Cook v. Ellington

• Citation: 59 N.C. 371,6 Jones 371
• Parties: JOHN P. COOK and another v. JOHN F. ELLINGTON, Adm'r.
• Decision Date: 30 June 1863
• Court: United States State Supreme Court of North Carolina

6 Jones Eq. 371

59 N.C. 371

JOHN P. COOK and another

v.JOHN F. ELLINGTON, Adm'r.

Supreme Court of North Carolina.

June Term, 1863.

Whether the word, “wish,” in a will, was intended to create a trust, discussed. This case was decided upon the peculiar phraseology of the will.

CAUSE removed from the Court of Equity of Wake county.

Joseph F. Cook, in March, 1862, by his last will and testament, bequeathed and devised as follows: “Fourthly. I give and bequeath to my beloved wife, Tranquilla Cook, the following property and money: First. I give her all my negroes and their increase, few or many, and all the money I may have at my death, and also all that may be due me on bonds and notes, and my wish is, that at her death, she will give the one half of all I give her, and the increase of my negroes, to my brother, John P. Cook, and Mary A. Terrill.

“Fifth. I lend to my said wife, Tranquilla Cook, during her life-time, all of my lands, containing eighteen hundred and ninety one acres, more or less, and at her death, I give said land to my brother, John P. Cook.

Sixth. I give all my stock of horses, mules, cattle, hogs, sheep, corn, fodder, wheat and oats, that I may have at the time of my death, to my said wife, Tranquilla Cook; also, my household and kitchen furniture, farming tools, carriage, blacksmith's tools, wagons and carts.”

On the next day he added to his said will this codicil: “I desire that my wife, Tranquilla Cook, shall have all the crop of cotton that I may have on hand at the time of my death, and also, I desire that the increase of the slaves, mentioned in the 4th clause of the above will and testament, shall be construed to mean one half of the increase as well as the other property, named in the said clause of said will and testament, which I wish my wife, Tranquilla Cook, to give to my brother, John P. Cook, and my sister, Mary A. Terrill, and I have to this codicil, which I wish to be taken and construed as a part of my will, set my hand,” &c. The executor, named in the said will, having renounced the trust, the defendant, Ellington, was appointed administrator, with the will annexed, and Mrs. Tranquilla Cook having lately died intestate, the defendant also administered on her estate, and took into his possession the whole of the property lately in her possession, including the whole of that embraced in the 4th clause of the said will.

This bill was filed against him, praying for a decree, that he may be declared a trustee for the plaintiffs of one half of the property and one half the increase, mentioned in the said 4th clause of the said will, and that he account and pay over to them their said share. To this bill, the defendant demurred, and the cause was set down for argument on the demurrer and sent to this Court by consent.

Moore, for the plaintiffs .

K. P. Battle and R. H. Battle, Jr., for defendant .

PEARSON, C. J.

In cases of this kind, very little aid is to be derived from “the books,” except in regard to the general principles which have been established, for all depends upon intention, and no two wills are ever precisely alike: although the meaning may be the same, there will be a difference in the words used, and a difference in the relations of the members of the family, or other circumstances, having a material...