Wiggin v. Wiggin, 43 N.H. 561

43 N.H. 561 | N.H. | 1862

Bellows, J.

The main question in inspect to the fuel is, whether the plaintiff had a right to use it off the premises, or to sell it. It is clearly provided by the will that the wood was to be delivered at the house of the testator and properly prepared for use there; but there is nothing in the provisions of the will or in the nature of the case inconsistent with its use elsewhere, or the sale of it. If, from infirmity, or from motives of economy, it became convenient for the plaintiff to live elsewhere, it would certainly be just that she should be allowed to take with her, or to sell, the corn and other provisions, and the wood also, unless her doing so would be inj urious to the defendant and inconsistent with the parent’s will.

Of course the plaintiff coujd not, by a removal from the house, change the place or time of delivery ; but when delivered we think she may sell the wood or use it elsewhere. In this way she might make it more beneficial to herself without injury to the defendant; and no such injury has been suggested or perceived. And a construction of the wall, then, that would allow such change in the mode of the use should be favored ; as in the case of the grant of a mill and a right to draw water for the same ; in which case it is well settled that the grantee may draw the same quantity for any other kind of mill. Johnson v. Rand, 6 N. H. 22; Whittier v. Cocheco Manf. Co., 9 N. H. 454.

It is suggested by the defendant’s counsel that the plaintiff must be regarded as tenant for life of the rooms described, with the right to wood to burn there, and that therefore she can not sell it or burn it elsewhere. But we think the wood is not to be regarded as an incident to the tenancy of these rooms, any more than the money, corn, or other provisions; on the contrary, we hold that, without occupying these rooms at all, the legatees would be entitled to the other things, as independent bequests. Where the right to estovers is a mere incident to an estate in the land, as in the case of a mere tenancy for life or in dower, the law has been otherwise ; although in respect to dower, it is now changed by statute. These general views are recognized in Fiske v. Fiske, 20 Pick. 499, which is cite'd for the plaintiff'. There a husband, by his will, gave to his wife a certain room in his house, and other privileges, during her life; and a son, after the testator’s death, mortgaged to the widow certain real estate, with a condition, among other things, to send her firewood for one fire, to be drawn and cut at the door, fit for use. The court held that the mortgagor was bound to furnish the wood at such place as she should make her residence, provided it should be within a reasonable distance; and the circumstance that the house was destroyed by fire did not exempt him from Ms obligation to furnish the wood.

In respect to the corn there is no evidence of any demand on the one hand, or offer to deliver it on the other, at any place. In Pickering v. Pickering, 6 N. H. 120, which was a suit against a devisee to recover a legacy of twenty dollars annually, charged on the land, it was decided that, by accepting the devise, the devisee became a debtor by reason of the land for the legacy; and like any other debtor, is bound to pay without a demand ; and that he stood upon the same ground as if he had expressly promised to pay; and the plaintiff in assumpsit was allowed to recover. So in Veasey v. Whitehouse, 10 N. H. 409. In the former case, the court distinguish between a suit against a devisee and an executor for a legacy; holding that in the latter a demand is necessary. The case before us is like that of Pickering v. Pickering, except here the legacy was payable in specific articles, while in that case it was payable in money ; but we think the same principle must apply, namely, that, as respects the devisee, the legacy stands upon the footing of an ordinary debt which he lias promised to pay; and the question then is, whether, in the case of a promise to pay or deliver five bushels of corn yearly and every year, a demand before suit is necessary. In this case the time of payment is fixed, and it is incumbent on the defendant, generally, to deliver the corn at the place appointed, or to show a readiness to do so; or if none is appointed, then to seek the plaintiff and have her fix upon a reasonable place. In neither ease is a demand necessary. Co. Litt. 210, b; 2 Kent Com. 505, 507, and cases; Lobdell v. Hopkins, 7 Cow. 516; Goodwin v. Holbrook, 4 Wend. 380; Aldrich v. Albee, 1 Greenl. 120; Bixby v. Whitney, 5 Greenl. 192; Bean v. Simpson, 16 Me. 49; Howard v. Miner, 20 Me. 325; White v. Perley, 15 Me. 470, where it is expressly held that a demand in such case is not necessary; and to the same effect is Smith v. Loomis, 7 Conn. 110; 1 Ch. Pl. 330; Chit. on Cont. (9th Am. Ed.) 730, note; 2 Greenl. Ev., sec. 609, 610, and note; Currier v. Currier, 2 N. H. 75. Upon the facts stated, then, an action of assumpsit can be sustained for not delivering the corn and wood. Pickering v. Pickering, 6 N. H. 120; Veasey v. Whitehouse, 10 N. H. 409; Smith v. Jewett, 40 N. H. 530.

