Waste. It is laid down by text books of great authority, following Lord Coke, that it is waste to build a new house, and to pull it down again is waste also, but it was decided by Sir George Jessel in 1875, in a well-known case, that the lessee of land who erects a building thereon, without the consent of his lessor, does not commit waste unless it can be shown that such building is an injury to the inheritance (1). Waste is either voluntary or permissive (2). Waste is voluntary when it consists in acts. The chief instances of such waste being the felling of timber, destroying or damaging buildings, opening mines or pits, or changing the course of husbandry. Permissive waste consists in that passive line of conduct which permits decay rather than be at the trouble or cost of preventing it-e.g., suffering buildings about the premises to fall into ruin. Courts of Equity, as was said by Lord Bramwell in a celebrated case, have always declined to interfere against mere permissive waste, and now, under the Judicature Acts, in all cases of conflict the rules of equity are to prevail. It has accordingly been decided that a tenant for life is not liable for mere permissive waste (3). Formerly by the operation of certain conveyances which were said to have a "tortious operation," viz., feoffments, fines, and recoveries, a tenant for life might grant the fee, but fines and recoveries are now abolished (3 & 4 Wm. 4, c. 74); and it is (1) Burton's Law of Real Property, p. 235; Jones v. Chappell, 20 Eq. 539; and see as to ameliorating waste: Doherty v. Allman, 3 App. Cas. 709. (2) The different classes of persons who may or may not commit the different kinds of waste fall naturally under four graduated groups, viz. :— (1) Those who may not commit any waste whatever, tenants at sufferance, bishops, parsons, vicars, and other ecclesiastical persons and copyholders; (2) Those who may not commit voluntary, but are not liable for mere permissive waste, tenants at will, tenants for years, not being bound to repair, tenants for life impeachable of waste; (3) Those who can commit legal but not equitable waste, tenants in tail after possibility of issue extinct, tenants in fee subject to an executory devise over, tenants for life without impeachment of waste; (4) Those who can commit any waste (and even a bond to restrain them from doing so is void), tenants in tail, tenants in fee simple unless copyholders. Shearwood's Real Property, 3rd ed. p. 31. (3) Powys v. Blagrave, 4 De G. M. & G. 448; Barnes v. Dowling, 44 L. T. 809, and cases there cited; Re Cartwright, W. N. (1889) 101; Edwards' Compendium, 61; see also Woodhouse v. Walker, 5 Q. B. D. 404, and as to the liability of a tenant for years for permissive waste: Davies v. Davies, 38 Ch. D. 499. In a case decided in 1889, In re Cartwright, Avis v. Newman, 41 Ch. D. 532, Kay, J., said that from the time of the statutes of Marlborough (52 Hen. 3), and of Gloucester (6 Edw. 1, c. 5), to the present day it could not be shown that damages had ever been recovered by a remainderman against the executor of a tenant for life on the ground of permissive waste, and such authority as there was upon the subject was against the existence of such a right. provided by the Property Amendment Act (8 & 9 Vict. c. 106), sect. 4, that a feoffment shall not have a tortious operation. waste. แ Equitable waste" for which, as has been said, a tenant for life Equitable is liable, although his estate has been granted without impeachment of waste, consists of such acts as pulling down or dismantling a family mansion, or felling ornamental timber; and the Court of Chancery restrained such proceedings on the ground that where the testator (or settlor) gave these powers to the tenant for life, he intended them to be used fairly. Accordingly the tenant for life was restrained, because though he had legal powers he was not using them fairly; he was making an unconscientious use of his powers, and abusing them so as to destroy the subject of the settlement (post, p. 598). What are the rights of a tenant for life in respect of trees? Trees. This question was most carefully considered by the late Sir George Jessel in a well-known case, and answered as follows:"The tenant for life can cut all that is not timber with certain exceptions. He cannot cut ornamental trees, and he cannot destroy germins,' as the old law calls them, or stools of underwood, and he cannot destroy trees planted for the protection of banks, and various exceptions of that kind; but, with those exceptions, which are waste, he may cut all trees that are not timber, with again an exception that he must not cut those trees which, being under twenty years of age, are not timber, but which would be timber if they are over twenty years of age. If he cuts them down he commits waste, as he prevents the growth of the timber. There is also this qualification that the tenant for life may cut down oak, ash, and elm under twenty years of age, provided they are cut down for the purpose of allowing the proper development and growth of other timber that is in the same wood or plantation" (1). It is now provided by the Judicature Act, 1873 (2), that an estate for life without impeachment of waste shall not confer, or be deemed to have conferred, upon the tenant for life, any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate. Having thus noticed the principal characteristics, or "incidents" as they are technically called, of an estate for life, we may revert to some of the peculiar kinds of life estates which we have previously mentioned. These are the estate in curtesy, estate in dower, and the estate pur autre vie. (1) Honywood v. Honywood, L. R. 18 Eq. 306. (2) 36 & 37 Vict. c. 66, s. 25. Curtesy. Dower. The husband's estate as tenant by the curtesy is a life estate to which a husband is entitled in certain estates in lands of freehold tenure in which his wife has an estate of