¶1I respectfully dissent from the majority opinion in this case.
¶2The will involved (omitting formal parts; with italics mine) reads as follows: “That we, Dorman F. Steele and Florence R. Steele, husband and wife, being of sound and disposing mind and memory, and being desirous of arranging our worldly affairs in the event of our death, do hereby make, constitute and publish this our last will and testament, hereby specifically revoking any and all wills heretofore made by us or either of us: 1. It is our desire that upon the death of either of us he or she shall be buried in keeping with our station in life and according to our religious belief. 2. We desire, upon the death of either of us, to give, devise and bequeath to the survivor all the property, of every kind and description, real, or mixed, wherever situated, of which the deceased may die possessed, the said survivor shall serve as independent executor of this last will and testament without bond, and free of the control of the court, other than the probate of this will and the filing of an inventory as required by law. 3. If Dorman F. Steele survives Florence R. Steele, it is. hereby understood that Mrs. Edward Erwin her sister, shall inherit her personal belongings, such as two diamond rings, family pictures añil other personal belongings. 4. In the event that both of us die simultaneously, or within a short time of' each other from the same cause or accident, it is our desire that all the property, of' every character and description, wherever situated, of which we may die seized and,, possessed, with the exception of the note which we hold against the residence on* *887Poe Street against Robert Norman, Jr. which note we desire to be given to said Robert Norman, Jr., shall be divided in two equal parts, one-half shall go to Mrs. John S. Erwin, Florence R. Steele’s sister, and the other one-half of which shall go to Mrs. Betty Steele, mother of Norman F. Steele, The one-half inherited by Mrs. Betty Steele to be controlled and managed by Robert Norman, Jr. In the event that the said Mrs. Betty Steele shall predecease these testators, it is our desire that any share she might have received hereunder shall go to Mrs. R. O. Norman, Mrs. Alice Ramsey, sisters of Dorman F. Steele and Marshall Steele, brother share and share alike. 5. In the event that both of us die simultaneously, or within a short time of each other from the same cause or accident, we nominate and appoint Robert Norman, Jr. and John S. Erwin joint executors of this our last will and testament, without bond, with the provision that any transaction or disposition of said estate or revenue derived therefrom shall be signed by both parties. 6. It is our desire that if any of the beneficiaries hereunder shall seek to contest this our last will and testament, such contesting beneficiary shall take nothing hereunder, but any share heretofore given him shall go to the other beneficiaries hereunder in the proportions hereinbefore provided.”
¶3Florence Steele died December 23, 1947 and in January 1948, the will was duly probated.
¶4The trial was to a jury, but the district court, at conclusion of the testimony, sustained a motion for an instructed verdict for appellee and entered judgment on such instructed verdict construing the will to give to appellant Mrs. Erwin only diamond rings and family pictures .(which had ■ already been delivered or tendered to her by appellee).
¶5Appellants assigned eight points of error; those material to. this dissent were, in substance, as follows: Point 8 complains of the trial court’s excluding the testimony of Mrs. Roy Mahoney of declarations made by the deceased in the presence of appellee, her surviving husband, after the will was ■executed, to the effect that she had made her will and left the home to her husband and all her personal property to her sister Mrs. Erwin; and point 5, error in applying the rule of ejusdem generis.
¶6Appellee contends that paragraph (2) of the will is sufficient to show testatrix’ intent to give to appellee all property other than two diamond rings, family pictures, purely wearing apparel and those items of the same class as these particular items; that is to say that the rule of ejusdem gen-eris applies to the “her personal belongings” and “and other personal belongings” as used in the will; and excludes all classes of personal property other than the specific items named.
¶7The material question is whether or not the will was ambiguous and needed extraneous evidence as to its meaning.
¶8Appellants contend that because of the omission of the word “personal” between the words “real” and “mixed” in paragraph 2 of the will, the personal property of the deceased was not covered thereby; and, under the circumstances, the words “personal belongings,” used twice in paragraph 3 of the will, were meant by the testatrix to cover all personal property; see Stevenson v. Record Pub. Co., Tex.Civ.App., 107 S.W.2d 462, 464; and if not, then the will was ambiguous and she was entitled to introduce evidence from the witness Mrs. Roy Mahoney as to declarations made by the deceased in the presence of appellee after the will was executed; that such was, in fact, her intention at the time she prepared the will.
¶9While it is a rule in construing wills that every part of the will should be construed together, harmonized, and given effect if possible, and that the primary maxim in the construing of a will is to ascertain the testatrix’ intention; that.where the testatrix’ intention can be ascertained from the will itself, such intention must be given effect; it is also a settled rule that where the intention of the testatrix, with reference to the items of property covered by the provisions of the will, is not clear from the terms of the will itself, evidence of the surrounding circumstances which might assist the court in ascertaining the intention of the testatrix is admissible and should be *888admitted for such purpose. Russell v. Adams, Tex.Com.App., 299 S.W. 889, 894, syls. 4, 5, and 6. In that case the Commission of Appeals held: “We think the intention of the testator with reference to J. H. Bowman, Senior and Junior, is not clear from the terms of the will itself; that it was proper to introduce the surrounding circumstances in the case to assist in that way in construing the will. The lower courts found that the testator did not intend that this boy's debt should be a charge against his 100 acres. The record does not disclose any assignment attacking these findings. If that was the intention of the testator, then the lower courts should be affirmed.”
¶10If the will here is ambiguous, then the exclusion of the testimony of Mrs. Ma-honey was error.
¶11The use of the phrase "real, personal and mixed,” when referring to all property, in a will, is common practice. Verhalen v. Klein, Tex.Civ.App., 268 S.W. 975; 3 Stayton’s Annotated Texas Forms, p. 983, sec. 4461, “A Joint and Mutual Will.”