The only question, then, as to the plaintiff’s right to recover is, whether the action can be maintained on this declaration. The special count sets out the entire bequest to the plaintiff and her sister; the devise to the defendant, making him the residuary devisee; the condition by which the plaintiff .became entitled to the whole bequest to herself and sister; the promise by the defendant to pay and perform according to the bequest; and his neglect and refusal to pay and deliver to the plaintiff the various articles, enumerating them, as provided by the will; and we see no objection to it. Under this declaration the defendant objected that evidence of his refusing to allow the plaintiff to take away wood was incompetent; but we do not see upon what ground, inasmuch as it tends to prove a refusal, as well as neglect to deliver the wood, and to this there can be no objection.

The only remaining question is in respect to the set-off for expense of shingling her part of the house, and cash received by her for rent of rooms. On this point it appears that the will gives the plaintiff the use and occupancy during her life of the westerly lower room in the testator’s house, the chamber over it, and the northerly front lower room; and the defendant is the owner of the reversion, and also of the rest of the house. It is claimed by the defendant’s counsel that the plaintiff and defendant are like tenants in common, and that she is bound to repair her part of the house. If this were so, we find no authority that would sanction the making of the repairs by one tenant, without the request of the other, and the recovery of a share of the expense in assumpsit. In such cases, the remedy at common law is by writ de reparatione fadenda. Co. Litt. 54, b, 200, b; Bowles’ Case, 11 Coke 82; 1 Salk. 360; 4 Kent Com. 370. So where one’s house is ruinous and likely to fall on his neighbor’s house, the same remedy is said to exist; Co. Litt. 56, b, and cases cited; and an action on the case will lie for the neglect to repair, by reason of which his neighbor’s house is injured. Ibid., note 2, and Fitz. N. B. 296, note a. But here the parties are not tenants in common at all; but the plaintiff is seized of certain rooms, and the defendant of the remainder of the house ; and- in legal contemplation each has a distinct dwelling-house, although they are adjoining; and no authority is cited or found that would sustain an action at law, by one against the other, to recover for repairs made without request. In Loring v. Bacon, 4 Mass. 575, the defendant was seized of a lower room and cellar under it, and the plaintiff of the chamber above and the remainder of the house; and repairs to the roof being necessary, the defendant, on request, refused to join in making them; whereupon the plaintiff made them and brought assumpsit for a share of the expense. It was held, upon full examination of the authorities, that the action would not lie, and that the defendant was not bound to contribute to the expense; but the case stood like that of owners of separate but contiguous houses or mills, where the appropriate remedy, in case one suffers his building to become ruinous and to endanger of injure the other’, is by writ de reparatione fadenda, or action on the case. So in Cheeseborough v. Green, 10 Conn. 319, where the plaintiff owned and occupied the foundation and first and second stories of a building; and the defendant the third story and roof, which had become leaky and ruinous, whereby the plaintiff’s goods were injured; it was held that an action on the case would not lie, but the remedy must be sought in equity. See, also, Campbell v. Mesier, 4 Johns. 334, and 4 Kent Com. 371-412, and notes. Upon these views we are of the opinion that this item of the set-off can not be sustained.

We are also of the opinion that the defendant is not entitled to recover the amount of the rent received by the plaintiff for her rooms. Whether the plaintiff has the right to let the rooms to another without the assent of the defendant or not, we think he has no such interest in them during the life of the plaintiff as to entitle him to the use of them in her absence, or to the rent, if leased to another. The use and occupancy of the rooms are given to the daughters to live in during their lives, and while single, and during that period the defendant has no right to the use of them, as we conceive, under any circumstances, nor to any profits to be derived from their use.

These views are to be certified to the trial term.