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7 N.H. 341

Fuller v. Wason

Superior Court of New Hampshire

Decided December 15, 1834

Superior Court of New Hampshire · decided 1834-12-15

This was an action- on' the case, for waste. The cause was tried on the general issue at February term, 1834, when it appeared in evidence that Dolly Hardy was the widow of Asa Hardy, deceased,’and that the premises described in the declaration' had been assigned to her as her dower in the estate of the said Asa, the reversion being in'the plaintiff. There was’a dwelling.on the premises, and the said' Dolly was under the guardianship of the defendant. .

Cited by 3 later decisions — most recently June 1862

3 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1834-12-15

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¶1By the court,

Richardson, O. J.

¶2The question to be settled in this case is, whether a tenant in dower has a right to sell wood growing upon the land, to be used any where except upon the land.

¶3The statute enacts that no woman shall commit any strip or waste upon any lands whereof she shall be endowed, but she shall maintain such lands in good and sufficient repair during her estate therein, and shall so leave the same at the expiration of her estate therein; and shall be liable to respond in damages to the owner of the reversion for any strip or waste by her done or suffered thereupon.

¶4A tenant in dower may convey her estate ; and it may be taken by an extent of an execution upon it. And he to whom the estate so passes will have all the right she had. 10 Mass. R. 260, Barber vs. Root; 16 ditto 186, Roberts vs. Whiting.

¶5Every tenant in dower has a right incident to the estate to take fire-wood, if there be a house assigned to her on the land ; to take timber for the repairing of fences and buildings, if there he fences and buildings upon the land, and to take timber to make ploughs, &c., if there be tillage. Co. Littleton 41, b, and 53, b; Woodfall 234; 7 Pick. 152.

¶6But she has only a special property in the wood, to use it *343for these purposes - upon the land, and cannot sell it; 11 Coke 82; 2 N. H. R. 430, Elliot vs. Smith; 7 Pick. 152, Padelford vs. Padelford; Co. Litt. 53, b.

¶7: She cannot be endowed of woodland, unless it was occupied with the farm by the husband. 1 Law's, 540.

¶8She may build a new house upon the land, but. she cannot take timber from the land for that purpose. Nor can she take timber from the land for the purpose, of repairing the house’ so built. Hobert 234, Darcy vs. Askwith.

¶9She cannot dig earth and carry it. off the land. ‘ Bacon’s Ab,-, “ Waste,” sec. 3. . •' v . ' . . *

¶10She. cannot take timber to build new fences, where there were none.before. Co: Litt., S3, b. . ’ ■ -

¶11It is thus apparent that in order to entitle a tenant in dower to take fire-wood, there must be a house- upon the land when her' dower is assigned to hero that she. can'take wood only to use. in such house and that if she-'take it herself, or permit any other person to. take it, to be used in any other place, it is waste. ' ■ - -, -

¶12There must, therefore, be in this case,

¶13Judgment on the verdict.

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