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him, which is fully argued out, is this: It is said, if it had been without impeachment of waste by any writ of waste, then, by old authority, the action only would be discharged, and the lessor, after the fall of the timber, might nevertheless seize it; but when it is without impeachment of waste altogether, then the effect is, that the tenant for life cannot be interfered with in any manner in respect of that waste; and as soon, therefore, as he has exercised his power thereupon, the timber at once becomes his own property. But how does that prove, that, when the trees are felled by the wrongful act of some one preceding him, before his property has arisen thereupon, the property is in him? To say the least, that is a doubtful proposition; and that point I am asked to decide, not having the heir before me. The question is, whether such a point as that ought to be decided without the presence of the heir, and against the heir. I think the answer is plain, that, without hearing the heir upon it, I can come to no such conclusion. And further than that I see no reason to go. There seems to be considerable reason for a contention by the heir that his position is just the same in respect of a person having a possible power, which may arise if ever his estate arises, as it is in respect of the contingent interests of unborn issue, in favor of whom the law does not interfere to prevent the heir's right accruing at once, so as to enable him to bring trover immediately after the timber is cut. But there are further difficulties in the plaintiff's way, if he chooses to treat this as a tort. In the first place, of course the tort arose when the act was committed; and, if the plaintiff had a remedy by an action of trover, I apprehend the action should have been brought some twenty years ago, when the act took place. That is the first difficulty. But, secondly, suppose the plaintiff has any right of action now of any kind, his remedy is clearly at law. He is the legal owner, and if he chooses to proceed at law by an action of trover, there is his remedy. In what respect does he want the aid of this court? He asks for no injunction; he asks for no account; he asks nothing which he has not got at law. Why should he come here to insist on his right? It is put in this way: It is said, a person commits a wrong, and hands over the fund which has resulted as the produce of his wrong to another, and says, "Take care of that; I have injured somebody or other, and I ask you to hold the proceeds for anybody who may be interested in them." I apprehend, even supposing the form of action might be varied, and that it might be an action for money had and received to plaintiff's use, the remedy would still be at law. It is not for me to determine the question, whether it should be an action of trover, or an action for money had and received. Still, taking it either way, what does the plaintiff come here for? In truth, it is only by treating the cutting as rightful, as an act which the court would recognize, that the plaintiff can have any ground for coming to this court. On that view, considering that the trustees were applied to in the first instance, there might be ground for directing an inquiry whether this cutting ought to be regarded as an act of the trustees, which the court would recognize, as it

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did in Waldo v. Waldo. If that were so, the plaintiff would be entitled to the whole of the money produced; but he would be clearly wrong in asking for the intermediate interest. If, on the other hand, he says: "You, the trustee, having received this sum of money as the proceeds of a wrongful act, ought to have held it for all the persons interested; you should not have paid any income to the wrongdoer himself, but you should have held it for me,” that contention entirely fails, because, if the act was wrongful, the remedy is at law, and not here. If he chooses to treat the timber as rightfully cut, then the tenant for life was entitled to interest, and all the plaintiff can get is the principal, his title to which does not seem to be disputed. What seems right for me to do is this, either to dismiss the bill altogether, if the plaintiff insists on treating the cuttings as wrongful acts from the commencement, in which case I ought to dismiss it with costs; or else, if the plaintiff is content to treat the cuttings as rightful, then to make a decree for the payment to him of the capital derived from the proceeds of that timber. But I cannot do this unless the plaintiff waives any inquiry as to whether the cutting was rightful or not.

Mr. Rolt having consented to waive any inquiry, and to treat the timber as rightfully cut, the minutes of decree were as follows:

Dismiss the bill, with costs, as against the representatives of George William Gent and John Gould Gent; and, the plaintiff not asking any inquiry whether any of the timber was wrongfully cut, the funds in the hands of the trustee to be transferred to the plaintiff; the trustee's costs to come out of the fund.1

TURNER v. WRIGHT.

CHANCERY, BEFORE LORD CAMPBELL, C. 1860.

[Reported 2 De G. F. & J. 234.]

THE LORD CHANCELLOR. In this case the plaintiff, by his bill, prayed an injunction "to restrain the cutting of any timber, or at any rate of any ornamental timber," growing upon the lands devised in fee to the defendant, subject to an executory devise over to the plaintiff.

1 "The only point remaining is, whether this tenant for life, not being tenant without impeachment of waste, has any property in the underwood cut, before his estate comes into possession. It is rightly assimilated to the case of tenant for life without impeachment of waste, supposing it only to relate to timber and not to underwood. Upon that it is clear, that tenant for life without impeachment of waste cannot maintain trover. That was decided in the Court of King's Bench a few years ago upon a case reserved at the assizes upon the Home Circuit, and I think in Kent, which, I suppose, is not in print, or it would have been found by the counsel. There it was determined, that notwithstanding an estate for life without impeachment of waste in being, yet timber falling or cut vested immediately in the owner of the inheritance; for tenant for life without impeachment of waste has no right to the timber cut before his possession." Per BULLER, J., in Pigot v. Bullock, 1 Ves. Jr. 479, 483, 484. See Baker v. Sebright, 13 Ch. D. 179.

2 Only the opinion is given.

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 has 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 Micklethwait 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

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