
    Owen vs. Hyde.
    If a dowress cut down timber on one lot of the dower estate, to make fences upon another lot of the dower estate, it will not be waste, although the reversion in the two lots may be in different persons. She is not bound to notice any division which may have been made of the reversion-ary interest among the heirs.
    A dowress takes the dower estate, with the rights and liabilities attached to that, as a whole, and although she may destroy all the timber on one of the lots included in her dower, yet, if the ¡whole dower estate was not injured thereby, it will not be waste.
    If the dowress leave sufficient timber for the permanent use of the dower estate, it will not be waste.
    It is not waste for a dowager to cut timber from the dower estate, though it may not be necessary to her support, if she does not materially injure the inheritance thereby.
    If the cleared land on the dower estate be old and worn, and if the proportion of woodland be such as that a prudent farmer would have considered it necessary to reduce a portion of it to cultivation, whereby to relieve the old land from excessive cultivation, such clearing would not be waste, provided “sufficient timber for the permanent use of the dower estate” were left.
    The law of waste, in respect to the privileges of a tenant for life, in this country is necessarily varied from the English doctrine.
    This is an action for waste, prosecuted by the plaintiff, who is entitled to the reversion of part of the dower estate of the defendant. The declaration alleges, that the waste was committed by removing the timber from fifteen acres of the dower estate.
    The proof shows' that Henry Hyde died intestate, seized and possessed of seven hundred and fifty-six acres of land, leaving his widow (the defendant) and eight children. The widow’s dower was laid off according to law; and soon afterwards commissioners were appointed by the county court to divide the land amongst the children. The whole tract, including the dower, was laid off into eight lots; one of the lots, of seventy-six and a half acres, was set apart for Charlotte Hyde, one of the children of the intestate. She inlermarrried with Cummings, and they sold and conveyed to the plaintiff. About one half of this lot was embraced within the portion set apart for the dower. The dower estate contained upwards of one hundred acres of cleared land, the greater part of which was much worn. The fifteen acres complained of, was part of the dower estate, which was included in the *lot belonging to the plaintiff, and which was cleared for the purposes of cultivation. It was the best land and the most convenient for farming purposes of any of the timbered land on the dower estate. The defendant had but a small force, and there was a sufficient quantity of land cleared upon the dower estate for her support before she cleared the fifteen acres. A portion of the timber cut from the lot of Charlotte was used to erect fences on other lots of the dower estate. The timber cut off was valuable, worth three or four hundred dollars; but there was timber enough left, for the permanent use of the dower estate. The court charged the jury, among other things not excepted to, “that though there may be a sufficient quantity of cleared land for the support of the dowager and her family on the dower estate, yet she may go on and clear land and cut down timber for the purpose of cultivation, provided she leaves wood and timber sufficient for the'permanent use of the dower estate.
    
      T. H. Fletcher, for the plaintiff in error.
    1. Owen is here the purchaser from the remainderman, and may sustain an action for waste. 4 Kent, 76: 3 Dane, 215, sec. 2; 223, sec. 1; 224, sec. 10; 225, article 12: 3 Dane, 226, sec. 2.
    2. .The origin of dower shows that it is only intended for the support of the widow, and not as a source of profit. 2 Blackstone, 129: our statute of 1784: 1 Institutes, b, 30: 2 Blackstone, 130: 4 Kent, 35, 75: 7 Johnson, 227: 15 Mass. Rep. 165: 2 Haywood, 111, 283, 339: 6 Munford, 144, 145.
    3. The widow is liable for waste. 2 Blackstone, 282, 283: 4 Kent, 71, 74: 3 Dane, 223, sec. 1 and 2; 224, sec. 6,and 10.
    4. What is waste in the widow? 3 Dane, 214, sec. 2•; 216, 217, sec. 3; 218, sec. 4: 2 Blackstone, 281: 7 Johnston, 232: 15 Mass. Rep. 165: 2 Haywood, 111, 283, 339. M
    5. Measure of damages. 2 Blackstone, 283: 3 Dane, 231, sec. 2; 233, sec. 8: 4 Kent, end of .79, 76: 3 Dane, 227, sec. 14, and article 13, sec. 1.
    
