Chowan County NcArchives Court.....Elizabeth Cherry, Widow, &c., Wm. C. Wood, Ex'r Of Edward Wood, & Caroline Wood V. 1875
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Connie Ardrey na/ November 1, 2011, 6:41 pm

Source: N C Reports
Written: 1875

Wm. C. Wood, Ex'r of Edward Wood, and Caroline Wood v. Elizabeth Cherry, 
widow, &c.

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 shll 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.
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.

NC Supreme Court Justice Pearson, C. J. - According to justice, using the word 
in it broadest sense, as distinguished from law or equity, the defendant ought 
not to be disturbed in her occupation of the premises during her lifetime or 
widowhood, and we have considered the case in every point of view to see if we 
could sustain the decision of his Honor in her favor. But we can find no 
ground on which to do so.

Our conclusion is, that the lease and the letter and the promise confer upon 
the defendant no rights which can be recognized either in a court of law or of 
equity.

Error. Judgment reversed
This will be certified
Per Curiam
Judgment reversed

Additional Comments:
In the NC Supreme Court June Term 1875

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