Whalley, in trust to preserve contingent remainders, with remainders to his sons and daughters, in such manner, and for such estates as were therein before limited to the issue of the plaintiff, with divers remainders over, and with the ultimate remainder to the testator's own right heirs. The testator died on the 7th of March, 1813, leaving the plaintiff, his only daughter, his heir-at-law. The plaintiff was unmarried: the defendant, James Salmon Whalley, an infant, was the eldest son of the defendant Hyde Salmon Whalley, and was entitled to the first estate of inheritance under the will. The bill alleged that there were growing, upon the testator's estates, several extensive woods and plantations of oak, ash, elm and other timber trees, which were standing much too closely together, and, by reason thereof, were going very much to decay, and which, if permitted so to stand, would, every year, become of much less value, and that, if any part thereof should be cut down, and the woods and plantations properly thinned, it would be greatly for the advantage of the persons entitled to the inheritance of the estates. The bill prayed that it might be referred, to the Master, to inquire what timber there was growing upon the estates which was in a decaying condition by reason of its standing too thickly in the woods and plantations; and that such part thereof as the Master should from time to time direct, might be cut down and sold, and that the money arising therefrom might be put out at interest, under the direction of the Court, on Government or other security, and that the interest might be paid, to the plaintiff, during her life; and that the money so invested, might be limited and settled to such uses and for the benefit of such persons respectively as the said estates comprised in the will were limited and settled. The defendant Hyde Salmon Whalley, by his answer, admitted the allegations in the bill as to the timber, and said that if part of it were cut down and the woods and plantations properly thinned, it would be for the advantage of the persons entitled to the inheritance of the premises, and submitted to the judgment of the Court, whether the plaintiff was entitled to have the interest of the proceeds of the sale of the timber paid to her during her life. * The infant defendant submitted his interest to the protection of the Court. By the decree it was referred to the Master to inquire and state whether there were any and what timber trees standing in the R.R.-VOL. LIII. 5 TOOKER V. ANNESLEY. [236] [ *237 ] TOOKER ፖ. ANNESLEY. [ *238 ] woods and plantations on the testator's estates which were in a state of decay, and which would not improve by standing, or the standing of which would be prejudicial to the other trees, and which it would be for the benefit of all parties interested in the estates to have felled and sold. The Master reported that the timber trees and saplings described in the schedule to his report were in a state of decay, and would not improve by standing; and that he was of opinion that it would be for the benefit of all parties interested in the said estates that the trees and saplings should be felled and sold. By the decree on further directions, it was ordered that the trees and saplings mentioned in the report should be felled and sold, and the proceeds brought into Court and invested. Mr. Knight and Mr. Losh, for the plaintiff, now contended that, as the timber had been felled and *sold, not wrongfully, but by order of the Court, the plaintiff was entitled, for her life, to the dividends of the stock in which the proceeds had been invested: that it was beneficial, to the persons in remainder, that the timber should be cut, as it was going to decay and would not improve by standing; so that they would get the value of it when it was at its greatest perfection, and the tenant for life would lose the interim use and enjoyment of it: Wickham v. Wickham (1), Delapole v. Delapole (2). Sir E. Sugden, for the defendants: The plaintiff is tenant for life, subject to impeachment for waste. She may, however, cut timber for repairs: but she is not entitled to the value of a single tree. If the Court allows her to receive the income of the stock in which the produce of the timber has been invested, she will take two-thirds of the value; for the interest of the tenant for life is generally estimated at two-thirds, and the interest of the reversioner at one-third. The timber has been felled at the instigation of the tenant for life. The Court had no power to break into the settlement, and order the timber to be felled, the tenant in tail being an infant, and, therefore, incapable of consenting much less has the Court any power to give to the tenant for life a large proportion of the proceeds, when she is not entitled to the value of a single tree, except for necessary repairs: Bewick (1) 19 Ves. 419. See 33 R. R. 188. (2) 17 Ves. 150. See 33 R. R. 188. v. Whitfield (1), Mildmay v. Mildmay (2). There is an error in the report of the former case, which is corrected in the note. The case of Delapole v. *Delapole cannot be considered as an authority. One party asked for the reference, and the other submitted to it; and, therefore, the attention of the learned Judge was not drawn to the question. Wickham v. Wickham was a peculiar case. It is not clear that, in that case, the tenant for life was not entitled to cut the timber and the order referring it to the Master to inquire what timber ought to be cut was made by consent. In Osborne v. Osborne (3), it appears, on referring to the Registrar's book (4), that the order was made by arrangement between all the parties, and after the MASTER OF THE ROLLS had hesitated to make the order. So that nothing can be more meagre, in point of authority, than the claim of the plaintiff in this cause, to be paid the interest of the timber-money, for her life. : THE VICE-CHANCELLOR : In this case the bill was filed by Miss Tooker, who is tenant for life of the estate in question, subject to impeachment for waste, but with a power of cutting down such timber as may be necessary for the repairs of the estate. The bill was filed against the tenant for