According to justice, using the word in its 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.
I.The promise of Wood cannot be enforced on tire ground of its creating a trust, for a trust can only be created in one of four modes.
1. By transmission 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.
If we can sustain the defendant, it must be upon this point, that is to say the fraud in writing the title, (referred to in the pleadings) at the dictation of the testator and the promise to carry out his wishes in respect thereto, as understood between them ; whereas the present action runs counter to the letter and violates the promise.
This is met by the fact that the will had been executed several years before, and an implied trust is expressly excluded by statute. Bat. Rev., ch. 119, sec. 44. “No conveyance or act done after the execution of a will, shall affect its provisions, except it is so executed as to amount to a revocation.” The letter and the promise are both excluded by the words of this statute.
The suggestion that the time of the execution of a will is the time it takes effect, to-wit, the death of the testator, calls *116for no remark, but it is all that the idea of a trust can rest on, so that ground fails.
II. The lease to Cherry, intended by “the letter” so as to give defendant a life estate, is an executory contract which the plain tiffs will be decreed specifically to perform. The difficulty here is to determine from the lease (as it is called) and the letter, what was this executory contract, or if it will make it any stronger, “lease under which the husband of defendant entered and held possession for many years.
It is clear that, by its proper construction, the husband of defendant was by virtue of the lease to have the right to occupy the premises during his lifetime, and by “ the letter” this privilege of occupancy was extended to the defendant during her life or widowhood ; but the question is, what was the consideration of “ this grant to occupy j” and how can the Court carry it into effect as an executory contract and decree what is to be done on the one side, and what is to be done on the other side, incidents necessary in every decree for specific performance, supposing her to be sufficiently connected with this lease or executory contract, so as to be able to make title un 4er it, by means of “ the letter,” mentioned in the pleadings. How can this Court declare what she is to do in consideration of the privilege of being allowed to occupy the premises as Ja. C. Johnston, the testator, looked at it, or consideration of the rent of the premises, as the defendant now looks at it. The paper executed by J. C. Johnston grants a life estate to Cherry, “ he paying me rent for the same according to the profits of said farm, 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 spare, provided said Cherry shall have no right to transfer his interest, nor shall it be sold for his debts.
This instrument is too vague and uncertain to make it practicable to decree its specific performance. Indeed, it seems to have been intended merely as evidence of Mr. Johnston’s bounty or charity towards one who seems to have been depen- *117\ -dent upon liim, and it is the misfortune of the defendant that j it was not done in such a manner as to give it legal effect.
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.