Maher's Admr. v. Maher

Stafford, J.

John S. Maher died in 1893, leaving a will by which, after certain money legacies to his daughter, he gave his whole estate including a farm to his only son, subject to the right of his wife to use the same during her life or widowhood. Shortly before he died, and long after he made the will, he and his wife deeded the farm to the son upon condition that the grantors and the survivor should have “the use, occupancy, rents, issues and profits” during life. There were slate deposits on the farm; and soon after the father’s death the son and widow leased that part to two lessees, to quarry upon royalty, who on the same day assigned a third interest under the lease to the son; and thereafter the three worked the quarry as partners until the widow’s death, paying her $915.00 of the $1,622.37 due under the lease. A further sum, $216.10, has become due since her death.

This bill is brought by the administrator of the widow and some of the heirs of John S. Maher against the son, the lessees and others, to set aside the deed and recover the balance of the royalty. The deed, it is said, was without sufficient consideration, and, whether so or not, was inoperative as being of a testamentary character.

But whether the widow’s title be under the condition in the deed or under the will, it is in legal effect the same, — that of life tenant; while the son’s is that of remainder-man. If the widow might have objected to the.quarrying as an interference with her use of the land as a farm, she waived her right *245 by joining in the lease. Further than her right to prevent such interference she had none in the quarry — for it had not been opened — except to keep it unwasted for the remainder-man. Lenfers v. Hente, 73 Ill. 405 : 24 Am. Rep. 263 ; Note, 14 Am. St. Rep. 628 ; Marshall v. Mellon, 179 Pa. St. 371: 57 Am. St. Rep. 601 ; Billings v. Taylor, 10 Pick. 460 . See also Eng. Rul. Cas. Vol. 17 pp. 723-774 for cases and notes.

The remainder-man himself having done the quarrying she cannot recover from him what she would be bound to pay back to him. Willey v. Laraway, 64 Vt. 559 .

The orators have failed to establish their allegation of an agreement to pay the whole royalty to- the widow, and if by the lease she was entitled to one-half, which is all that could be said, she has received that and more.

The pro forma decree dismissing the bill is affirmed and the cause remanded.