(0) What Relief may be given in Equity, in Cases of Waste. tled to the use of A for life, without impeachment of waste, remainder over. The rents and profits of the lands to be sold were directed to be, till sale, to the use of the same persons who would be entitled to the lands that were to be purchased. It was decreed that A, the tenant for life, could not cut down timber on the lands that were directed to be sold. Countess Dowager of Plymouth v. Lady Archer, 1 Bro. Ch. Rep. 159. Although, as appears from the above cases, an injunction will issue to prevent a tenant for life without impeachment of waste from committing improper waste, yet if the answer deny any intention of doing so, be not excepted to, and be full, the order for the injunction will be discharged. Countess of Strathmore v. Bowes, 2 Bro. Ch. Rep. 88.] The act of sending a surveyor to mark out trees is a sufficient threatening of waste to be a ground for an injunction. Jackson v. Cator, 5 Ves. 688.|| (0) What Relief may be given in Equity, in Cases of Waste. A BILL was brought to restrain tenant in dower from getting peat: Lord Chancellor dismissed it with costs, as it appeared to be vexatious; the peat she sold not being above the value of ten pence. But herein it was said, that digging peat is in many places the ordinary bote; and perhaps the only fruit that can arise from the land. They do not carry away the soil, for they dig off the turf, then take away the peat, and lay the turf down again and tenant for life can no more dig peat to sell than cut down timber to sell; and the Chancellor said, if he was to give any relief, he must direct an issue; but that the cause was of too frivolous a nature to maintain the expense. MS. Rep. Wilson v. Bragg, 3 March, 1742. A bill being brought to redeem a mortgage, on the hearing, an account was decreed, and 240l. reported due; to which report the plaintiff had taken exceptions. The cause thus standing in court, the Lord Keeper, on a motion, and reading affidavits that the defendant had burnt some of the wainscot and committed waste, ordered the defendant to deliver up possession to the plaintiff, who was a pauper, giving security to abide that event of the account. 2 Vern. 392, Hanson v. Derby. A tenant for life, remainder to trustees to preserve, &c., remainder to C the plaintiff in tail, remainder over, with power to A with consent of trustees to fell timber, and the money arising to be vested in lands, &c., to same uses, &c. A felled timber to the value of 3000l. with consent of trustees, who never intermeddled, and A had suffered some of the houses to go out of repair. C by bill prayed an account and injunction. The Master of the Rolls said, that the timber might be considered under two denominations, to wit, such as was thriving and not fit to be felled; and such as was unthriving, and what a prudent man and a good husband would fell, &c., and ordered the Master to take an account, &c. And the value of the former, which was waste, and therefore belongs to the plaintiff, who is next in remainder of the inheritance, is to go to the plaintiff, and the value of the other is to be laid according to the settlement, &c. But as to repairs, the court never interposes in case of permissive waste, either to prohibit or give satisfaction, as it does in case of wilful waste; and where the court have jurisdiction of the principal, viz., the prohibiting, it does in (0) What Relief may be given in Equity, in Cases of Waste. consequence give relief for waste done, either by way of account, as for timber felled, or by obliging the party to rebuild, &c., as in case of houses, &c., and mentioned Lord Bernard's case as to Raby Castle. 2 Vern. But as to repairs, it was objected, that the plaintiff here had no remedy at law by reason of the mesne estate for life to the trustees, between plaintiff's remainder in tail, and defendant's estate for life, and that therefore equity ought to interpose, &c., and that this was a point of consequence. non allocatur. Sed MS. Rep. Mich. Vac. 1733, Lord Castlemain v. Lord Craven. A lord of a manor may bring a bill for an account of ore dug, or timber cut, by the defendant's testator. Thus, Á customary tenant of lands, in which was a copper mine, that never had been opened, opened the same, and dug out and sold great quantities of ore, and died; and his heir continued digging and disposing of great quantities out of the said mine. The lord of the manor brought a bill in equity against the executor and heir, praying an account of the said ore; and alleged that these customary tenants were as copyhold tenants, and that the freehold was in the plaintiff as lord of the manor and owner of the soil; and that the manner of passing the premises was by surrender into the hands of the lord, to the use of the surrenderee. It was insisted for the defendants, that it did not appear that the admittance, in this case, was to hold ad voluntatem domini secundum consuetudinem, &c., without which words, it was insisted, there could be no copyhold, as had been adjudged in L. Ch. J. Holt's time. And L. C. Cowper said it would be a reproach to equity to say, that where a man has taken another's property, as ore, or timber, and disposed of it in his lifetime, and dies, there should be no remedy. 1 P. Wms. 406, Bp. of Winchester v. Knight. But his lordship said, in this case, that as to the trespass of breaking up meadow or ancient pasture-ground, it dies with the person. Ibid. See Richards v. Noble, 3 Meriv. 673.