it will in the course of time work its destruction by consumption or wear and tear, the question presented is whether the life tenant is entitled to the use of the specific property, or whether the executor must convert it into money and invest or pay over the money to the life tenant on taking security. The early rule, and the one which exists to-day where it does not conflict with the intention of the testator, was that where the bequest was not specific, but is a general bequest or bequest of a residue, the life tenant is not entitled to the possession of the property, and cannot consume or wear it out, but that the executor must sell and convert it into cash, and invest the sum realized or pay it over to the tenant for life on taking security. Cairns v. Chaubert, 9 Paige, 160-163; Covenhoven v. Shuler, 2 id. 132; Perry Trusts, § 547, and cases cited; Spear v. Tinkham, 2 Barb. Ch. 214; Rapalje v. Rapalje, 27 Barb. 610.

This is the rule where leaseholds, annuities and other interests which depreciate in value by lapse of time, constitute a portion or the whole of the estate bequeathed for life. Cairns v. Chaubert, Minot v. Tompson, 106 Mass. 584; Mills v. Mills, 7 Sim. 501; Litchfield v. Baker, 2 Beav. 481; Pickering v-Pickering, 2 id. 57; Fearns v. Young, 9 Ves. 552; Wooter v. Burch, 2 Md. Ch. 190; Eichelberger v. Barnitz, 17 S. & R. 293; Kinmouth v. Brigham, 5 Allen, 270.

The rule is clearly stated in Cairns v. Chaubert: "The case therefore falls within the general principle that when an estate for life or any other interest short of the absolute ownership is given in the general residue of the testator's personal estate, terms for years and other perishable funds or property which may be consumed in the using are to be converted and in- | vested in such a way as to produce a permanent capital; the interest or income of which permanent capital alone is to go to the owner of the life estate, or other particular estate in the testator's residuary property."

Where however the bequest of the property which is consumed in the using is specific, or it in any way appears that the life tenant was to have it in specie, the life tenant is entitled to the particular property as it is, and a remainder therein is void. Bell v. Warn, 4 Hun, 406; Matter of Gates, Hill v. Hill, Gillepsie v. Miller, 5 Johns. Ch. 21; Mansfield v. Mansfield, 75 Me. 509; S. C., 29 Alb. L. J. 295; Ballentine v. Spear, 2 Baxt. 273; Vancie v. Evans, 4 Cold. 240; Forsey v. Lutton, 2 Head, 184.

If a specific bequest of a leasehold or of an annuity or other interest which diminishes in value is made, the life tenant is entitled to enjoy it as it is, without sale or other interference on the part of the executor or remainderman; and if on the death of the tenant for life the interest has lost all its value, or has been destroyed by lapse of time, the remainderman must bear the loss. Alcock v. Sloper, 2 Myl. & K. 699; Collins v. Collins, id. 704; Bethune v. Kennedy, 1 Myl. & Cr. 114; Phillips v. Sargent, 7 Hare, 33; Lora v. Godfrey, 4 Mad. 455; Vaughan v. Buck, 1 Phila. 80; Pickering v. Pickering, 4 M. & Cr. 299; Matter of Gates, 99 N. Y. 100.

But the authorities agree on the proposition that the question is one of intention, and that even though the bequest is general-as of the entire estate or of a residuum-the tenant for life will have the right to use and consume the identical property bequeathed or enjoy all the benefits of the leasehold or annuity, notwithstanding the fact that the remainderman will never receive any interest under the bequest, if it is manifest that the testator intended that he should use the property as it is. Matter of Yates, Hill v. Hill, Spear v. Tinkham, pages 214, 215; Alcock v. Sloper, Collins v. Collins, Bethune v. Kennedy.

The portion of the opinion of the court in the Matter

|

of Yates already quoted is referred to on this point. The bequest in that case was general, and not specific, and yet the court held that the life tenant had a right to consume the hay, oats, etc., on the farm, and that she was not restricted to the interest on the proceeds thereof, because the testator clearly intended that she should use the property as it was at the time of his death.

If the executor pays or delivers to the life tenant, without taking security, funds or property in a case where the life tenant has no right to the possession of the same without giving security, and the property is lost to the remainderman, the executor is liable to him for the loss. Clark v. Clark, 8 Paige, 152-160.

