G-ilchrist, C. J.
The plaintiff, the widow of Benjamin Page, was dowahle of his lands, and the defendants were his heirs. On the 14th day of December, 1838, and before dower had been assigned, the parties made the agreement on which this action has been brought. It is, that in consideration that the plaintiff would give up the occupancy of the buildings on the estate, the defendants would, on the 20th of December of each year that she should so forbear to occupy them, cut and haul out for her to a certain place seven and a half cords of hard wood. And this wood she agreed to receive in full satisfaction of her claim for wood from the estate.
She absented herself from the buildings accordingly, and had forborne to occupy them until the commencement of the action. No wood was delivered in the years 1844 and 1845.
In April, 1839, dower was assigned to the plaintiff in the buildings referred to in the agreement, in a parcel of the homestead, and in the Dame lot.
The consideration of the defendant’s undertaking is very clearly indicated in the contract. It is the surrender of the buildings, and of all further claim for fire-wood, as dowager of the estate.
A question is made as to the precise duty which the defendants assumed, in undertaking to cut and haul to the place named the seven and a half cords of wood.
The defendants say that hy the hard wood described in „the contract, was intended such hard wood only as should be yielded by the land to be assigned to her in dower; that upon part of this land the hard wood was exhausted before December, 1844, and the remainder of the land had been disposed of by her prior to that time, so that she had no land upon which she could authorize any one to enter and cut the wood.
Or, since the disposition which the plaintiff had made of the last named portion of land, consisted only in leasing it to one of the defendants, if that act did not amount to a relinquishment of her claim for the wood, she had compounded for the cutting and drawing it, by the transaction with York and Hackett, on the 22d day of February, 1845, and by the earlier transaction between her agent, Carter, and Hackett; and that the defendants have been thereby exonerated.
But the contract does not, in its terms, limit the duty of the defendants to cutting and hauling the hard wood upon the land to be assigned in dower; and it was made when it was not certain that there would be any hard wood upon the land so to be assigned. The consideration was not merely her right to reasonable allowance of wood upon such land, but her surrender of a right to occupy some portion of the buildings. It cannot be said, upon the reading of the contract, that the labor of cutting and drawing the wood was the compensation for the occupation of the buildings, and the wood itself an equivalent for her right to cut fuel upon the estate. Both of these her claims were compounded, and formed together the consideration for the defendants’ promise. This promise was to deliver a certain quantity of hard wood, annually, on the 20th of December, without reference to a question whether her reasonable requirements, as dowager, might excegd or fall short of that quantity, or whether or not wood of that quality might be found upon the land assigned her.
There is, therefore, no sufficient ground for holding that the lease made by the plaintiff to one of the defendants of the land assigned to her, in any way affected the contract concerning the wood. It seems in no way connected with it. The defendants were as well able to execute their part of it after as before the lease; and the consideration on which their undertaking was founded existed as well after as before the lease; for the defendants enjoyed the buildings which she had vacated, and in parting with that particular portion of her land it by no means appears that she precluded herself from the enjoyment of the dowager’s privilege of cutting her wood from the other portion of the land assigned to her — the relinquishment of which right, with the relinquishment of the buildings, formed from year to year the consideration of the defendants’ undertaking.
By the terms of the contract which is the subject of the suit, the plaintiff was not precluded from returning when she pleased, and resuming the occupancy <pf the buildings. They had been sold to Hackett, subject to that incumbrance. By the tripartite agreement of the 22d of February, 1845, she covenanted with Hackett and York, not to exert that right to their disturbance; and they agree not to call on her to aid in repairing the buildings, and also to pay her five dollars a year so long as York’s contract with Page shall require him to cut and draw from her land seven and a half cords of hard wood annually.
If we are to suppose that this period was the term of her life, and the contract referred to an undertaking of York upon purchasing the buildings subject to her rights, to assume the obligations into which the defendants had entered to supply the wood, it only describes the extent of York’s undertaking, and tends in no manner whatever to define that of these defendants. There is nothing in the tripartite agreement by which the plaintiff assents to any such construction of the agreement in suit for which the defendants contend.
Neither is there anything in the agreement of the 22d of February by which the plaintiff, in terms or by reasonable implication, dispenses with the defendants’ undertaking ; nor is anything secured to her which appears on the face of the writing to be a substitute, wholly or in part, for that which she is entitled to by the contract with the defendants. The sum of $5 which Hackett and York agree to pay to her annually, is upon considerations distinctly expressed in the indentures.
The arrangement that was made through the intervention of Carter was no more than this : Hackett was bound to cut and haul the wood by his agreement with Daniel Page, Jr., and agreed with the plaintiff to receive $5 instead of that service, or a part of it. This was an arrangement which she certainly might well have made, without sacrifice of the right for which «she contends ; and she did not intend to waive it, as clearly appears by the evidence.
The exception to the evidence must, therefore, be overruled, and there must be
Judgment on the verdict.