¶12“Real” property has a distinct meaning in law, well known to laymen and unnecessary here to again define. “Mixed” property has a meaning in law, but not so well known to laymen. It refers to property which is neither wholly “real” nor wholly “personal,” but which is a compound of both, — such as emblements, leases for years, fixtures attached to the realty, charters, deeds,- tombstones, pennants and other ensigns, coats of arms, heirlooms, etc. It has never been held to include “personal” property generally. 27 Words apd Phrases, Perm.Ed., page 407; In re Schemer’s Will, 215 Iowa 1101, 247 N.W. 532. “Personal” property also has ,a meaning well known to laymen. It is movable, unattached property. Blackstone defines it as composed of property in possession and property in action. Laymen ordinarily consider it any property other than real estate. The term “personal belongings” has been defined and construed in a number of cases to mean “personal property” when, in considering the will as a whole, it is apparent such was the intent of the testator. Ford’s Adm’r v. Wade’s Adm’r, 242 Ky. 18, 45 S. W.2d 818, 819, also reported in 80 A.L.R. 936, where a general annotation may be found. The main case states : “The definition of the noun ‘belongings,’ as given in 7 C.J. 1043, is ‘goods or effects,’ and we have seen that courts generally construe the word ‘goods’ as sufficiently comprehensive to include at least all personal property of the testator, and some courts adjudge it to embrace real property also; while we, in the Dickson Case, supra [Dickson v. Dickson, 180 Ky. 423, 202 S.W. 891, L.R.A. 1918F, 765], gave the same comprehensive application to the word ‘effects.’ ” See, also, 5 Words and Phrases, Perm.Ed., Belongings, page 305.
¶13Ejusdem generis means “Of the same kind, class, or nature. … The rule, however, does not necessarily require that the general provision be limited in its scope to the identical things specifically named. … The maxim ‘ejusdem generis,’ is only an illustration of the broader maxim, ‘noscitur a sociis.’ ” Noscitur a sociis is defined: “It is known from its associates. … The meaning of a word is or may be known from the accompanying words. … . Under this rule general and specific words, capable of analogous meaning, when associated together, take color from each other, so that general words are restricted to a sense analogous to less general. … Nonscitur ex socio, qui non cognoscitur ex se. * … He who cannot be known from himself may be known from himself may be known from his associate.” Black’s Law Dictionary, pp. 645 and 1256.
¶14This rule is not a general rule applicable in all cases. In Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 804, 127 A.L.R. 1217, our Supi'eme Court adopted the opinion of Judge Smedley, then Commissioner, which held: “ … the rule is generally thus stated: ‘General words following particular words, will -not include things of a superior class’. (Citing authorities.) By the same authorities attention is directed to the fact that the rule of ejusdem generis is merely a-rule of construction, an aid to interpretation when the intention is not otherwise apparent." (Emphasis mine.)
¶15*889From the will (paragraph 2) we find that the survivor takes “ … all property, of every kind and description, real■ or mixed, wherever situated … This is qualified, however, by paragraph 3, which provides that if' Mrs. Steele, the deceased testatrix, should die first,' then Mrs. Edward Erwin, her sister, inherits “… her personal belongings, such as two diamond rings, family pictures and other personal belongings.” (Emphasis mine.)
¶16If the omission of the word "personal” between the words "real” and “mixed” was intentional, then there would be no question that paragraph 3 would cover all personal property of deceased (her one-half interest in all community personal property). If not, then the rule of ejusdem generis would probably apply in paragraph 3 and limit appellants’ recovery to items of personal belongings in the same class as two diamond rings and family pictures.
¶17The words “real property” and “personal property” are generally understood by laymen, each term having a definite meaning.
¶18The term “mixed property” is not so generally known or used by laymen; and, when used by laymen, is presumed to be used in its legal sense.
¶19The word “belongings” is a word in general use by laymen; and to them, when used with reference to property, means “their belongings” or “property belonging to them.”
¶20“Belongings” is defined in New Century Dictionary as follows: “n. Something that belongs; pi., possessions-; appurtenances.” When used with the word “personal” in a will, as here, “personal belongings” -means those belongings which consist of personal property.
¶21In construing the will here: Did the testatrix mean by “personal belongings” all her personal property, or' did she mean to limit such “personal belongings” to items such as diamond rings and family pictures ?
¶22Construing the will as a whole, to ascertain the intention of the testatrix, the writer is of the opinion that since “personal” property was left out of the clause covering “real” and “mixed” property, and the wt>rds “personal belongings” used twice,— both before and after “rings” and “pictures,” the testatrix intended that “personal belongings” should cover all her personal property; and, therefore, the rule of ejus-dem generis does not apply; but he is reluctant to say, since a majority of this court has reached an opposite opinion, that the same is absolutely so. He therefore concludes that the will is ambiguous on this question, that there was a question of fact for the jury, and, therefore, the testimony of Mrs. Roy Mahoney (a sister-in-law of the deceased) was admissible to show the testatrix’ intention, as expressed by testatrix-in the presence of her husband (appel-lee) prior to her death; and that the exclusion of such testimony was reversible error.
¶23It may also be noted that the sister-in-law was neither an interested party nor a necessary party, under Art. 3716, Vernon’s Ann.Civ.St., Mitchell v. Deane, Tex.Com.App., 10 S.W.2d 717; see Note in 7 Texas Law Review 653.
¶24From what has been said, the writer is of the opinion that the judgment below should be reversed and the cause remanded to the district court for a new trial.