
    JOSEPH C. WARE, AN INFANT, BY ISAAC JOHNSON (SECOND), HIS NEXT FRIEND, v. RICHARD M. WARE.
    1. A husband had, during the life of his wife, sold -timber standing on his wife’s land, in lots, to different purchasers. They commenced cutting during the life of the wife, and her death happening soon after, continued cutting after her death. On bill filed by her infant heir-at-law, the cutting was enjoined. At the time of the service of the injunction, some trees were still standing on some of the lots, the timber on which had been sold. It was referred to a master to inquire and report how much of the timber had been cut after the wife’s death, with a view to the question whether the husband should account for it, and also to inquire and report whether the interest of the infant required that the trees still standing on the said lots should be felled.
    2. Ordinarily, account for waste done is only incidental to relief by injunction against further waste.
    3. If timber on land of an infant reversioner is in danger of decay, the court may direct it to be cut.
    On the 4th of June, 1844, Joseph C. Ware, an infant of ten months’ old, by Isaac Johnson second, his next friend, exhibited his bill, stating that he is the grandson of Marmaduke Cook, late of Salem county, deceased, and the son of Mary Louisa, the daughter of his said deceased grandfather; that his grandfather died intestate, October 10th, 1817, seized and possessed of a large real estate in the counties of Salem and Gloucester, leaving two children, Joseph Cook and Mary Louisa Cook, the mother of the complainant, his heirs-at-law; that on the 4th of June, 1842, the said Mary Louisa intermax*ried with Riehard M. Ware, the defendanfc, the complainant’s father; that on the 4th of March, 1844, the said Mary Louisa died, leaving the complainant her only child and heir-at-law.
    The bill then states that in August, 1843, on the application of the defendant to the surrogate-general, commissioners were appointed to divide the real estate of the said Marmaduke Cook between the said Joseph and Mary Louisa, and that seven several lots and tracts were thereupon set off by metes and bounds to the said Mary Louisa. The boundaries of the tracts are set out in the bill. One is situated in Salem, containing thirty acres; another in Salem, containing 18 acres. The other five tracts are situated in Gloucester; one containing 118 acres; another 268 acres; another 45 acres; another 5 10-100th acres ; and another 68 acres. That the report of the commissioners was confirmed January 8th, 1844.
    The bill states that the defendant, immediately after the said division was approved, commenced the commission of waste, spoil and destruction of the premises assigned to the complainant’s mother; that the said premises are, for the most part, woodland, and that the value thereof consists, principally, in the wood and timber thereon; that the defendant hath cut down and destroyed large quantities of timber and wood, and continues to commit waste, spoil and destruction thereon, to the injury of the complainant’s inheritance; that he had made a vendue of the timber standing on the premises, and had sold to divers persons large quantities of the said timber, and among others, to certain persons, naming eighteen persons who are made defendants, who have cut down large quantities of the wood and timber, and carried the same away, and threaten to continue to do so; that the said defendants have cut a large quantity of the wood and timber and hauled it to and upon adjoining lands, and that a large quantity of wood and timber cut by the defendants now lies upon the premises where it was cut; that the acts and doings of the defendants will, if continued, result in the total destruction of the estate of the complainant.
    The bill prays an injunction against further waste, and against removing any wood or timber cut down and being on the premises, or any wood or timber which has been taken off the premises and is now on adjoining lands.
    
