Rains v. . Osborne

WaleeR, J., after stating tbe case: Tbe charge of tbe judge is not in tbe record, and, therefore, we may conclude that it was satisfactory to tbe defendant, as there was no exception to it, so far as appears. We also may assume that it was in all respects correct, and that tbe jury was properly and fully instructed as to tbe law. Tbis being so, tbe only question before us seems to be whether there was any evidence for tbe jury that tbe plaintiff in tbis appeal was such a servant or employee as entitled him to a legacy under the will. We are necessarily called upon to construe tbe will of Mrs. Ricks, and especially item 12, under which plaintiff claims tbe legacy awarded to him by tbe verdict of tbe jury and tbe judgment of tbe court. That item reads as follows: “To any servant or other household employee who may be in my employment at tbe time of my death, I give and bequeath a sum equal to six months salary, and tbis clause shall be effective whether such person benefits under any other clause of my will, or any codicil thereto, or not.” What did the testatrix mean by the use of tbe words “To any servant or other household employee”? And to arrive at tbis meaning we must clearly understand tbe relation of tbe testatrix to those who were members of ber household. It is not disputed, but agreed, that Miss Lizzie Burkbardt, to whom a legacy was given by item I of tbe will, and who is frequently mentioned in tbe record and briefs of counsel, was not in tbe strict sense of tbe word a mere servant, whether that word be used in its legal or technical or in its popular sense, or as used in common parlance, but she was Mrs. Ricks’ friend and companion, and while she may have regularly per *607 formed some of tbe duties and chores of a servant, or even those of a menial kind, she yet was regarded and treated by Mrs. Eicks as socially her equal, and in this way and for this reason, she sought, and for a long time enjoyed, her 'companionship. Notwithstanding the fact that Miss Burkhardt also was employed to perform, and she did perform, various and sundry duties in and about the house, as an ordinary domestic servant would do, knowing the domestic life of these women as we do, and how they stood toward each other, and were regarded by each other, we can well understand why Mrs. Eicks resorted to the use 'of the words “or other household employee,” and in connection with the preceding words “To any servant,” as her object is manifest. She wished to favor her friend and daily companion by giving her a part of her large estate, but she wished also to avoid placing her in the attitude towards herself as an ordinary domestic servant. Her intention was, to be sure, that Miss Burkhardt should be rewarded for her faithful service and companionship, but, at the same time, to spare her feelings by excluding any, even the slightest suggestion, that she was to be regarded as a servant rather than as her friend and social equal, though performing-some of the duties of a servant in the household. Therefore, it was that the word “employee” was used in contradistinction to the word “servant.” Miss Burkhardt was brought into her home, not as a servant, but as a companion and associate, and not as a menial, though she may have made herself useful in other respects by attending to many of the duties of the household which servants generally perform. The expression “To any servant or other household employee,” with the above explanation, means the same thing as if it had read, “To any household servant or other household employee, etc., I give and bequeath,” the word “household” being clearly implied in the first part of the sentence as it is clearly expressed in the last. The very construction of the sentence shows this without any doubt, and that it was intended is plainly established even by the item itself, even considered apart from the other portions of the will but in the light of the evidence and admitted facts. But it is sufficient to say that the use of the word “other” was manifestly intended to describe one who was employed in the household, but not the same as or identical with, but different from a servant, who had been specified; not in the same class, though at times and on occasions doing household work of a like or even the same kind. The term “employee” was a milder type of expression, which more nearly and distinctly characterized the position held by Miss Burkhardt. But the words “other household” unfold the whole meaning of the item, for they unmistakably apply as well to the preceding word “servant” as they do to the word “employee,” so that the gift, according to the natural and *608 obvious interpretation of tbe language, is and must be to “any bousebold servant or other bousebold employee,” and as if it bad been so expressly framed by tbe testatrix. In 28 R. C. L., sec. 186, tbe proper rule of construction to be applied to a jibrase of tbis sort is stated as follows: “A rule frequently applied in construing wills is that, where certain things are enumerated, and such enumeration is followed or coupled with a more general description, such general description is commonly understood to cover only things ejusdem generis with tbe particular things mentioned. In such cases it is presumed that tbe testator bad only things of that class in mind. Tbe reason for tbe rule is that tbe adoption of tbe more comprehensive meaning would have tbe effect of rendering tbe superadded expression nugatory and make tbe testator employ additional language without any additional meaning.” If tbe words “other bousebold employee” are not to be given tbe effect of imparting to tbe previous word “servant” tbe meaning of “bousebold or domestic servant,” we have a case in which tbe testator used such additional words without clearly indicating any additional meaning. But while that is tbe rule, as contended by tbe defendant, and we have construed tbe will in accordance therewith, and not in tbe least departed from it, tbe plaintiff H. E. Constant’s duties in and about tbe bouse were such as pertain largely to bousebold work. Tbe cutting and bringing in of wood, taking care of tbe greenhouse, watering tbe flowers, mowing tbe grass on tbe lawn and raking it, storing tbe fruit in tbe basement of tbe mansion, dusting rugs, milking cows on tbe lot, moving tbe carpet, and such other services as be performed were as much bouse-bold duties, and were in some respects as necessary to tbe proper conduct and maintenance of tbe bouse and tbe convenience and comfort of its occupants or inmates as tbe services of tbe cook, maid, or other domestic servants or bousebold employees. Besides tbis, plaintiff slept in tbe servants’ bouse in tbe yard, ate in tbe servants’ dining-room, and was in all respects as fully treated and recognized as a bousebold servant as was tbe maid or tbe cook. Ve therefore think that tbe evidence was such as to warrant tbe court in submitting to tbe jury tbe question as to whether tbe plaintiff was embraced within tbe class of servants mentioned in item 12 of tbe will above quoted. We do not, therefore, hesitate to decide that tbe plaintiff has offered evidence sufficient to include him in tbe description of tbe persons who take legacies under item 12 of Mrs. Ricks’ will, if tbe jury believed that evidence and found tbe facts accordingly, which it appears that they have done, by their verdict, and, also, we believe that be was in tbe mind and contemplation of tbe testatrix when she wrote that item of hpr will, as one of her bousebold servants or employees. *609 Tbe question asked tbe witness as to a conversation be bad with Mrs. Ricks about bis son was not in itself incompetent, as it was a natural inquiry for a father to make of tbe person wbo employed bis son, and, at least, a part of tbe answer to it was competent. "Where this is tbe case, tbe objection should also be made to the answer, and specifically to tbe objectionable part of it, otherwise, if any of tbe answer be competent, though a part may be incompetent, tbe objection fails. S. v. Ledford, 133 N. C., 714. It was there held that “A general objection to evidence will not be entertained if such evidence consists of several distinct parts, some of which are competent and some not competent.” That decision has been since approved in numerous others by this Court. This being our conclusion, there is no error in tbe ease. No error.