Court Holds That Testatrix Died Partially Intestate And That The Term “Personal Effects” In A Will Did Not Include Real Property

Originally published by David Fowler Johnson.

In In re Estate of Ethridge, a testatrix signed a will that provided that “all my personal effects” would be devised to her nephew in law and that her half interest in a home went to another person. No. 11-17-00291-CV, 2019 Tex. App. LEXIS 9564 (Tex. App.—Eastland October 31, 2019, no pet.). The trial court concluded that the term “all my personal effects” did not include all of the testatrix’s property other than the home, and that she died partially intestate. The nephew in law, who had argued to the contrary, appealed.

The court of appeals described the commonly understood meaning of “personal effects”:

Personal effects has customarily been defined narrowly as a subset of personal property. Estate of Neal, No. 02-16-00381-CV, 2018 Tex. App. LEXIS 120, 2018 WL 283780, at *4 (Tex. App.—Fort Worth Jan. 4, 2018, no pet.) (mem. op.). The term generally refers to articles bearing intimate relation or association to the person of the testator. Id.; see also Dearman v. Dutschmann, 739 S.W.2d 454, 455 (Tex. App.—Corpus Christi 1987, writ denied) (explaining that “personal effects” are “articles of personal property” that bear an intimate relation to a person, such as “clothing, jewelry, and similar chattels”); Teaff v. Ritchey, 622 S.W.2d 589, 591-92 (Tex. App.—Amarillo 1981, no writ) (defining “personal effects” to include items such as “clothes, toilet articles, eye glasses[,] and dentures”); First Methodist Episcopal Church S. v. Anderson, 110 S.W.2d 1177, 1182 (Tex. App.—Dallas 1937, writ dism’d) (finding “personal effects” to mean “articles pertaining to or associated with the person of the deceased, such as wearing apparel, luggage, jewelry, and the like”). “[W]here 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.” Stephens v. Beard, 485 S.W.3d 914, 917 (Tex. 2016) (alteration in original) (quoting Mitchell v. Mitchell, 151 Tex. 1, 244 S.W.2d 803, 806 (Tex. 1951)). As was the case in Stephens, Mildred’s will does not clearly demonstrate an intent to use “personal effects” contrary to its well-settled legal usage. See id.

Id. The court held that mineral interests do not fall within the typical definition of personal effects. The court held “it does not appear that Mildred intended ‘personal effects’ to include any of her real property.” Id.

The court held that because the testatrix’s will did not contain a residuary clause, it failed to dispose of all of her property and she died partially intestate. The court held that the following presumption did not apply: “[t]he mere making of a will is evidence that the testator had no intent to die intestate and creates a presumption that the testator intended to dispose of his entire estate, and that he did not intend to die intestate as to the whole or any part of his property.” Id. Finally, the court affirmed the trial court’s finding that the nephew in law had improperly taken possession of assets of the estate.

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