other sons in tail, with estates to trustees to preserve the contingent remainders, remainder to the Duke in fee. The Duke had no son, but Mrs. Orde had a son born, who died soon after. The Duke cut down timber. Mrs. Orde had afterwards another son, who was a defendant in the cause. On the question to whom this timber should belong, Lord Thurlow was of opinion, that as it was not competent for the Duke to cut down timber in respect of his life estate, he should not take advantage of his own wrong. That the timber, although by severance it became personalty, was yet bound as far as it could be, to the uses of the realty. That the administrator of Mrs. Orde's first son was certainly not entitled; the child being dead at the time of the timber cut, neither could her second son claim it; for although he had a vested estate of inheritance, yet such estate was liable to be divested by the Duke's having a son. He therefore thought nobody was then entitled to it; but directed the Duke to pay into court the money for which the timber had been sold, and the interest thereof. Duchess of 374. 49. In pursuance of the above direction, the Duke Powlett v. of Bolton paid in the money arising from the tim- Bolton, ber; upon his death in 1794 Mr. Orde, the husband 3 Ves. Jun. of Mrs. Orde, as administrator of his eldest son, 1 Cox. Rep. presented a petition to have the money paid to him; 72. the Court directed a bill to be filed. The defendants were the second son, who was tenant in tail in remainder of the estates, and the Duchess of Bolton, executrix of the late Duke. Lord Loughborough said, when the timber was cut, no doubt, at law, the Duke would have taken, being the first owner of the inheritance. But the Court very properly held, that he should not, by Dare v. May be cut Claxton v. 2 Vern. 152. a fraud on the settlement, which made him tenant for life, gain that advantage to himself in his reversion in fee; considering it as a wrong upon the settlement. The consequence was, that part of the property, which by the fraud was taken from the settlement, ought to be restored to it; that would carry it to all the uses. Mrs. Orde would be entitled to an estate for life, the children to estates in tail male; and he could not help the consequence of the reversion in fee going to the Duke. 50. The Court of Chancery has in some cases directed the timber growing on an estate, whereof a person was tenant for life, to be cut down for the purpose of paying legacies and debts, charged upon the inheritance. 51. A person devised his estate to his wife for life, remainder to A. B. and his heirs, upon condition that he should pay several legacies, at the times appointed in his will; if he did not pay them accordingly, the estate to go over. A. B. filed his bill in the Court of Chancery, stating that there was a great quantity of timber on the estate, which belonged to him; that he was willing it should be sold, and the legacies paid, but that the widow, who had barely an estate for life, and could make no profit thereof herself, in combination with the other remainder-man, designing to make the plaintiff forfeit his estate, by non-payment of the legacies; had refused him permission to fell the timber; though he offered satisfaction for any damages she should thereby sustain. He therefore prayed that he might have liberty to cut down and carry off the timber, and sell it for payment of the legacies. The Court thought it reasonable that the plaintiff should have liberty to cut down and take off the tim ber; making satisfaction to the widow for breaking the ground &c. and referred it to the Master to see. what quantity of timber was necessary to be felled for payment of the legacies, and what might be conveniently spared. 52. The Court of Chancery has also directed timber, in a state of decay, to be cut down for the benefit of the person entitled to the inheritance; provided no damage were done to the tenant for life. 2 Vern. 218. 53. Sir G. Ireland by deed granted a term for 500 Aspinwall years to the defendant and others, of his estates in v. Leigh, Lancashire, to commence after his decease, for payment of debts and annuities; and by will devised the reversion and inheritance thereof to the plaintiff for life, without impeachment of waste, remainder to his first and other sons in tail. The testator being dead, and the trustees in possession under the trust, which was like to have a long continuance; the plaintiff brought his bill, setting forth that he was reduced to great want, that there was much decaying timber on the estate, which the trustees had no power to cut down, and prayed he might be permitted to take off the timber; allowing for what damage he did the estate. Although it was objected that the plaintiff might die before the trust was performed, and till then could not be let into possession; therefore to decree that he in the mean time might take off the timber, would be a prejudice to his sons, yet the Court decreed a commission to go, to take off timber for the plaintiff's relief and support, not exceeding £500. 54. A. was tenant for life, remainder, as to one Bewick v. Whitfield, moiety, to B. in tail, and as to the other moiety to 3P. Wms. an infant. There was timber upon the premises 267. greatly decaying, whereupon B. the remainder-man brought a bill, praying that the timber which was decaying might be cut down; and that B. and the infant might have the money. The tenant for life insisted on having a share of the money. Lord Talbot said, 1. The timber while standing was part of the inheritance, but when severed, either by the act of God, as by tempest, or by a trespasser, belonged to him who had the first estate of inheritance in fee or in tail, who might bring trover for it. 2. The tenant for life ought not to have any share of the money arising from the sale of the timber; but since he had a right to what might be sufficient for repairs, and botes, care must be taken to leave enough upon the estate for that purpose; and whatever damage was done to the tenant for life on the premises ought to be made good to him. 3. With regard to the timber plainly decaying, it was for the benefit of the persons entitled to the inheritance that it should be cut down, otherwise it was of no value; but this should be done with the approbation of the Master; and trees, though decaying, if for the defence and shelter of the house, or for ornament, should not be cut down. B. to have one moiety of 1 Bro.R. 195. the money, and the other moiety to go to the infant. 55. It has been usual from very ancient times, where estates for life are expressly limited, to insert a clause that the tenant for life shall have the lands, "without impeachment of waste;" which words were 1 Inst. 220 a. originally held to exempt the tenant for life from the 11 Rep. 82 b. penalties of the statute of Marlbridge only; not to Vide Lee v. Alston, Of the " without give the property of the thing wasted. But it is laid down by Lord Coke that the words absque impetitione vasti, that is, without any challenge or impeachment of waste, enable the tenant for life to cut down timber, and convert it to his own use. Otherwise if the words were, "without impeachment of any action of waste." For then the discharge would extend to the action only, and not to the property of the timber. 56. To the words, "without impeachment of 1 Ves. 265. waste," are sometimes added, with full liberty to commit waste. And, in some instances, words of restriction are inserted, as, voluntary waste in houses only excepted. In the case of Garth v., Cotton, which will be stated in Title XVI. Remainder, the words were," without impeachment of waste, except voluntary waste." And Lord Hardwicke held that there the tenant was punishable for wilful waste, and had no interest in the timber, otherwise than the mast and shade, and necessary botes. But some eminent lawyers have lately held that the words "voluntary waste" only extend to houses, and not to timber trees. 55. 57. It has been long fully settled that the words, Pyne v. Don, without impeachment of waste, give to the tenant for 1 Term R. life the property of all timber trees cut down, or blown down; and of all timber parcel of a building blown down. It has however been held, in a modern Pigot v. case, that a tenant for life without impeachment of waste cannot maintain trover for timber cut during 479. a prior estate; but that it vests immediately in the owner of the inheritance. Bullock, 1 Ves. Jun. 58. Where a tenant for life, without impeachment Bray v. Tracy, of waste, makes a lease for years, and the lessee W.Jones, 51. commits waste, no action of waste will lie against him: for the lease is derived out of an estate privileged; and if waste lay, it must be against the tenant for life who made the lease; and he was dispunishable. |