Matter of Estate of Schmidt , 1981 Colo. App. LEXIS 905 ( 1981 )

TURSI, Judge,

dissenting:

I respectfully dissent.

In addition to the provisions of the will set out verbatim in the majority opinion there is the following provision:

“ARTICLE VII

RULES AND DEFINITIONS

C. Article and Paragraph Titles. The underlined article and paragraph titles are for convenience only and shall not affect the meaning of the language of this will.”

When this definition is read together with Article II-B giving to Emogene Blake all items of personal property of the testatrix which Ms. Blake may choose provided she survived the 30 days, it evidences the intent of the testatrix to use personal property in an unmodified sense.

Further, the definition of tangible personal property as contained in § 15-11-513, C.R.S.1973, excludes “money, evidences of indebtedness, documents of title, and securities, and property used in trade and business” only when to be disposed of by memorandum. Thus, Blake’s contention is supported by the inclusion of the word tangible as used with disposition by memorandum in Article II-A.

I would reverse and remand with directions to enter judgment in favor of Blake.