|| And in a late case, Sir Thomas Plumer, V. C., overruled a demurrer to a bill against the representative of a tenant for life, for an account of equitable waste committed by him, and for relief, on the principle that, where equitable waste has been committed, the court has jurisdiction to make the representative of the party committing it accountable. Lansdown v. Lansdown, 1 Madd. 141.|| Converting a brewhouse into tenements of a greater value, is waste, notwithstanding the melioration, by reason of the alteration of the nature of the thing and of the evidence; and so resolved on a trial before Hale, C. J., and the jury gave the verdict accordingly, and 100 marks single damages, which being trebled amounted to 2007., which the Chancery compelled Cole to take. Lev. 311, Cole v. Green. Lessee for 500 years of land, about 2001. a year, built several houses, and thereby improved the rents from 2001. a year to 1400l. a year, and quietly enjoyed the same for twenty years and more, and then an action of waste was brought for pulling down a brick wall, and cutting down fruittrees, and digging gravel for laying the foundations of the houses built on the said ground. He brought a bill setting forth, that such building could not be accounted any waste, but rather a melioration and improvement of the land. The defendant pleaded the statute, by which provision is made (0) What Relief may be given in Equity, in Cases of Waste. for bringing actions of waste. But the court overruled the plea, and ordered the defendant to answer and to speed the cause. Fin. Rep. 135, Wild v. Sir Ed. Stradling. An under tenant of a jointress commits waste sparsim, so as at law the estate was forfeited, but insisted that he had improved the estate from 401. to 60l. per annum, and offered to take a lease of it at that rent for 50 years, and to answer the value of the timber on a quantum damnificatus. Quære. 2 Vern. R. 263, pl. 247, Ligo v. Smith and Leigh. One seised in fee of lands in which there were mines, all of them unopened, by a deed conveyed those lands, and all mines, waters, trees, &c., to trustees and their heirs, to the use of the grantor for life, (who soon after died,) remainder to the use of A for life, remainder to his first, &c., son in tail-male successively, remainder to B for life, remainder to his first, &c., son in tail-male successively, remainder to his two sisters C and D and the heirs of their bodies, remainder to the grantor in fee. A and B had no sons, and C, one of the sisters, died without issue, by which the heir of the grantor as to one moiety of the premises had the first estate of inheritance: A having cut down timber and sold it, and threatened to open the mines, the heir of the grantor, being seised of one moiety ut supra, by the death of one of the sisters without issue, brought his bill for an account of the moiety of the timber, and to stay A's opening of any mine: and it was adjudged the right to this timber belongs to those who, at the time of its being severed from the freehold, were seised of the first estate of inheritance, and the property becomes vested in them. 2 P. Wms. 240, Whitfield v. Bewit. [It appears by Reg. Lib. B. 1723, fol. 576, that there were in this case trustees to preserve the contingent remainders, and the bill expressly stated applications to have been made to the heir of the surviving trustee, to interpose and put a stop to the commission of the waste, but that he refused to act.] A bill was brought against the executors of a jointress to have a satisfaction out of assets for permissive waste upon the jointure of the testatrix, &c. But by Cowper, C., the bill must be dismissed; for here is no covenant that the jointress shall keep the jointure in good repair; and in the common case, without some particular circumstances, there is no remedy in law or equity for permissive waste after the death of the particular tenant. Vin. Abr. tit. Waste, p. 523, cites MSS. Rep. 1 G. 1, in Canc. Turner v. Buck. See 2 Meriv. 408. Where the reversioner of leaseholds, with the privity of tenant for life, renewed the lease in his own name, and covenanted to repair the premises, Sir John Leach, V. C., held, that he was to be considered as having entered into the covenant on behalf of the tenant for life, and that the latter's estate was liable for dilapidations occasioned by his neglecting to repair. March v. Wells, 2 Sim. & Stu. 87.|| It has been said in equity, that a remainder-man for life shall, in waste, recover damages in proportion to the wrong done to the inheritance, and not in proportion only to his own estate for life. 1 Vern. 158, Brown v. Brown. A being tenant for ninety-nine years, if he should so long live, remainder to trustees to preserve contingent remainders, remainder to his first and other sons in tail, remainder to B in tail; A and B before issue born of A fell timber. The eldest son of A afterward brings his bill for an account (0) What Relief may be given in Equity, in Cases of Waste. and satisfaction of the timber against B. Per Lord Ch.