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The decree of the Vice-Chancellor declared, “ that the defendant is entitled to fell all such timber on the devised estates as is mature and fit to be cut, except such as has been planted or left standing by way of ornament or shelter with reference to the occupation of the mansionhouse on the said devised estates; but that he is not entitled to fell any unripe timber or any timber planted or left standing for ornament or shelter as aforesaid.”

The result of the decision is, that the defendant is dispunishable of legal, but not of equitable, waste. After great consideration, I agree with the Vice-Chancellor on both questions.

As to the first, my opinion is clear and decided. The defendant is tenant in fee-simple, with all the incidents of such an estate, although there be executory devises over in case he should die without leaving issue living at the time of his decease. Not making any unconscientious use of the powers belonging to him as tenant in fee-simple, why should he not reasonably exercise these powers ? Is there anything unconscientious or unreasonable in his cutting down timber mature and fit to be cut, and not such as has been planted or left standing by way of ornament or shelter? If we are to regard the intention of the testator in such limitations, can the intention be supposed to be that the first taker, who is made tenant in fee, should during the whole of his life, although he should have numerous children and grandchildren, not be entitled to cut down a tree upon the property, unless for his botes? In this case, the presumed intention of the testator is strengthened by the first executory devise over, which is for life and sans waste. He could not have intended that the first taker, to whom he gave a fee, should be more restricted in the management of the property than the devisee over, to whom he gave only a life-estate. Having given the first taker a fee, he probably thought it quite unnecessary expressly to make him dispunishable of waste.

So that equitable waste is not committed, the bountiful intention of the testator in favor of the devisees over will be completely fulfilled; for, on the happening of the contingencies limited, the property will come to them in the same condition in which it would have been if the testator, being a prudent man, had himself survived and had managed and enjoyed it till the time when the events happen upon which they are entitled to enter.

The onus seems to lie upon the plaintiff to show, by authority, that tenant in fee-simple, subject to an executory devise over, is not entitled to cut timber. It is admitted that no express decision to this effect is to be found in the books, and that no instance bas ever yet occurred of an adult devisee in fee with an executory devise over being restrained.

The plaintiff's counsel relied on dicta to be found in the reports of three cases, Robinson v. Litton, 3 Atk. 209; Cru. Dig. tit. xvi. c. 7, $ 26; Stansfield v. Habergham, 10 Ves. 273, and Wright v. Atkyns, 17 Ves. 255 ; 19 Ves. 299; 1 Ves. & Bea. 313; Turn. & Russ. 143. According to Vesey, Jr., a very careful and accurate reporter, Lord

Eldon did say, in Stansfield v. Habergham, I should by dissolving this injunction contradict what has been understood to be the doctrine of this court: that, where there is an executory devise over, even of a legal estate, this court will not permit the timber to be cut down.” But this doctrine is not to be found in any text-writer, and it has never been acted upon. In Wright v. Atkyns, the power of the widow to cut down timber was only questioned upon the supposition that she took no more in equity than an estate for life. In Robinson v. Litton, Lord Hardwicke was influenced by the consideration that the tenant in fee-simple with an executory devise over was the infant heir of the testator, and was about to cut down timber improvidently. The limitation was as stated by Cruise, 6 Cruise, 428, 429 ; and the infant, though seised of the legal estate in fee, was entitled to the rents and profits only until he attained twenty-one, i. e., for a chattel interest. After that he was to become trustee for his sisters; and, even according to the report in Atkyns, the circumstance of the infant being a trustee for the benefit of his sisters was mainly relied upon in granting the injunction. 3 Atk. 209.

Therefore, as to legal waste, I think there is no authority to outweigh the considerations which, upon principle, lead strongly to the conclusion that, so far, the injunction ought to be dissolved.