      An injunction was granted according to the prayer of the bill.
    The joint and several answers of the defendants, except one purchaser named in the bill, has been put in. The defendants admit that the premises came into the possession of the defendant Richard M. Ware by marriage with his late wife, and are now held by him as tenant by the courtesy, his said wife having died leaving issue, the complainant.
    They state that, when the said Richard came into possession of the premises, there was standing thereon a considerable quantity of old timber; much that was decayed and decaying and checking the growth of the younger treces; much that was injured and ruined by the worms, particularly the pine; and much exposed to destruction by fire, which frequently happens in the coaling regions. That a just and proper regard to the estate required that all that has been cut should be cut, sold and removed. That the defendant Richard was so advised by persons well acquainted with the premises, and, among others, by the said Isaac Johnson second, the next friend of the complainant in this suit. That the said Richard accordingly made sale of part of the timber growing on said tracts, and that said sales were made with a special regard to the benefit of the estate. That all the sales were made in the lifetime of the wife of the said Richard. That since her decease no timber lias been sold. That it was important for the preservation of the timber cut that it should be removed and used. That there is considerable bark on some of the lots, which, if suffered to lie on the ground, will soon be worthless. That such is the situation of the lots which have been sold, some of them having but few trees standing, and these more or less injured by the fall of the surrounding timber, dial a just regard to the interests of the estate and of the party legally entitled, requires that the timber sold should be cut, and the timber cut used.
    The answer submits, that the defendant Ware, as tenant by the courtesy, under such circumstances, is entitled to the proceeds of the said sales; but that if it should be otherwise decreed, he is guardian of the complainant, and is willing and ready to account for the same as such guardian, under the direction of this court; and that he is farther ready and willing to stipulate that no more sales shall be made. That the continuing the injunction will be detrimental to all parties.
    In October, 1845, on motion of counsel for the defendants, and with the consent of the counsel for the complainant, the injunction was so modified as to permit the wood and timber that had been cut to be removed by the purchasers, the same being first appraised and valued by Joseph Nelson, Esq., of the county of Salem, the said appraisement to be filed in this cause, and the defendant Ware to account for the amount of it, if the court, on the hearing, shall be of opinion that he is liable to account.
    The case was heard on the bill and answer.
    
      William, N. Jeffers, for the complainant.
    
      Peter D. Vroom, for the defendants.
   The Chancellor.

The commissioners’ report of the division was confirmed January 8th, 1844. The complainant’s mother died March 4th, 1844. The bill was filed June 4th, 1844, and states that, immediately after the division was approved, the defendant Ware commenced cutting, and that he has cut down large quantities of timber and wood, and continues to commit waste, to the injury of the complainant’s inheritance. That he made a vendue of the standing timber, and sold it, in lots, to different persons, who had cut down large quantities of the wood and timber, and carried the same away, and threaten to continue to do so. That the defendants have hauled a large quantity of the timber cut to and upon adjoining lands, and that a large quantity of the timber cut now lies on the premises where it was cut. The bill does not state when the vendue was made, nor whether the,wood and timber now lying on the premises was cut before the mother died, or has been cut since.

The answer states that all the sales were made in the lifetime of the wife of the defendant Ware; and that such is the situation of the lots which have been sold, some of them having but few trees standing, and those more or less injured by the fall of the surrounding timber. That the interests of the estate, and of the party legally entitled, require that the timber sold be cut

It would seem, from the bill and answer, that the defendants commenced cutting before the wife of the defendant Ware died, and continued to cut after her death.

Ii is clear that the complainant, in the lifetime of his mother, who held the fee, could not have restrained his father from cutting. Is he, then, entitled to an account for what was cut in his mother’s lifetime? Possibly a case might arise iu which it would be just and equitable to direct such an account; but, ordinarily, account for waste done is only incidental to relief by injunction against further waste. 3 Atk. 262; 3 Paige 259; 1 Story’s Eq. Jur., § 518.

As to the timber that was cut after the death of the wife, it may be that an account will be ordered. As to the trees standing on lots that were sold, it may be to the interest of the infant’s estate in the lands that they be felled ; they may, from the causes stated in the answer, be going to decay. If from such, or any other cause, timber on an infant’s land is in danger of decay, the court may direct it to be cut. It will be referred to a master, to ascertain and report how much of the timber now lying on the premises or adjoining lands was cut after the death of the wife, and whether the interest of the estate requires that the trees standing on the lots, the timber on which was sold, should be felled.

The consideration of all further equity is reserved till the coming in of the report.

Order accordingly.  