Noyes v. Stone , 163 Mass. 490 ( 1895 )

Field, C. J.

We assume that Adeline Walker, the widow, had a right of dower in the two lots of land described as the “ Osborn lot,” and the lot of meadow land, and that her dower was lawfully assigned to her by the Probate Court. She did not live upon the dower estate or upon any land of which her husband was seised during coverture. The widow had no right to cut the wood for sale; Padelford v. Padelford, 7 Pick. 152; or for use on another estate. Cook v. Cook, 11 Gray, 123. White v. Cutler, 17 Pick. 248. The plaintiffs, as having the next estate of inheritance, had a right to take the wood when severed. White v. Cutler, ubi supra. As the defendant, who was acting for the widow, after being notified by the plaintiffs of their title, took and carried away the wood, he may be held to have converted it, and must pay its value at the time of conversion, which is the larger sum named in the agreed statement of facts. Phillips v. Allen, 7 Allen, 115. Moody v. Whitney, 38 Maine, 174. See Foote v. Merrill, 54 N. H. 490. This is not an action in the nature of trespass upon real property. The first count is on an account annexed, and the second count is for conversion of the wood. Judgment affirmed.