Fales v. Currier

As both the plaintiffs and the defendant claim under the deed from Joseph Bartlett to Polly Bartlett, it may be that neither will seek to enforce the rule which makes the deed void by reason of the alteration. It appears from the case, that after the demurrer was filed the plaintiffs moved to amend their bill so as to show that the alteration was made before the delivery of the deed; and I see no objection to this amendment being made. In Ross v. Adams, 4 Dutch. 168, cited in 1 Washb. on Real Property 93, it was held that a grant to a married woman for life, and at her death to her children of her by her husband begotten, was by the law of New Jersey an estate tail in the wife, nor would it enlarge it to a fee although the covenants in the deed were to her and her heirs generally. Washb., vol. 2, p. 560, says, — "Thus, the words `child or children' are in their usual sense words of purchase, and are always so regarded unless the testator has unmistakably used them as descriptive of the extent of the estate given, and not to designate the donees. But they may be used as words of limitation. * * "In a will a testator may use the word `children' as meaning heirs of the body: possibly a grantor may do this, but his intention must be clearly shown. Words of purchase will be treated as such until it has been unmistakably shown that the grantor designed to use them in a different sense." 2 Washb. on Real Property, book 2, ch. 4, sec. 8. Assuming, then, that the alteration was fairly made, and that the conveyance is to Polly Bartlett and her children, she then having no children, the authorities above cited show that "children" is a word of purchase, and that Polly Bartlett took a life estate, with the remainder to her children as purchasers. Whether the children took a remainder in fee or a less estate need not now be determined. This being so, she could only convey an estate during her life, and the plaintiffs, who are her children, will be the owners of the land at her decease. The authorities sufficiently show that Polly Bartlett being a tenant for life only, neither she nor her assigns can lawfully commit waste. The plaintiffs, therefore, have a right not only to recover damages for the waste already committed, but also to have an account of the proceeds, and an injunction to restrain further waste. It is difficult to see how the plaintiffs could have any remedy excepting in equity. They have not a right to the immediate possession of the property, or the immediate possession of the avails of the sales of timber from the lot. They also have need of an account, which can only be had in equity, and an injunction.