasis mine.) 44 T.J., § 184, pp. 749, 750. The same text (44 T.J.) cites numerous decisions where comparable outside facts were considered under our liberal rule of construction in cases of wills: p. 741: “* * * The court may take into consideration the fact that the instrument was prepared -by a person shown to have been unlearned in the law, or by one who was not only ignorant of law but also of the correct use of language”; pp. 757, 758: “But parol evidence will not be excluded merely because it has a tendency to vary the ordinary or technical meaning of a word”; pp. 721, 722: “It is a general rule that technical words and phrases will be accorded their proper technical meaning. But this rule is relaxed in ascertaining the meaning of the terms used in wills to a greater extent than in the construction of other documents. -In construing technical words, the inquiry is directed to the question whether the testator intended to use' them in a technical or nontechnical sense. Certainly they will not be construed in a technical sense when such a construction would be unreasonable or would result in the testator’s having done a useless thing”; p. 723: “But words which have both a legal and popular meaning may be construed in the latter sense, when it appears that the testator so intended.” See sec. 160, pp. 723, 724, where a legal meaning was not attributed to legal words and phrases; for instance, in Baker v. Johnson, Tex.Civ.App., 64 S.W.2d 1037 , separate property was held to mean community property. Similarly, in many cases, the word “heir” has been interpreted as in the language of laymen rather than in a technical sense; e. g., Federal Land Bank of Houston v. Little, 130 Tex. 173 , 107 S.W.2d 374 , where I quote from the opinion of Judge Smedley: “Looking to the circumstances under which the will was executed to discover the meaning attached by the testator to the word ‘heir’ used in the will, we find: The will apparently was not made by one learned in law. J. D. Little had only a common school education and doubtless did not understand the full import of the word ‘heir’ in the technical sense. * * * The prevailing inclination has been away from the application of a technical rule and to the ascertainment of the true intention of the testator. Accordingly, when we are asked to give the word ‘heir’ a technical meaning, the natural, and we think proper, inquiry is, Did the testator intend to use the word in its technical sense? To paraphrase the often quoted language of Chief Justice Wheeler in Hunt v. White, 24 Tex. 643, 652 , the intention of the testator must be ascertained from the meaning of the words in the will and from those words alone, but in order to discover the meaning attached by the testator to the words used and to apply them to the particular facts in the case, the law admits extrinsic evidence as to the situation in which the testator was placed, the state of his family, his property, and other circumstances relating to himself individually and to his affairs.” (Citing authorities.)
In American Law Report Annotations (Vols. 137, p. 212, 162, p. 1138) are collected cases from California, New Jersey, New York, Pennsylvania, Maryland, Indiana and Ontario, all holding that personal property may include real property when used in a will, and that the sense in which the testator made use of the term should control in determining what passed thereunder as “personal property.” Thus in Re Olsen, 1935, 9 Cal.App.2d 374 , 50 P.2d 70 , real property was held to pass under a provision of a holographic will drawn by a testatrix of foreign birth and unfamiliar with the English language, bequeathing all her “personal property”, since such construction would prevent partial intestacy and would carry out the evident intent of the testatrix. In re Kavanagh, 1928, 133 Misc. 399 , 232 N.Y.S. 308 , a testator own *865 ing real and personal property, by his holographic will gave to his wife all “personal property” but made no mention of his realty; the court finding that an ambiguity existed as to the thing intended to be described and that the testator intended the term personal property to include his real estate.
It will be observed that nowhere in the will is realty or real estate mentioned, nor any residue of estate; thus emphasizing the relevancy of particular testimony (Carl Senter) that when testatrix spoke of “per-snal” property, “she meant everything she had.” But Mrs. Gilkey’s accustomed use of the term is inadmissible, say the majority; and technical construction is thereby resorted to in the conclusion that in drafting this most important document, the lands that must have given her the greatest thought and concern throughout life were not even in mind. And that the construction given is “unreasonable and would result in testatrix’s having done a useless thing,” is admitted in the statement (majority opinion) that “whether or not her will passed a life estate only in personal property which is not susceptible to such an estate, is wholly immaterial.” (Emphasis mine.)
Surely it cannot be conclusively said that Mrs. Gilkey used the expression “persnál” property in the legalistic sense, when she cannot spell the word. There can be no doubt that when the will and extrinsic evidence are examined, this testatrix was using the term in the sense of property she owned personally; at the same time making it clear that she was not undertaking to involve her deceased husband’s interest in the unpartitioned community.
In construing a will, the testator’s intention is our first concern, and intention controls construction. Bittner v. Bittner, Tex.Com.App., 45 S.W.2d 148 . In the instant case, and to that end, the extrinsic evidence above discussed is clearly admissible. The trial court’s construction of this will, making testamentary disposition of all property owned by Mrs. Gilkey, should be sustained.