inheritance, i.e., in fee simple or tail, whether legal or equitable, in possession, and either in severalty or as tenant in common, and provided there has been issue of the marriage born alive and and capable of inheriting the land. Until the birth of such issue, the husband's interest in his wife's land is confined to an estate during their joint lives. Where, however, land belongs to a married woman as her separate property, whether by the rules of equity or under the Married Women's Property Act, 1882, her husband has no interest therein during her life, nor after her death, except in the event of her dying intestate, in which case he becomes tenant by the curtesy as if the land had not been separate property (1). Dower, in cases within the Dower Act, i.e., in all cases where the marriage has taken place after the 1st of January, 1834, is an estate for life, to which (where it is not prevented, barred, or lost) a woman becomes entitled on the decease of her husband, in one-third of the lands and tenements to which he died legally or equitably entitled, for any estate of inheritance in possession otherwise than in joint tenancy, and which any issue which she might have had might by possibility have inherited. If for the words" to which he died legally or equitably entitled" we substitute "of which he was seized in deed or in law at any time during the coverture," this proposition expresses the law as to cases not within the Dower Act, i.e., where the marriage took place before the 1st of January, 1834 (2). The effect of the Dower Act, which applies to all women after the 1st of January, 1834, is to put the widow's right to dower wholly in the power of the husband. The Act provides that no widow shall be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime or by will; that all partial estates and interests, and all charges created by any disposition, or will, of a husband, and all debts, incumbrances, contracts, and engagements to which his land shall be subject or liable, shall be valid and effectual as against the right of the widow to dower, and also enables the husband to bar his wife's right to dower by any declaration made for that purpose in any deed or in his will. The Act, however, on the other hand, improved the position (1) See Eager v. Furnivall, 17 Ch. D. 115 (post, p. 161). (2) Smith's Real and Personal Property, 6th ed. p. 220. of the widow to some extent by allowing her dower out of equitable estate (1). Under the custom of gavelkind, the widow's dower is a moiety of the estate, but only during widowhood (durante viduitate). By custom, dower may extend to the whole estate (see as to Copyholds, post, p. 193). autre vie. Allusion has already been made to the estate granted for the Estate pur life of another pur autre vie, as it is called. Under the old law if a tenant pur autre vie died without having alienated the estate in his lifetime, and leaving the cestui que vie surviving him, the land, unless it had been limited to the heir of the tenant pur autre vie as special occupant, might be taken possession of by any person and held by him during the remainder of the life of the cestui que vie. This right of possession was called "general occupancy." General occupancy was abolished by the Statute of Frauds (2), and the law was amended by subsequent statutes (3), until finally it has been provided by the Wills Act (*), that the tenant pur autre vie may dispose of his estate by will; and, failing any such disposition, the estate is to pass to the heir as special occupant if so limited; and if there be no special occupant, it is to pass to the executor or administrator of the deceased tenant as if it were personal estate, and is to be dealt with accordingly. Whether in the hands of the heir or the executor or administrator, it is assets for the payment of debts (5). The law as to estates pur autre vie was much considered in a case which came before the Court in 1881, when it was characterised as "very anomalous and very singular." The Court in this case proceeded upon the principle which had been laid down many years before by Lord St. Leonards, that the analogy between estates pur autre vie and ordinary estate in fee simple ought to be supported as far as possible, and it accordingly decided that where an estate pur autre vie was limited to several persons in succession, the power of alienation (1) The following cases are important as to the law of dower: Lacey v. Hill, 19 Eq. 346; Dawson v. Bank of Whitehaven, 6 Ch. D. 218; Frampton v. Stephens, 21 Ch. D. 164; Re Thomas, 34 Ch. D. 166. (2) 29 Car. 2, c. 3, s. 12. (3) 14 Geo. 2, c. 20, 8. 9. (4) 7 Wm. 4, and 1 Vict. c. 26, s. 3 and 6. (5) See Chatfield v. Berchtoldt, L. R. 7 Ch. 192, where the law as to estates pur autre vie was much con- to the successive takers ought to be regulated as far as possible by the rules which would govern similar limitations of an ordinary estate in fee simple. In the course of his judgment, Fry, J., said: "When an estate pur autre vie is given to a man, or to him and his heirs, the most he can take is an estate for his own life, and any one who comes in after him takes, not through him, but as occupant of the estate. Originally any one who pleased was allowed to scramble for the occupancy after the death of the first taker, but this was found to be so inconvenient that he was allowed to appoint by will a special occupant. But still every one who came in after the first taker came in as an occupant, and not as deriving title through him. Such a mode of devolution is very different from that of an estate in fee simple. But still, for the sake of convenience, the Legislature and the Courts have enforced an analogy between these estates pur autre vie and estates in fee simple, and have given effect to it with regard both to the capacity and incapacity of alienation by the first taker" (1). (1) In re Barber's Settled Estates, 18 Ch. D. 624, 627. |