life in remainder, and his son, who is the first tenant in tail in existence, and it is represented that there was timber upon the estate which was going to decay: and the bill prayed that it might be referred to the Master to inquire what timber there was growing upon the estate which was in a decaying condition by reason of its standing too thickly in the woods and plantations, and that such part thereof as the Master should from time to time direct might be cut down and sold. An order has been made under which timber has been *cut, and now the question is what is to be done with the produce of the timber which has been sold. insisted, by the counsel for the defendant, that there is no authority by which, in a case like the present, the Court is justified in giving the income of the fund arising from the sale of the timber to the -tenant for life in possession. With respect to the case of Bewick v. Whitfield, it appears, when it is contrasted with the extract from the Registrar's book which is contained in a note upon that case, that it is not rightly reported; for it appears that not only the facts of the case, but also what is represented as the LORD (1) 3 P. Wms. 266. It was (3) Cited 19 Ves. 423. TOOKER v. ANNESLEY. [ *239 ] May 24. [ *240 ] TOOKER v. ANNESLEY. [ *241 ] CHANCELLOR's judgment, are not correctly given. But it is observable that the LORD CHANCELLOR, in his judgment, admits that, if there be any damage done to the tenant for life, he ought to have compensation in respect of that damage. There are not many authorities upon the question now before me; but I apprehend that the principle upon which the Court acts in directing timber to be cut in cases like the present, is not the personal benefit of the parties, but the benefit of the estate itselfthe inheritance. That proposition is laid down, by the present MASTER OF THE ROLLS, in a case of Hussey v. Hussey (1). Now it is quite clear, from Lewis Bowles's (2) case, that, where there is a tenant for life unimpeachable of waste, or there is no tenant for life unimpeachable of waste, if timber is severed from the estate, by the act of a trespasser or by a tempest, the timber belongs either to the person who represents the inheritance as being tenant for life without impeachment *of waste, or to the person who has the inheritance, in case there be no such tenant for life. It is also a settled rule, in this Court, that, whether there be an estate unsettled, or an estate settled, no person who commits a trespass, shall, by his own wrong, have any benefit of the timber cut. With respect to the unsettled estate, the point was decided in the case of Tullet v. Tullet (3). There an infant was seised in fee; and the guardian, who was the mother, cut down the timber, as upon the part of the infant. The heir of the infant brought his bill to have the money, which arose from the sale of the timber, secured; and the Court held that no benefit whatever should result to a person who might become the sole next of kin of the infant; but that the money should be reserved for the benefit of the party entitled to the inheritance. With respect to the case of a settled estate, what took place in the case of Williams v. The Duke of Bolton (4) shows that a tenant for life who is impeachable of waste, shall have no benefit from the timber that has been cut down. In this particular case, the plaintiff, who is tenant for life, represents that, though she herself has no right to cut the timber, it is for the benefit of the inheritance that the timber should be cut. Now what have been the decisions upon the question now under consideration? There seems to have been a considerable hiatus in the decisions, from the time of Lord ALVANLEY, down to the case of Lewis v. Cray, which is mentioned, by Sir WILLIAM GRANT, in (1) 21 R. R. 275 (5 Madd. 44). (3) 1 Dick. 322; S. C. Amb. 370. (4) 4 R. R. 21 (1 Cox, 72). the case of Wickham v. Wickham (1). It appears, in Williams v. The Duke of Bolton, that, if the tenant for life had not done the wrongful act, Lord THURLOW would have permitted him to receive the dividends of the stock in which the produce of the timber was invested and it appears, from what Sir WILLIAM GRANT says, in the case of Wickham v. Wickham, of the case of Lewis v. Cray, which was before Lord Rosslyn in 1798, that his Lordship gave the interest of the timber-money to the tenant for life, as Lord ELDON did in the case of Osborne v. Osborne (2), and it also appears, by some of the multifarious proceedings which took place in that cause, the whole of which I have read over in the Registrar's book, that not only was the interest given to the tenant for life, but part of the money which had arisen from the sale of the timber was actually applied in discharging the incumbrances which the tenant for life was bound to keep down; and in Wickham v. Wickham, after the matter had been fully argued, Sir WILLIAM GRANT held that he was bound by what both Lord THURLOW and Lord ROSSLYN had done. And then there is the decision of Sir WILLIAM GRANT, in Wickham v. Wickham, in the year 1814, to the same effect as Lord ELDON's. I think, therefore, that there is not only sufficient principle, but that I am actually bound, by the authorities, to say that, in this case, the course that has hitherto been adopted, ought to be persevered in, and that the costs of all parties ought to be paid out of the fund which has arisen from the sale of the timber, and that the tenant for life is entitled to the interest of the fund remaining after the payment of the costs. LORD ALDBOROUGH v. BURTON (3). (2 My. & Keen, 401-403.) A plaintiff who is a peer, and out of the jurisdiction, must give the usual security for costs. THE petition was presented by the plaintiff, Lord Aldborough, who was residing at Carlsbad in Bohemia; and it prayed for the discharge of an order obtained by the defendant, requiring the plaintiff to give security to answer the costs of the suit. The ground upon which the discharge of the order was sought was, that Lord Aldborough was a peer of Ireland, and exempted, by reason of his (3) R. S. C., Ord. LXV., 1. 6. (1) 19 Ves. 423. 1834. July 26. Rolls Court. [2 My. & K. |