Where the remainder is contingent, as where there is a gift of a life estate with a power of absolute dispo sition, the life tenant is always entitled to possession of the fund or property, and cannot be required to give security unless there is danger of loss. Flanagan v. Flanagan, 8 Abb. N. C. 412-422; Smith v. Van Ostrand, 64 N. Y. 278; Taggard v. Piper, 118 Mass. 315; McCarty v. Cozron, 101 id. 124; Stubbs v. Stubbs. 4 Redf. 177; Langworthy v. Chadwick, 13 Conn. 22; Cohen v. Cohen, 4 Redf. 48-53.

Nor can the life tenant in such a case be required to give an inventory of the property received. Emmons v. Cairns, 3 Barb. 243.

That the life tenant is always entitled to the possession of the fund or property, on giving security if he must, or without giving security when no security is required, there being no trust, is declared to be the law in numerous cases. See in addition to those already cited Denney v. Schoeffler, 24 Mo. 170; Giles v. Little, 104 U. S. 291; Green v. Hewitt, 97 Ill. 113; Cooper v. Pogue, 97 Penn St. 254; Parsons v. Winslow, 6 Mass. 169; Stuart v. Walker, 72 Me. 145; Mansfield v. Mansfield, 75 id. 509.

Where the property bequeathed consists horses, cattle, etc., the life tenant is entitled to the increase. Robertson v. Collier, 1 Hill Eq. 370; Holmes v. Mitchell, 4 Md. Ch. 163; Patterson v. High, 8 Ired. Eq. 52; Scott v. Dobson, 1 H. & McH. 160; Evans. Iglehart, 6 G. & J. 172; Calhoun v. Furgeson, 3 Rich Eq. 170; Woods v. Sullivan, 1 Swanst. 507.

But in some of the Southern States it has been held that the increase of slaves belongs to the remainder. man. Perry Trusts, § 546, and cases in note 2.

It frequently becomes important to the remainder man to determine whether an annuity has been given to another, or merely the interest on a specified sum. In the case of an annuity the sum is to be paid to the annuitant, even though such payment involves an encroachment on and ultimate destruction of the princi pal, because of the insufficiency of the income to satisfy the annuity. In such case the remainderman may lose a part or even the whole of the principal sum. What rules then are to govern the solution of this problem of annuity or no annuity?

In Pierrepont v. Edwards, 25 N. Y. 128, the testator gave his widow an annuity of $7,000, payable "out of the income of his estate." The court held that in case of deficiency in the income the balance must be paid out of the principal until exhausted. The only ques tion involved was whether the direction that the an nuity should be payable out of the income so qualified it as to take away the general right which an aunuitant has to resort to the principal to make good any insufficiency in the income. On this point the court said: "The leading principle of the cases is that when the testator bequeathes a sum of money, or which is the same thing, a life annuity, in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled merely by a direction in the will that the

money is to be raised in a particular way or out of a particular fund. Sir James Wigram, in Dickin v. Edwards, 4 Hare, 273."

But the question is always one of intention. Delaney v. Van Aulen, 84 N. Y. 16; Pierrepont v. Edwards, 25 id. 128.

In the last case the court said: "No positive rule of ready application to every case can be laid down, but each will depend upon a consideration of all the material provisions of the will to be construed, and the extrinsic circumstances respecting the testator's fainily and estate which may be fairly brought to bear upon the question of intent."

In Delaney v. Van Aulen the testator created a trust to receive the income and pay thereout an annuity of $500 to the plaintiff until he should attain the age of twenty-one years; after that the sum of $1,000 annually thereout. The court held that the annuity was not payable in any event, but only out of the income, and that no part of the principal could be resorted to to make good any dificiency in the income. The decision was based upon the language of the will and the surrounding circumstances. The court recognized the general doctrine already referred to, that a designation of the fund out of which the annuity was to be paid would not necessarily prevent its payment out of other fund, but declared that the question is always one of intention; did the testator intend the annuity should be paid in any event, or that it should be paid only out of the designated fund? This principle is very clearly expressed: "And the question arises in every such case which was the primary and most material portion of the testator's intent, and which was in his mind the incident to such primary intention, and this may be gathered from the context of the will, and from such extrinsic circumstances as are properly taken into view in such a case.'

