Wood v. Cherry

• Decision Date: 30 June 1875
• Citation: 73 N.C. 110
• Court: North Carolina Supreme Court
• Parties: WM. C. WOOD, Ex'r of EDWARD WOOD, and CAROLINE WOOD v. ELIZABETH CHERRY, widow, ,

73 N.C. 110

WM. C. WOOD, Ex'r of EDWARD WOOD, and CAROLINE WOOD

v.ELIZABETH CHERRY, widow, ,

Supreme Court of North Carolina.

June Term, 1875.

*1 A Trust can only be created in one of four modes, to wit:

(1.) By transmutation of the legal estate, when a simple declaration will raise the use or trust.

(2.) A contract based upon valuable consideration, to stand seized to the use, or in trust for another.

(3.) A covenant to stand seized to the use of or in trust for another upon good consideration.

(4.) When the Court by its decree converts a party into a trustee, on the ground of fraud.

No conveyance or act done after the execution of a will, unless it amounts to a revocation, will affect its provisions.

This was a CIVIL ACTION to recover possession of real estate, tried before his Honor Judge Eure and a jury, at the Spring Term, 1875, of the Superior Court of CHOWAN county.

The facts relating to the points decided in this Court are substantially the following:

In April, 1863, James C. Johnston, of Chowan county, made and published his last will and testament, by which he devised and bequeathed to Edward Wood, the testator of the plaintiffs, all his real and personal estate in the county of Chowan, subject to certain trusts and conditions contained in a private letter of the same date and filed with his said will.

Before making his will, the testator executed to one G. J. Cherry, afterwards the husband of the defendant, a lease of the following tenor, which was proved and registered.

HAYS', 12th March, 1863.

Know all men by these presents: That whereas, Mr. G. J. Cherry has expended much time and labor in setting out a peach orchard and grapery, and has not as yet reaped any profit therefrom, on a place belonging to me, called Collins' Point: Now, therefore, to remunerate said Cherry, I, James C. Johnston, have leased, and by these presents do lease, to said G. J. Cherry all that tract of land, with improvements thereon, called Collins Point, and which I bought from Alexander Cheshire, he paying me rent for the same according to the profits of said farm and improvements, or just as much as he may find it convenient to spare, and after my death to have it rent free, or as much as he may find it convenient to pay, provided, always, that the said Cherry shall not sell or transfer his life estate in this land, and that it shall not at any time be subject and liable to his creditors for any debts he may owe them.

In witness whereof I have hereunto set my hand and seal the day and year above written.

JA. C. JOHNSTON, [SEAL.]

A short time before the death of Mr. Johnston, the testator, he addressed to the said lessee, G. J. Cherry, the following letter, written by Edward Wood, his executor, and signed by himself.

HAYES, March 20th, 1865.

G. J. Cherry, Esq.:

MY DEAR SIR: I address you this note to say to you that it is my desire that after my death you shall continue to occupy your present residence at my Point plantation, retaining possession of the negroes now on the farm, named Jacob, George and Maggy, during your natural life, fulfilling with my executor in Chowan county the same conditions and terms of rent as agreed upon and understood between you and myself heretofore. I further desire that should you leave a wife at your death, she shall retain possession of said place during her widowhood and occupancy of it upon the same terms.

*2 Very truly,

Your friend,

JA. C. JOHNSTON.

The foregoing lease and letter are relied on by the defendant, the widow of the lessee, to sustain her claim to the premises, which she has occupied ever since the death of her husband in 1870. The defendant is still a widow.

Edward Wood, the executor of James C. Johnston, died in 1872, having devised the lands in controversy to his executor until 1878, and then over to the other plaintiff. Under this will the plaintiff claims.

Upon the trial of the cause in the Court below, the jury, under the instructions of his Honor, found a verdict for the defendant. Judgment accordingly, and appeal by the plaintiffs.

Gilliam & Pruden, for the appellants , insisted:

(1.) That no trust can be raised in respect to lands devised, after the execution of the will, except by a writing sufficient in form to revoke the will.

(2.) That no parol understanding or agreement is sufficient, upon which to found a trust in respect to lands devised, after the execution of the will.

(3.) No trust arises as to Mr. Johnston, because no agreement in writing was executed by him, with such formalities as are required by law; the paper offered being in the handwriting of another, unattested and in possession of a third person at Mr. Johnston's death.

(4.) The letter to the lessee, Cherry, was not referred to, nor contemplated by the testator, at the writing of his will.

J. A. Moore, with whom was A. M. Moore and Mullen , filed the following brief:

The lands in question, conveyed in the will of J. C. Johnston, deceased, were held by the devisee Wood in trust for Cherry. Leaving out of consideration the fact that the devisee, Edward Wood, promised the testator to carry out his intentions, (and the express trust which we hold was created for defendant,) according to the rules of construction from the will itself and the letter, an implied trust was created.

1st. Where words “precatory,” “recommendatory” or “expressing a belief” are used by a testator, an implied trust arises. Lewin on Trusts and Trustees, 168; Willis on Trustees, 54, 55, et seq. Note herewith the will of Mr. Johnston: “To him, the said Wood, his heirs and assigns,” &c., “subject to such disposition” and “ instruction,” “ trusting entirely to his honor and integrity,” &c. Phillips' Law, page 252. “But only entirely on the integrity, fidelity and moral sense.” Ibid, page 255.

*3 2d. The releasing his executors by the testator from all legal liability in the will, wes intended by the testator to apply only to the provisions made or intimated in the will and letter as made, for the benefit of testator's next of kin. The tenor of the will is to deter them from opposing its validity, and the purpose of it was to bequeath his property to parties to whom he was attached and whom he considered proper to manage his estate, and who had not deserted him. The language there had no application to any provision made for Cherry or his intended wife. The purpose of the lease was intended to be more fully carried out, as evidenced by the letter and the fact that the testator knew of the intended marriage of Cherry and promoted it.

3rd. If there had been an agreement between the Devisee and Testator to execute an unlawful trust, the beneficial interest would result to the heir at law.

But when the devise is a beneficial one upon the face of it and the testator communicates his will to the devisee and requests him to be a trustee for such purpose as he will declare and he fails to declare. the devisee will not be allowed to hold.

Apply then to this case--Lewin on trusts, 74, Ibid 77. Smith v. Attersoll,“a devise to Joseph and John, his sons, and executors in trust for certain purposes, “which had been fully stated to them.” Note language there and in will of J. C. Johnston, Phillips law page 526, “I have high respect to carry out my wishes” or

4th. The Statute of Frauds exempts from the provisions “Implied Trusts.” Willis on Trustees, 55 and 56.

“They arise from the manifest intention of the parties.” (Sanders on Uses and Trusts,) “or the nature of the transaction where there is no written evidenee...