Ayer v. Messer , 59 N.H. 279 ( 1879 )

Doe, C. J.

The bill did not call for a sworn answer; and the answer, though under oath, is pleading and not evidence.

The parties, as devisees and legatees, have various interests in certain property. If there was fraud or error in the settlement of the testator’s estate, against which the plaintiffs are entitled to relief, the probate court, on their petition, can modify or vacate its decrees, open the settlement, and do justice in appropriate proceedings. No cause is shown for settling the estate, or revising the settlement of it, in this suit.

As life tenant of a part of the property, and "trustee or managing partner of other parts, the defendant, John A. Messer, has committed waste and mismanaged to an extent that requires the intervention of equity. The plaintiffs are entitled to partition and other relief. By reason of the complicated and obscure modes in which the business of the parties has been done, there are difficulties in ascertaining their exact rights. But these difficulties grow out of the condition of the facts, and not out of any uncertainty of law. It is one of the cases in which a precise account of items and details is impossible. And what cannot be reduced to a mathematical specification, must be adjusted upon an estimate as. accurate as is practicable.

The referee found that Messer, the tenant for life, committed waste by cutting and selling wood, selling hay, and exhausting the land. Messer offered evidence tending to show that it was the custom of the vicinity to sell wood and hay “as money crops.” But the referee ruled that “such a custom does not apply to estates for life.” It is not necessary to inquire whether custom can ever be evidence of what good husbandry is, in any respect, or in any particular region. It does not appear probable that the ruling of the referee on this point unjustly affected Messer’s rights, or that the evidence of the custom was worth hearing. An owner of the fee may sometimes change his investment to advantage by selling all his wood, and all his hay, and devastating his land. But it is the right of a remainder-man that his investment shall not be consumed by the tenant for life. The good husbandry which the latter is bound to practise is not merely such as is profitable for him. It comprehends the interest of the remainder-man, and preserves his estate from waste. As, upon the facts found, we are not able to dispose of the whole case, and a further hearing-before some member of the court will be necessary for a decision of all the matters in controversy, the evidence of custom will be examined at the same time for the purpose of seeing whether it is. relevant and entitled to any weight.

Case discharged.

Smith, J., did not sit: the others concurred.