Cook v. Weaver , 12 Ga. 47 ( 1852 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] 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, oi 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 intended his widow to have this property .during her natural life. In the first clause of the will, he gives these two slaves éxpressly to her, during her life; and at her death, to go his youngest son, George W. Cook; and in the eighth item, at the close of the will, the same disposition is, made, by implication at least. For after giving to his son George'W. four other negroes, which are mentioned by name, he adds, “and at his mother’s death, two more, Amy and Ben.”

With these clauses alone before us, isolated from the rest of the instrument, there would seem to be no doubt of the testator’s intention to bequeath to his widow this property during her life.

Now, on the other hand, to show that the testator designed limiting his bounly to her during her widowhood only, we will extract other passages from this will. At the close of the very first item, we find this strong language: “And at her death or marriage, she nor her future heirs shall have no claim to any thing of mine whatever.” Indeed, it seems hard to hold, in the teeth of a declaration so explicit, that the widow should take any thing more than a life estate in any of the property of the deceased, determinable upon her marriage. But this is not all. In support of the same idea, we find in a subsequent part of the will, this clause: “ And whenever she marries again, she has no claim whatever.”

[2.] Here, then, I repeat, are parts of the instrument which, if they stood alone, would seem clearly to sustain either construction which is sought to be put upon it. It becomes our duty then, to seek, through the whole paper, for the testator’s intention, and to carry that intention into effect, provided it can be done without violating any rule of law.

[3.] And I will here take occasion to remark, that is in vain to look to the books for precedents to aid us in arriving at a correct conclusion as to the intention of the testator. This duty must be performed by every Court for itself, in each particular case.

After scanning this testament carefully, we believe that it was the intention of the testator, that his widow’ should have and hold Amy and Ben, for and during the term of her natural life. In the first place, he expressly gives these two slaves to her during her life, with remainder in fee to his son George. In the last item of the will, the same disposition with which he set out, is distinctly repeated and recognized.

In the second place, in every part of the will, where the marriage of his widow is looked to, as the period beyond which her interest under the will will not survive, other property is given, having no connexion, however, with Amy and Ben. For instance, the emphatic language which I have already cited, that “ at her death or marriage, she nor her future heirs, shall have rio claim to any thing of mine whatever,^” follows immediately that provision which the testator makes for her to continue to live on the land, and to have charge of the plantation and negroes, belonging to the two youngest sons of the testator, Samuel and George W. and wherein he bequeathed to her all the surplus profits after maintaining and educating these two sons. And this gift is coupled with the expression which precedes the general clause of exclusion, in these words: “ And she shall have all the profits arising from said lands and negroes, during her natural life, or widowhood.” And -then follow’s the broad declaration, that at her death or marriage, neither she nor her’s, should have any thing further of his.

And again, before introducing the next general clause of exclusion, he directs that the family be kept together as much as possible; that a carriage and horses be retained for their use; directs the mode of cultivating the farm, as to division of crops, and desires that his wife’s two mules, Jenny and Pompey, remain on the plantation, together with all the necessary stock, and then he subjoins as before: “ And whenever she marries again, she has no claim whatever.”

And finally, in the eighth item, we find this same uniformity of purpose manifested. For after devising to his son George W. half of the land whereon he lived, he gives to 'his mother a lifetime interest in this moiety: “provided she don’t marry.”

We see then, that it is only in connexion with other interests, bequeathed to his wife in the will, that the limitation to her widowhood appears to be annexed ; but in that relation to Amy and Ben, no such purpose is indicated. If such was the meaning of the testator, why did he not say so ? Why did he not affix marriage, as a limitation to the gift of these slaves, as he did to every other interest ? To put this construction upon the gift of Amy and Ben, why did he make it necessary to transpose the clause in the will, to change their collocation ? How natural, that the testator should in the first item, if such was his intention, have said that, “ it is my will that my wife Sarah E. Cook, after my death, shall have two negroes, Amy and Ben, during her life or widowhood, and at her death or marriage, to go to my youngest son, George W. Cook.” And then again, in the eighth item, after giving to his son George W. Cook, the four negroes specified, and “ at his mother’s death or marriage, Amy and Ben.” Butthe words italicised, are not in the will. Their absence from these clauses and insertion,™ all the rest, where any other legacy is given to the widow, leaves but little room to doubt upon the subject.

Seeing then as we do, from the paper appended to the will by the testator, and proven as a part of it, that valuing the two negroes, Amy and Ben, at #700, which would be a pretty high price for a life estate in these slaves, that this estimate was necessary in the opinion of the testator himself, to do her justice in the division of his property, we feel disinclined, upon a doubtful construction, to curtail her interest.

Judgment affirmed.