1Three of the eight judges dissented; Clarke, J., wrote the dissenting opinion,

2. Estovers.

Smith V. Jewett

40 New Hampshire, 530. - 1860.

Bellows, J. - The plaintiffs in this case seek for relief on account of waste already committed; for an injunction to stay waste in the future; for a decree of forfeiture for breach of condition in neglecting to maintain the plaintiff, Sarah F. Jewett; for an account of the personal property received by said Nancy under the will, with the income thereof, and of the real estate, and that proper decrees be made to secure and preserve it for the benefit of the persons interested; and also that the said Nancy, having become incapable of discharging the duties of the trust, be removed, and another trustee be appointed; the bill also prays that the said Nancy be compelled to maintain the said Sarah, and to reimburse the sums of money expended by her, the said Sarah, for her own maintenance, by reason of the neglect of the said Nancy.

The position of Nancy Jewett being that of tenant for life, she is entitled to take from the land a reasonable quantity of wood for fuel, for the supply of herself and family upon the premises, to be cut in a prudent and proper manner. She may also, we think, include a reasonable supply for necessary servants employed to carry on the farm, and living in the same or another house upon the premises, and it can make no difference in this respect whether such servants are paid by fixed wages, or by a share of the crops, as tenants at the halves. To carry on the farm, servants may doubtless be employed and reasonable fuel may be used for their suitable accommodation, and it can in no wise affect the remainderman or reversioner whether the persons so employed are paid by wages in money or a share of the crops, the real question being whether the tenant has used more than a reasonable quantity of wood for such discussing the origin and history of the rule. After some arguments of a technical character, he concludes : " But I am inclined to decide this case upon broader grounds; the inapplicability of the rule contended for to the condition of society here, the fact that it has never been deliberately and expressly recognized, and its obvious hardships and injustice. There is not a particle of reason, founded upon abstract principles of justice, or arising from considerations of convenience or policy, why rents, in cases of this nature, should not be apportioned; and nothing but the pressure of an indubitable current of authority should constrain us to recognize so anomalous and so technical a rule. When I add these considerations to the manifest intention of the testator, I have no hesitation in saying that the judgment of the Superior Court of Buffalo should be reversed." - Ed.

Purposes. The tenant for life may lawfully assign his interest to another, who will have the same rights. Fuller v. Wager, 7 N. H. 342. There can, therefore, be no objection in this case, that wood was used by a tenant of the said Nancy Jewett. In Gardner v. Deering, 1 Paige Ch. 573, it was held that a tenant in dower may take reasonable firewood not only for the house which she herself occupies, but for the house of her servant who cultivates the land, though living upon another tract adjoining. Tayl. Landl. & Ten., sec. 352; Miles v. Miles, 32 N. H. 147; Webster v. Webster, 33 N. H. 19; 4 Kent Com. 80; 1 Gr. Cru. 104; Paddleford v. Paddle-ford, 7 Pick. 152.

In the case before us the bill charges that the said Nancy had leased the farm and part of the house to one Bean, with a right to cut firewood on the farm, and that he has done so for his use, and that the said Nancy has also supplied her own fire with fuel from the same source at the same time. The answer denies any waste, but admits the lease to Bean, alleging that the expense of hiring hands to cultivate the farm was so great it was thought best so to lease it, and admits also that in cold weather said Bean used wood for a separate fire. But it is not alleged in the bill, nor does it appear in the answer, that an unreasonable quantity was used; therefore the plaintiffs are not entitled to a decree upon that ground, and so also in respect to the charge of bad husbandry, which is denied by the answer.

As to the prayer for a decree of forfeiture for breach of condition, by neglecting to maintain the plaintiff, Sarah F. Jewett, it may be regarded as an established rule that a court of equity will not enforce either a penalty or a forfeiture, and therefore it is contrary to the uniform course of the court to lend its aid to divest an estate for breach of condition subsequent. 2 Story Eq., secs. 1315, 1319, and authorities cited; Livingston v. Tompkins, 4 Johns. Ch. 431; 4 Kent Com. (9th ed.), 147; Story, Eq. Pl., sec. 521. * * *

In regard to the application for an account of the property and the income thereof, we see no occasion to decree it. Under some circumstances, where there is cause to fear that the property will be squandered or diverted to other than the legitimate uses, a bill with proper parties and in the nature of a bill quia timet may be maintained, lint that is not the character of the proceedings here, nor are these parties entitled to an account of the income of the property in the hands of the said Nancy Jewett. By the will the whole property is given to the widow during her life, upon the condition that she maintain the two daughters while unmarried. This gives her an estate for life in the property, both real and personal, as in

Miles v. Miles, and Webster v. Webster, before cited. And the estate at once, on the death of the testator, vested in her, the condition annexed to the gift having nothing of the character of a condition precedent. As such tenant for life she was entitled absolutely to the income of the property and reasonable estovers; subject only to the charge of the maintenance of the two daughters. And, on the other hand, whether the income was sufficient or not, she was bound to furnish such maintenance - the property being held by her upon that condition or subject to that charge - and having accepted the gift, she may be compelled to comply with the condition, by a resort to equity or by action at law. Pickering v. Pickering, 6 N. H. 120; Veasey v. Whitehouse, 10 N. H. 409. Such would have been the law had the property been wholly unproductive. The plaintiffs, therefore, cannot compel the defendant, Nancy Jewett, to come to an account of the rents and profits of the estate upon any grounds disclosed in these proceedings. * * *