In the following cases the mere designation of the fund, out of which the annuity is to be paid, has been held to have the effect simply to make the legacy a demonstrative one and not a specific bequest; while at the same time they recognize the general doctrine that the corpus cannot be invaded where it is clear that the primary intent of the testator was to have only the interest or income of the fund go to the life tenant, even though a specific sum is directed to be paid annually. Dickens v. Edwards, 30 Hare, 275; Mann v. Copland, 2 Mad. 223; Creed v. Creed, 11 Cl. & Fin. 491; In re Ward, 28 Bevan, 519; Watrous v. Smith, 7 Hun, 546.

Whether a deficiency in the annuity, owing to an insufficiency of income, can be made good out of surplus income in subsequent years, is a question that is not settled. On principle it would seem to be right to pay the annuitant such deficiency out of the income remaining after satisfying the annuity for that particular year, or such portion of the deficiency as the surplus will discharge; aud to continue such appropriation of the surplus toward the discharge of the deficiency until it is entirely wiped out. The testator has declared that the annuitant shall be paid so much a year out of the income. What possible difference can it make whether the income of any one year is insufficient to satisfy the annuity for that particular year, so long as the total income is sufficient to pay the entire annuity during the life of the annuitant?

In Delany v. Van Aulen, 84 N. Y. 16, the court refused to pass upon the question; and on a second appeal it again refused to decide the point. 16 N. Y. Week. Dig. 543.

In Russell v. Loring, 3 Allen, 126, the testator directed his executor to set apart and invest so much property as would produce an income of $2,000 a year, and pay the same to a tenant for life. A sum was in good faith invested sufficient to produce that income.

It never in fact produced less. The life tenant therefore never lost any portion of the annuity; and yet the court decided that when the sum invested produced an income exceeding $2,000 a year, the life tenant was entitled to the additional income. Where there is a bequest of an indefinite annuity for support, the court must fix the amount. Johnson v. Cornwall, 26 Hun, 499; Forman v. Whitney, 2 Keyes, 165: Broad v. Beavan, 2 Russ. 511, note; Thorp v. Owen, 2 Hare, 610.

In the case of an absolute annuity, all taxes, interest, expenses, commissions, etc.,necessarily are paid by the remainderman or come out of his interest. To deduct any thing from the amount of the annuity would of course destroy its absolute character. Bates v. Underhill, 3 Redf. 372. This principle is so elementary that the citation of a list of authorities in its support is unnecessary.

On the other hand, where no absolute annuity is bequeathed all charges must be deducted from the income. This point also is so clearly sound on principle that no authority need be cited to support it. All of the cases recognize it.

Brokers' commissions on the purchase of securities, in which the fund is invested, must be paid by the remainderman. Whittemore v. Beekman, 2 Dem. 275. To same effect, Dannat v. Jones, 2 id. 607. He must also pay the expenses attending the appointment of a trustee. Donovan v. Macdowal, 2 Dem. 213. But not where the conduct of the life causes the expense. Coventry v. Coventry, 1 Keen. 758. The remainderman must usually pay the expenses of permanent improvements. Of course the life tenant cannot bind the remainderman by making such improvements. In such case it would seem that the life tenant must bear the expense himself. But where improvements of a permanent nature are made by an executor or trustee, the rule is different. It is well stated in Matter of Pollock, 3 Redf. 100-118: "It is undoubtedly true that as to permanent improvements of property in which a person has a life estate, the expense of such improvements is presumed to be for the benefit of the estate and chargeable to the remainderman, and to overcome such presumption it is necessary to show that the life tenant made the improvements, or that they were made by his procurement or on his responsibility." See on same poiut Dannat v. Jones, 2 Dem. 607-609; Merritt v. Scott, 81 N. C. 385.

