In Goodright v. Barron, 11 East, 220, a will was executed with this clause:
"Also, I give and bequeath to my wife, Elizabeth, whom I likewise make my sole executrix, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed."
In an action of ejectment, Lord Ellenborough, giving the opinion of the court, and speaking of this clause in the will, says:
"But these words may have been meant to make her dispunishable of waste, for which, as tenant for life only, she would have been liable. ... If the words 'during her life' had been added, that would have made the intent clear in one way."
In Webster v. Webster, 33 N. H. 21, the court say:
" It would seem that no particular form of words is necessary to make an estate for life without impeachment for waste."
We think the words employed in this lease clearly import a leasing without impeachment for waste, and that the defendant has a right to do all those acts which such a tenant may exercise. We, however, find no error in the record, under the circumstances of this case, in view of the character of the building removed, and the trees cut and carried away.
The judgment must be affirmed with costs.1
2. In What Waste Consists. a. In respect of houses and other structures.
59 Mississippi, 289. - 1881
[Reported herein at p. 433.]2
b. As to wood-lanas.
18 New Hampshire, 594. - 1847.
Case in the nature of an action of waste. Verdict for plaintiff, subject to opinion of this court.
Gilchrist, J. - The words of the devise are: "I give and devise to my wife, during her natural life, the use and income of all my real estate," and "I give and devise to my brother, Moses Johnson, one-eighth part of all my estate not herein disposed of, which may be left after the decease of my wife," etc.
1 This was an action on the case for waste brought under chap. 271 How, Stat., but as will be seen equitable principles are discussed and enforced. For "equitable waste" against owner in fee, see Turner v. Wright, supra, p. 391. - Ed.
2 See also the other cases under permissive waste. - Ed.
The defendant is, therefore, tenant for life, and the plaintiff has the remainder, and is entitled to sue for waste committed upon the estate.
The tenant for life, committing waste, is liable in this form of action to the remainderman, unless she is, by the terms by which her estate has been created, exempted from those restraints which, since very early times, have qualified that interest. In other words, unless she has an estate for life, without impeachment of waste, she is liable. 2 Blackst. Com. 283; Sackett v. Sackett, 8 Pick. 314; Chase v. Haselton, 7 N. H. Rep. 171.
It is impossible to perceive, in the words by which this life estate has been created, any evidence of the testator's intention to dispense with the ordinary restraints and qualifications which attend estates for life in general. Nor do the circumstances and the relation between the parties, adverted to in the argument, or the terms in which the remainder over is limited, raise the presumption that such an intention was in the mind of the testator, much less do they amount to an expression of such a purpose. The case is certainly not stronger than that of Chase v. Haselton, 7 N. H. Rep. 171, in which the grant was by way of a quit claim of all the grantor's right and interest in the land for the life of the grantee, which was held not to authorize waste, or to deprive the grantor of his right to recover for waste committed.
What amounts to waste is a question not always free from doubt and difficulty. The tenant for life may have reasonable estovers for house-bote, and may, from trees commonly used for fuel, take sufficient to supply the house upon the estate. Blackst. Com. ubi supra. But this right has not been construed to be a right to sell wood from the estate.
In Paddleford v. Paddleford, 7 Pick. 152, it was held that trees, which were of a quality that would have justified their use by the tenant for fuel, could not lawfully be sold or exchanged for fuel to be consumed upon the estate. And in this State in the case of Fuller v. Wason, 7 N. H. Rep. 341, it was decided that wood could not be sold by the tenant for life, although having the right to consume it even in a larger quantity than that which was sold. The act of selling was, in both the cases cited, distinguished from the exer-cise of tin personal right of consuming, in a particular manner, that which belonged to the remainderman, and was attached to the estate, and was held to be waste.
The tenant, in the present case, sold a portion of the trees, to pay the expense of cutting and conveying to her door those which she had a right to take for fuel. This act plainly transcends the limit of her rights, as fixed by cases cited; for if she can sell for one purpose, she may do so for another.
The trees are parcel of the realty, and belong to the remainderman, subject only to the right of the tenant to use a portion of them for special purposes. The growth and the decay of the forest are of no concern to him. If a tempest uproots the trees, the remainderman is held to be entitled to carry them away, and in certain cases the court of chancery has directed decaying timber to be cut and sold for the benefit of the same party, saving always the rights of the life tenant, who is to be indemnified for the loss of his usufructuary interest in them. Bewick v. Whitfield, 3 P. W. 267; s. c, 2 do. 240.
There is no principle which would have justified the admission of evidence of what the testator said, to vary the meaning of the words of the will which he executed.
Judgment on the verdict.
17 Pickering (Mass.), 248. - 1835.
Trespass quare clausum fregit and for taking away a quantity of wood alleged to be the property of plaintiff.