      J. S. Yerger smñ. Thompson for the defendant in error.
    In his charge the judge'laid down the proper rule, slightly changing the English rule in actions of waste, so as to make it apply to the situation and law of our owp State as to dowagers, tie did not, (andrightly too,) enforce the rule against a dowager that is enforced against a tenant for life, which are estates less favored in law than dower. The rule laid down by the judge in his charge to the jury is the same laid down by the courts of New York, Pennsylvania, North Carolina and Virginia. See 4 Kent’s Com. 74, 75: 7 Johnson’s Rep. 227 : 3 Yeate’s Rep. 261: 2 Haywood’s Rep. 110, 283, 382: 1 Rand. Rep. 258: 6 Munf. 134.
    This rule should apply to all tenancies for life in this country, by reason of its situation and condition, but it should apply with the more force to tenancies in dower. Our act of 1784 changes the dower ^estate of the widow materially from the rule of the English law, giving her the third part only of the lands of which the husband was seized and possessed at his death, instead of the fhird part of all the lands which he owned during coverture. This change of the quantity of estate should surely enlarge the use of that which she receives, or there will be no effect given to our act of 1784, which gives her the third part for her benefit and behoof, and by which act the legislature seemed to design a greater benefit than the widow then enjoyed. Surely the legislature did mean, by benefit and behoof, something more than the mere use of the land for cultivation. The act surely means that she may cut the timber, clear the land, and use it for sale or otherwise, so that she leave sufficient for the permanent use of the land. This is certainly the true construction; if-it was not, what would be the condition of the widow whose husband’s estate was all wild and uncleared land, without any force to clear it. 1 Scott’s Rev. 295.- See the opinion of this court, delivered by Judge Catron, in Combs and Haynie vs. Young’s heirs and widow, at the last term of this court. 4 Yerger’s Rep. 218.
    But whether she had a right to the timber after it was cut off the land, is matter of no consequence; if she had a right to cut the timber in order to clear the land, its destination afterwards will not make the party guilty of waste. 18 Johnson’s Rep. 431.
    If the tenant had no right to the timber, she would be liable to be sued in trover for the conversion of the timber, but cannot be recovered against in an action for waste, because the original clearing was lawful, the subsequent use only a conversion of a chattel. 2 Black. Com. 281: 7 John. Rep. 237.
    It is not waste for the tenant in dower to take timber from one part of her dower to fence in another part of her dower, even under the English law, though the reversion might be in different persons, and surely it would not be here where the quantity of her estate is lessened. 7 Pickering’s Rep. 152.
    But our act of 1784, above referred to, makes a material alteration in the common law, in the condition of tenants in dower, going not upon the idea that they are to be the mere workers of the soil in cultivation, but giving them an absolute interest in the soil; and timber upon it for their lives, with a right to clear and sell the timber, no matter of what kind, in the same man- . . T . -■ t 7 i j ner and in the same proportion that a prudent husbandman would clear his land, were it the whole, except so much as would be a permanent support for fencing. She has the benefit and behoof of the one third for life; perhaps to reap the benefit of her dower, she would be compelled to sell timber, perhaps the land might be such that its value consisted in the timber and not the tillage. Unless this were so, a widow with a large and heavily timbered dower estate, and small force, would be unable to support herself; she must then sell the timber to have the benefit of the estate the law gives her.
    Dower estates, under our act of 1784, are tenancies for life, without impeachment of waste, with a right to use and cut the timber, and the dowager only liable for an entire and absolute destruction of the timber, leaving the place a perfect waste. In such case a court of equity would enjoin. 3 Blackstone’s Commentaries, 289: 6 Munf. Rep. 146: 2 Swanst. Rep. 251: Combs and Haynie vs. Young’s heirs and widow, 4 Yerger’s Rep. 218. At least under our act of 1784, (1 Scott, 295,) the widow may make reasonable clearings for the purpose of cultivation, whether she had sufficient open-land for the purpose of her support or not; and the proof in this cause shows that the clearing was about fifteen acres in two years; this is not unreasonable surely.
   GREEN, J.

delivered the opinion of the court.

The qnestion here is, whether the Judge erred in his charge to the jury.

In order to the formation of a correct opinion in this cause, it is proper to remark, that whatever may be said in'relation to the defendant’s rights and liabilities must be understood as relating to the whole dower estate. She was not bound to notice any division which may have been made of the reversionary interest among the heirs; she took the dower estate as it was assigned to her with the rights and liabilities which attach to that as a whole; and although she may have destroyed all the timber which was oh that part of one of the lots included in her dower, yet, if the dower estate was not injured, but benefited thereby, she would not be guilty of waste; for that is the great criterion by which to determine whether waste has been committed, as that only which does a lasting damage to the inheritance, or depreciates its value, is waste. It is clear, that the cutting timber and clearing land instead of being waste would often greatly enhance the value-of the inheritance. In this country, where so large a proportion of the lands are wild, and yet in forest, it is often of great advantage to the estate to destroy the timber and reduce the land to a state of cultivation. 3 Dane’s Ab. 214, 215: 4 Kent 76-7.

It is not a question then, whether the dowager cut the timber from this fifteen acres as a necessary means of support, but it is, did she materially injure the dower estate thereby; if so, she would be liable to an action for waste, but if not, although the clearing was not necessary for her support, and although she may have done it for the purposes of profit, she is not liable. If the cleared land on the dower estate was old and worn, and if the proportion of wood land was such as that a prudent farmer would have considered it best to reduce a portion of it to cultivation, whereby to relieve the old land from excess of culture, and thus enhance the value of the whole dower estate, such clearing would not be waste, provided, “sufficient timber for the permanent use of the dower estate” were left. 7 John. Rep. 227: 4 Kent 76.

In respect to the privilege of a tenant for life, in the destruction of timber, the law must necessasily be varied in this country from the English doctrine. There, we could not well conceive of the destruction of timber without attaching to it the idea of an injury to the estate, as timber is scarce, and forest trees are planted and raised for fuel and for timber, it is of too much value to per-m5t its unnecessary destruction. That not being the state of things here, but on the contrary, as a benefit often results to the estate from clearing away the timber, it would be absurd to apply the rigid principles of the English law to a state of things wholly variant from theirs.

We are therefore of opinion there was no error in the charge of the court, and order the judgment to be affirmed.

Judgment affirmed.  