It becomes important sometimes for the remainderman and life tenant to determine whether a remainder limited after the use by the life tenant of a portion of the corpus of the estate is good. The decision of this question rests upon the intent of the testator. If he intended to confer upon the life tenant an unqualified, unrestricted absolute power of disposition the remainder is void. Campbell v. Beanmont, 91 N. Y. 464; Wager v. Wager, 96 id. 174; Patterson v. Ellis, 11 Wend. 259; Livingston v. Murray, 68 id. 491, and cases. On the other hand if the power of disposal vested in the life tenant is not absolute, but limited, or a power to use so much of the principal as may be necessary for support, the remainder is valid, and the remainder is valid, and the remainderman will take what is left. Wager v. Wager, 96 U. S. 173; Terry v. Wiggins, 47 N. Y. 512; Smith v. Bell, 6 Pet. 68; Smith v. Van Ostrand, 64 N. Y. 284-5; Upwell v. Haley, 1 P. Wm. 651; Trustee of Theological Seminary v. Kelley, 16 N.Y. 83-88; Hill v. Hill, 4 Barb. 419.

In Terry v. Wiggins, the testator gave to his wife "all other real and personal effects that I may die possessed of, for her own personal and independent use and maintenance with full power to sell or otherwise dispose of the same," with a devise of the residue to trustees. Held, that the remainder was good, the court saying: "The power of disposal is not absolute

But this is not the doctrine in all cases. The tendency of the courts is to grant an injunction in practically all cases where waste is being committed or threatened. Livingston v. Reynolds, 26 Wend. 115; S. C., 2 Hill, 159; Rodgers v. Rodgers, 11 Barb: 595; London v. Warfield, 5 J. J. Marsh. 596; Sarles v. Larles, Sandf. Ch. 603; White Water Canal v. Comegys, 2 Ind. 469; Wilkinson v. Wilkinson, 30 Alb. Law J. 39; see also Georges Creek Co. v. Detmold, 1 Md. Ch. Dec. 371. And where equity has once obtained jurisdiction, it will take an account of past damages sustained by reason of waste already committed, and give plaintiff judgment therefor to prevent a multiplicity of suits. Story Eq. Juris., §§ 317-318; Livingston v. Reynolds; Rodgers v. Rodgers; Sarles v. Sarles; Watson v. Hunter, 5 Johns. Ch. 170.

In Barnes v. Dowling, 4 L. T. R. (N. S.) 809, it was held that no suit in equity would lie to restrain the commission of permissive waste. The bill was filed to compel a tenant for life to keep the buildings in repair; but the court held it had no authority to grant the relief prayed for. See also Gibson v. Wells, 4 Bos. & Pull. 290; Herne v. Bembow, 4 Taunt. 764. But an action at law may be maintained to recover damages for permissive waste. Newbold v. Brown, 27 Alb. L. J. 159; 2 Larned. 252, note 7; Wade v. Malloy, 16 Hun, 226; 1 Washb. Real Prop. 124. Equity will not interfere where the title is not clear and undisputed. Phillsworth v. Hopton, 6 Ves. 51; Stoun v. Mann, 4 Johns. Ch. 21; Field v. Jackson, 2 Dick. 599. That equity will not not stay permissive waste is a doctrine of doubtful soundness. See the forcible and convincing arguments against it in 4 Harr. & Johns. 378-379 and 388, 389. See also page 393 of this case.

What constitutes waste should now be considered. The cases are numerous. But it is not difficult to educe from the apparent chaos in which they seem to involve this branch of the law a clear and reasonable principle. Waste is any damage done to the remainder. If the life tenant is guilty of any violation of duty which he owes to the remainderman, and damage to the remainderman results therefrom, the life tenant has committed waste. Wade v. Malloy, 16 Hun, 226; Livingston v. Reynolds, 122; Agate v. Lowenhein, 57 N. Y. 614; 1 Washb. Real Prop. 108; McGregor v. Brown, 10 N. Y. 117; Proffitt v. Henderson, 29 Mo. 327.

Washburne says: "Waste in short may be defined to be whatever does a lasting damage to the freehold or inheritance, and tends to permanent loss of the owner in fee or to destroy or lessen the value of the inheritance."

In Agate v. Lowenhein, Commissioner Dwight says: "The real inquiry in all cases is whether there is damage done which injures the reversion."