Had there been a charge in the bill, supported by evidence, that the cutting down of the ornamental and immature timber was malicious, I should have entertained no doubt that this court ought to interfere by injunction. Tenant in fee-simple, subject to an executory devise over, of a mansion surrounded by timber for shelter and ornament, cannot say that the property is his own, so that out of spite to the devisee over, he may blow up the mansion with gunpowder and make a bonfire of all the timber. The famous Raby Castle Case (Vane v. Lord Barnard, 2 Vern. 738) shows that such things may not be done by tenant for life sans waste, and tenant in fee with an executory devise over, actuated by malice, would not have greater liberty to destroy.

The waste which intervenes between what is denominated legal waste and what is denominated malicious waste, viz., equitable waste, may admit of a different consideration. But equitable waste is that which a prudent man would not do in the management of his own property. This court may interfere where. a man unconscientiously exercises a legal right to the prejudice of another; and an'act may in some sense be regarded as unconscientious if it be contrary to the dictates of prudence and reason, although the actor, from his peculiar frame of mind, does the act without any malicious motive. The prevention of acts amounting to equitable waste may well be considered as in furtherance of the intention of the testator, who, no doubt, wished that the property should come to the devisee over in the condition in which he, the testator, left it at his death ; the first taker having had the reasonable enjoyment of it, and having managed it as a man of ordinary prudence would manage such property were it absolutely his

own. In the present case, the devise being by the testator of “ all his said mansion-house and estate at Brattleby and North Kelsey, with the appurtenances,” there would be great difficulty in distinguishing for this purpose between the mansion-house and the ornamental timber. Indeed, Mr. Daniel contended that, in the absence of malice, this court could not interfere to protect the mansion-house. I put to him hypothetically, in the course of his able argument, the supposition that a mediæval castle is devised to A. in fee, subject to an executory devise over to B. in fee, and that A. from a sincere dislike of turrets and moats, and a genuine love of roses and lilies and gravel walks, and believing that B. and all other sensible men must have the same taste, declares that he means to throw down all the buildings and to convert the site of the castle into a flower-garden, and begins with setting men to strip the lead from the roof of the donjon tower. A bill being filed by B. for an injunction, would this court interfere? Mr. Daniel answered : “ A., acting bona fide — No," Nevertheless I cannot help thinking that in spite of A.'s bona fides, what A. contemplated would be in the nature of a destruction of the subject devised, and would certainly be in contravention of the intention of the devisor, so that B. would be entitled to an injunction. It may be said that this is an extreme case, but it is by an extreme case that the soundness of a principle is to be tested. The presence or absence of a bad motive will not alone enable us to draw any satisfactory line between what is to be considered malicious and what is to be considered equitable waste, and no line to regulate the interposition of a court of equity by injunction can well be drawn other than the recognized and well-established line between legal and equitable waste. The application of this to the facts of particular cases may sometimes be attended with difficulty ; but the principle on which the line is to be traced is known and invariable.

I am willing, with Vice-Chancellor Page Wood, to accept the clew by which Lord Justice Turner, in Micklethuait v. Micklethwait, 1 De G. & J. 504, 524, proposed to solve the difficulty: “ If a devisor or settlor occupies a mansion-house, with trees planted or left standing for ornament around or about it, or keeps such a mansion-house in a state for occupation, and devises or settles it so as to go in a course of succession, he may reasonably be presumed to anticipate that those who are to succeed him will occupy the mansion-house ; and it cannot be presumed that he meant it to be denuded of that ornament which he has himself enjoyed." However, I cannot go so far as the Vice-Chancellor, who is reported to have added : “ This reasoning obviously applies to every case of an estate limited so as to go in a course of succession.” - The tenant for life, sans waste, is as much owner of the timber as the tenant in fee. Their legal rights in this respect are identical.” Turner v. Wright, John. 740-751. Where an estate tail is created with successive estates tail in remainder, the estate entailed is “ limited to go in a course of succession,” but a tenant in tail is dispunishable of equitable as well as legal waste, because he may at any time bar the entail, and give himself a pure and absolute fee-simple. Again, a tenant for life sans waste can hardly be said to be as much owner of the timber as the tenant in fee; for although the tenant for life (avoiding equitable waste) may fell and dispose of the timber in his lifetime, were he to sell growing trees they would go to the remainder-man or reversioner, if not severed from the soil in bis lifetime; whereas the tenant in fee might by sale or conveyance give the purchaser an absolute and permanent interest in the trees against all the world. Nevertheless I think that the rights and liabilities of tenant for life sans waste may be taken as a measure of the rights and liabilities of devisee in fee, subject to an executory devise over.