-The plaintiff has no remedy at law, either in his own name, or in the name of his trustees. A, if he had not consented to it, should have brought trespass; for tenant for years is considered as a fiduciary for the remainder-man or his lessor. If Å had had an estate for life, and no limitation to trustees, the plaintiff could have had no remedy; because tenant for life might have barred, or surrendered the whole estate to the remainder-man; but here the freehold was in the trustees; and the possession of the lessee for years is in law the possession of the owner of the freehold. The trustees, however, could not ĥere have maintained waste, because the common law gave no action of waste, but to the owner of the inheritance; and the statute of Gloucester gives the writ to the same person; but the trustee is in no other condition than a remainder-man for life. Trustees may bring a bill in equity to stay waste, before the contingent remainder comes in esse. If the trustees had brought such a bill, the court, as to trees actually cut, would have obliged them to have made satisfaction in money, to have been secured to attend the contingent uses. Where there is tenant for life or years subject to waste, and timber is blown down, the owner of the first remainder in tail vested shall have it; for the common law considers an estate in contingence as no estate: and when the tree is severed, the property vests in somebody. If there be tenant for life, remainder for life, remainder in fee, the remainder-man can have no action for waste, because the plaintiff must recover the place wasted, which would be injustice to the remainder over; but such a remainder-man of the inheritance after the intervening estate may have trover for the trees, and if remainder-man for life dies, in the life. of remainder-man in fee, he may bring waste. Though an injunction is a proper remedy, yet it has never been determined that a bill for an account cannot be maintained afterward: and though a recovery was suffered after waste done, it was to the use of plaintiff and his heirs, which is no new use, and ought not to bar waste in equity. It is true the action of waste dies with the person; but though waste will not lie at law, as the person committing it is dead, yet he may have relief in this court. It is held, in all cases of fraud, the remedy never dies with the person, but relief may be had against the executor out of assets; and this court will follow the assets of the party liable to the demand; and collusion in this court is the same as fraud. Decreed a satisfaction to be made to the plaintiff, for the value of the timber, as he is now tenant in fee of the estate; but would not give any interest, as that would be carrying it too far. MSS. Rep. Garth v. Cotton, 26 G. 2; [1 Ves. 524, 546, S. C. ; 3 Atk. 751, S. C.] [An estate was settled upon A, for her jointure without impeachment of waste, except in pulling down houses and felling timber, remainder to her son B for life, without impeachment of waste generally, remainder to trustees to preserve contingent remainders, remainder to his issue in tail, remainder to his sister C in tail. B in the lifetime of A, and with her privity, fells timbers upon the estate, and afterwards dies in her lifetime; wnereupon C brought an action of waste against A, to recover treble damages, and the place wasted, and had a verdict. But it being proved that the timber was cut down with the knowledge of C, and that she encouraged the doing so, a perpetual injunction was granted to restrain her from proceeding any further at law. Aston v. Aston, 1 Ves. 396.] Of Wills and Testaments. If a tenant for life has rendered accounts to the remainder-man of inber cut by him during a period more than six years before a bill is filed against him for an account of such timber, and of the value of it, the statute of limitations cannot be pleaded to the bill; for though, if the remainderman had brought an action of trover, the defendant might, notwithstanding the accounts, have pleaded the statute, he could not have done so if an action of assumpsit had been brought. Hony v. Hony, 1 Sim. & Stu. 568; and see Barry v. Barry, 1 Jac. & W. 651. In the Exchequer it is a rule, that where any application shall be made for an injunction to stay waste, or in the nature of an injunction to stay waste, before the defendant is in court, supported by affidavit, such affidavit shall be filed, and the office copy thereof produced, with the necessary certificate of the bill being filed. R. H. 1 & 2 Geo. 4, Exch. 9 Price, 88.|| A bill to stay waste should show a good, and not a doubtful title to the place wasted, or in which waste is apprehended; equity will not interfere for that purpose, when by possibility the plaintiff's claim, now confessedly uncertain, may turn out, upon evidence hereafter to be discovered, to cover a part of the land in which it is said the waste is contemplated. Hough v. Martin, 2 Dev. & Bat. Eq. 379.9 OF WILLS AND TESTAMENTS. SEVERAL branches of these heads having been already treated of under the articles Executors and Administrators, and Legacies and Devises, little more remains than to consider what formal circumstances are necessary to the perfection of a will and testament, and by what means, and for what causes they may be avoided. For the better understanding of these particulars, we will arrange the matter relative to the residue of this subject under the following divisions, and inqui (A) What is a Will and Testament, and wherein they differ. (B) Who are capable of making a Will and Testament. (C) What are the Requisites to constitute a good will, (D) of Wills in Writing :-And here, I. What shall be a good Will in Writing to pass Lands and Tenements, &c., Wherein, 1. In what Language and Hand a Will may be written. 2. Of the Circumstances of Signing, Attestation, Publication, &c. 3. Of the Republication:-as what will amount to a Republication, and where a Republication will make a Devise good. II. What shall be a good Will in Writing of Goods and Chattels. III. What shall be a sufficient Proof of a Will. (E) Of Nuncupative Wills. (F) Of the Nature and Effect of a Will and Testament. |