In Wade v. Malloy the court held that a life tenant who willfully neglects to pay the interest on a mortgage, whereby the mortgage is foreclosed and the property sold, is guilty of waste, and must make good all damage which the remainderman sustains. The court said: "It thus appears that any act or omission of the tenant which deprives the person in remainder or reversion of the inheritance is waste." By the statute of Gloucester (6 Edw. I, ch. 5) the tenant committing the waste forfeited the place wasted and treble damages. This statute has been enacted in nearly all of the States and in those where it has not been adopted, the original statute by virtue of the statute and Constitutions of such States is continued in force. But see on this point 4 Kent Com. 80-81. It is beyond the scope of this article to refer to the various modifications of the common-law principles relating to the subject of waste which have been made by statutory enactments in the different States.

It is a perfect defense to an action of waste that the damage done has been repaired. Jackson v. Andrew, 18 Johns. 431: Co. Lit. 53, a; 1 Washb. Real Prop. 118. Coke says: "If the tenant do, or suffer waste to be done in houses, yet if he repairs them before action brought there lieth no action of waste against him."

In Jackson v. Andrew, it appeared that the new timber had grown up in place of the old timber which the tenant had destroyed. The court held that the action would not lie, and cited the above language from Coke with approval. But the waste must be made good before cut. 1 Washb. Real Prop. 119. Where timber is unlawfully cut by the life tenant, the remainderman has, in addition to his action of waste, a right to bring trover for its conversion or replevy it. Bowles' case, 11 Rep. 82; Richardson v. York, 14 Me. 216; Bulkley v. Dolbeare, 7 Conn. 232; Mooers v. Wait, 3 Wend. 104; Seagram v. Knight, L. R., 2 Ch. App. 631; Lane v. Thompson, 43 N. H. 324; Phillips v. Allen,7 Allen, 116; Clark v. Holden, 6 Gray, 11. And this doctrine applies to the case of every unlawful severance of any thing from the freehold. 1 Washb. Real Prop. 119; Uvedall v. Uvedall, 2 Rolle Abr. 119, part 3.

Where the life tenant is allowing the taxes or interest to fall in arrear, the remainderman may file a bill in equity to compel the application of the rents and profits to the extinguishment of such interest and taxes, and have a receiver appointed for that purpose, who takes possession of the property and collects the rents until the rights of the remainderman are fully protected. Carter v. Youngs, 42 Super. Ct. 418; King v. King, 41 id. 516; Carnes v. Chaubert, 3 Edw. Ch. 312; Sidenberg v. Ely, 90 N. Y. 264.

The life tenant is bound to use no more money in paying taxes and other charges which rest upon his estate than he realizes from the property, provided he realizes what the use of the property is fairly and reasonably worth. If the property is unproductive he is under no obligation whatever to pay any annual charges upon it. Clark v. Middlesworth, 82 Ind. 251; Brooks v. Brooks, 12 S. C. 422; 1 Washb. Real Prop. 96, note 4; Kensington v. Bouverie, 31 Eng. L. & Eq. 345.

In the first case the remainderman brought action for waste because of the failure of the life tenant to pay taxes whereby the remainderman had been damaged. The court held that the life tenant was under no obligation to pay the annual taxes, unless the property was productive, and that the burden of showing it to be productive rested upon the remainderman, and that it was not incumbent on the life tenant to show in the first instance that he derived no benefit from the property. The court said, "that the tenant for life, as well as those in remainder, must be regarded as the object of the testator's bounty; that if the property was unproductive she was not bound to pay out of her other means the accruing taxes and charges upon the estate, in order to save the remainder for the appellants."

On a motion for rehearing the court said on the subject of the burden of proof: "We think that the burden of showing that the life estate was productive rested upon the appellants, and that the petition for a rehearing should be overruled." The appellants were the remaindermen.

It would seem on principle to be the correct rule that where the life tenant claims that the property is either wholly unproductive, or that it does not produce enough to pay the annual charges, the remainderman, either personally or by a receiver appointed for that purpose, should have the right to take possession of the property and control it for his protection. Of course his right to a receiver could not be based upon the failure of the life tenant to perform the duty which the law imposes upon him with reference to