The only analogy at all unfavorable to this view of the case is that of tenant in tail, with the reversion in the Crown, and tenant in tail under an Act of Parliament which precludes the barring of the entail. Such tenants in tail are considered dispunishable of waste ; this being an incident of tenancy in tail, probably arising from the power which generally subsists of barring the entail, and it not having been thought fit to make an exception in respect of those rare cases in which the power of barring the entail is withheld. But in the Marlborough Case, 3 Madd. 498, although the court would not interfere on the mere ground that the tenant in tail was prohibited by Statute from barring the entail ; yet, having regard to the enactment " that Blenheim House should in all times descend and be enjoyed with the honors and dignities of the family,” it was held that the court ought to interfere not only to prevent the destruction of the house, but also to protect the timber essential to the shelter and ornament of the house. 3 Madd. 549.

There is an analogy which entirely accords with the distinction made by the Vice-Chancellor in this decree between legal and equitable waste, viz., the case of " tenant in tail after possibility of issue extinct,” who is dispunishable of legal waste in respect of the estate of inheritance which was once in him, but may be restrained by injunction from committing equitable waste, this being an abuse of his legal power.

For these reasons I think that the decree of the Vice-Chancellor, as he pronounced it, should in all respects be affirmed, and that the appeal must be dismissed with costs.

Mr. Rolt, Sir Hugh Cairns, and Mr. Kay, for the plaintiff'; Mr. Daniel and Mr. Speed, for the defendant.



(Reported L. R. 18 Eq. 306.] WILLIAM Philip HONYWOOD by his will devised all his real estates , to trustees, upon trust to manage the same, and, after certain payments therein mentioned, to pay the rents and profits to his wife during her life or widowhood, with remainders over.

The testator died in 1859, and the suit was instituted by Mrs. Honywood for the administration of his estate. Various inquiries had been directed by the decree, and orders had been made from time to time for felling part of the timber on the estate, and directing that some part of such felled timber might be used for repairs on the estate, and that the remainder might be sold, and the proceeds paid into court and invested, and the income thereof paid to the widow as tenant for


It appeared that part of the money thus paid into court represented the proceeds of the sale of trees, which, according to the evidence of the agent for the estate, were ripe and fit to be cut, and would not improve but lessen in value, and that it would be for the benefit of the estate if they were cut.

The question which came before the court, on further consideration of the suit, was, as between the plaintiff, as equitable tenant for life, and the remainderman, whether the proceeds of the sale of the trees, which were felled in the regular course of thinning, or which were fit to be cut, and would not improve by standing, and which were injurious to the other timber, belonged absolutely to the plaintiff, or whether she was only entitled to the income thereof when invested.

Mr. Fischer, Q. C., and Mr. Hanson, for the plaintiff.

Mr. Southgate, Q. C., and Mr. Freeling, for the trustees of the will, and Mr. Crossley, for the heir-at-law.

Sir G. JESSEL, M. R. As I understand the law, it is this : The tenant for life may not cut timber. The question of what timber is, depends, first, on general law, that is, the law of England; and, secondly, on the special custom of a locality.

By the general law of England, oak, ash, and elm are timber, provided they are of the age of twenty years and upwards, provided also they are not so old as not to have a reasonable quantity of usable wood in them, sufficient, according to a text-writer (see Gibbons on Dilapidations, p. 215; Countess of Cumberland's Case, Moore, 812; Herlakenden's Case, 4 Rep. 63 b), to make a good post. Timber, that is, the kind of tree which may be called timber, may be varied by local custom. There is what is called the custom of the country, that

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