Brayton v. Jordan

51 A. 1047, 24 R.I. 6, 1902 R.I. LEXIS 9

• Court: Supreme Court of Rhode Island
• Decided: March 7, 1902
• Status: Published

Opinion

Per Curiam.

The complainant is owner in fee of a wood lot set off to Phebe L. Jordan as dower in her husband’s estate in 1890. Nothing was done under this assignment of dower until March, 1901, when the dowress sold all the wood on the lot to the respondent Smith, who thereupon cut off nearly all of it, until he was restrained in this suit.

(1) The statute in regard to dower in wpodlands, Gen. Laws cap. 264, § 2, provides that the widow shall be endowed in a special and certain manner, as of a third part of the growth. Dower was not so assigned in this case, but the lot in question was set off by metes and bounds. No objection was taken to this course, and as this is a suit in equity, and as equity, when it can, regards that as done which should have been done, we hold that the widow was entitled to one-third of the growth of the wood on said 1st.

We find, from the evidence, that the wood cut from the seven acres in question amounted to about two hundred and forty cords ; that the yearly growth of wood on this lot, the trees being about twenty-three years old when dower was assigned^ was about one cord and a quarter per acre, which for eleven years would amount to about ninety-six cords. Deducting this from the two hundred and forty cords cut, it leaves one hundred and forty-four cords over that to which the widow was entitled as dower.

E. K. Parker, for complainant. William F. Barry, for respondent.

The court is of opinion, from the testimony, that, considering the character of the wood cut, as cord wood, ties, and posts, as nearly as we can estimate, it amounts to $400. Upon payment of this sum the injunction will be dissolved.