Cook v. Weaver

• Decision Date: 31 August 1852
• Docket Number: No. 13.,13.
• Citation: Cook v. Weaver, 12 Ga. 47 (Ga. 1852)
• Parties: George W. Cook, plaintiff in error. vs. Travis A. D. Weaver, defendant in error.
• Court: Georgia Supreme Court

12 Ga. 47

George W. Cook, plaintiff in error. vs. Travis A. D. Weaver, defendant in error.

No. 13.

Supreme Court of the State of Georgia

AUGUST TERM, 1852.

Trover, in Upson Superior Court. Tried before Judge Stark, May Term, 1852.

This was an action of trover, brought by George W. Cook, against Travis A. D. Weaver, for the recovery of a negro man slave named Ben.

On the trial, the plaintiff read in evidence the last will and testament of Samuel Cook, admitted to probate in the Court of Ordinary of Jones County, on the 1st day of September, 1828, which " will" contained the following clauses:

" My will is, my wile Sarah E. Cook, after my death, shall have two negroes, Amy and Ben, during her life; and after her death, to go to my youngest son, George Wm. Cook; and that my wife continue to live where she now does, and have charge of the place and negroes, belonging to the two youngest sons, Samuel and George W. Cook, which negroes I will hereafter name; and she shall have all the profits arising from said lands and negroes, during her natural life or widowhood; and at her death or marriage, she nor her future heirs, shall have no claim to any thing of mine whatever.

Provided my wife Sarah, shall at the same time, maintain, clothe and educate my two youngest sons, Samuel and George, and keep them at school, or studying some profession, until they arrive at age; and any profits arising above the maintenance is hers, provided at the same time, there shall not be more than two acres of land cleared on the place per year, nor more timber cut upon the land, than will keep up the outside fences.

My will further is, that my family keep as much together as possible, and that my carriage and horses be kept for the use of my family as it is advantageous to the family as long as considered so by my executors. And my will further is, that my farm be from one-third to one-half sowed in small grain every year, and that my wife keep her two mules, Jinny and Pompey, for the good of the farm, together with all the necessary stock on the place for the use of said place, and she is not permitted to teach a school or keep a boarding house, further than to teach and board my own children, and whenever she marries again, she has no claim whatever.

She shall keep all the household furniture, necessary for the house and family. And at the time Samuel P. Cook becomes of age, the said house and land where I now live, shall be equally divided by lot, sale, or otherwise, between him and George W. Cook, and my wife Sarah E. Cook, have no further claim on Samuel P.\'s part, but look to George W. for the balance of her maintenance.".

" Item 8th. I give to my son, George W. Cook, four negroes, to wit: Sam Reizer, Jane, Hall and Sarah; and at his mother's death, two more, Amy and Ben. And when he becomes of age, ho is to have half of the land and plantation where I now live, his mother having her life time on his part, provided she don't marry."

It appeared in evidence further, that, after the death of Samuel Cook, his widow Sarah E. Cook, took possession of the negroes, Ben and Amy. They were afterwards sold by the Sheriff of Jones County, by virtue of executions against Mrs. Cook, when the defendant in error became the purchaser of Ben.

Mrs. Cook subsequently intermarried with one John W. Shrapshire. George W. Cook arrived at full age in 1849, and instituted this action for the recovery of the negro man Ben.

Judge Stark, on the trial, held and charged the Jury, that under the will of Samuel Cook, his widow Sarah E. Cook, took a " life estate" in the negroes, Amy and Ben.

And this decision is assigned as error.

Worrill, for plaintiff in error.

O. C. Gibson, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

The proper construction of this will is not free from doubt or difficulty, that is, whether Samuel Cook, the testator, intended his wife Sarah E. Cook, to have the two negroes, Amy and Ben, during the term of her natural life, or for her widowhood only. This is the only question for our consideration.

Take separate clauses in the will, and a plausible, not to say a probable interpretation, may be deduced in favor of either view of it. For instance, suppose we wish to establish that he infended his widow to have this property during her natural life. In the first clause of the will, he gives these two slaves express-ly to her, during her life; and at her death, to go his youngest son, George W. Cook;...