An estate by dower or curtesy is a life estate arising by operation of law. Mere ownership by one spouse creates the estate in the other spouse, upon survival of such other spouse, and the owner of the fee cannot defeat dower of curtesy. A conventional life estate is one created by deed or will, more frequently by will, as where A gives lands to B for life and after B's death to C. We have already seen that a conveyance or gift to B and his heirs does not give B a life estate, but gives the entire estate to B. Also we have seen that under modern law (therein differing from the ancient law) a gift or conveyance to B without use of word heirs gives B the entire estate.
The life estate may be one's own life or for the life of another (per auter vie).
A life estate is one that is measured strictly by a person's life. A lease for 99 years, is not a life estate, as it is not coterminous with any life.
A life tenant has a right to the possession and enjoyment of the estate, but must not permanently diminish it in value, and must give it the care of a prudent owner.
A tenant for life is liable for waste, unless he holds under a gift or conveyance permitting him to commit waste, and even then, he must not commit malicious or unreasonable waste.
Waste is a word used in real estate law to indicate diminution of value of the estate, or substantial change in its character. If an estate is granted to A for life with remainder to B in fee, it is a very vital question to B how far A may go in his use of the estate or his neglect of it.
Waste is said to be voluntary or permissive. Voluntary waste is waste that is committed by affirmative act by tearing down buildings or cutting down trees. Permissive waste is waste permitted by neglect. The tenant for life must be guilty of neither.
What acts constitute voluntary waste? The tenant for life is entitled to the fair use of the estate. He may use what wood he needs out of the timber for fire wood and for necessary repairs, but he cannot clear the timber merely for purposes of gain. However, in the United States, he may cut timber where his purpose is that of good husbandry and his act is in fact good husbandry according to the customs of the community and the actual needs of his estate. This is a question of fact for the jury.62
The old common law rule was that to change the character of buildings was waste, even though beneficial to the estate, as the remainderman had the right to have the estate come to him unchanged, but this strict rule has been modified in the United States, and more liberal views prevail.
62. Mooers v. Waite, 3 Wend. (N. Y.) 104.
Tenants for life are sometimes "unimpeachable for waste" under the terms of the will or deed. In such a case, however, they must not wantonly or maliciously or unreasonably commit waste (as for instance cutting down shade trees), and a court of equity will prevent such waste. Such waste is therefore known as "equitable waste."
The commission of waste may be prevented by injunction and damages for past waste may be obtained.
Under the common law a life tenant was entitled to rents falling due during his tenancy, but rent falling due thereafter belonged to the remainderman, and could not be apportioned between the two estates.
By the rule of the common law rent was deemed not apportionable. If A were life tenant, and B remainderman, and A died just before rent was due from C, the rent would pass to B, and not to A's executor, and there could be no apportionment between A's estate and B.63 This rule has been changed in some states which permit apportionment.
As between life tenant and remainderman, the general rule is increase in substance or value of the estate, belongs to the tenant for life, if it be by way of income, and to the remainderman if it be by way of increase in the corpus.
The life tenant is entitled to income; he is not entitled to the corpus, as he has but a life estate therein. There63. Perry v. Aldrich, 13 N. H. 343.
fore, the general rule is that whether he is entitled to any increase depends upon whether it is income or accretion to corpus. Thus he may have the interest on bonds, and such interest will be apportioned if he die before it is due,64 but he is not entitled to increase in the value of the bonds.65
As to the right of the tenant to dividends on stock there is some divergence of view. Dividends that are ordinary cash dividends are income and go to a life tenant,66 but the authorities differ in the case of extraordinary or stock dividends, some holding that stock dividends go to the remainderman and not to the tenant for life (or his executor)67 and some holding that there should be apportionment of such dividends.68
A life tenant must pay the general taxes and special assessments for temporary improvements, but assessments for permanent improvements are to be distributed equitably between the life estate and the remainder.
General taxes are clearly an expense of upkeep which the life tenant must bear.69 So, for assessments for temporary improvements.70 But special assessments for permanent improvements, as for paving, are for the benefit of the remainderman and also the life tenant and ought to be
64. Dexter v. Phillips, 121 Mass. 178.
65. Note, L. R. A. 1915 C. 853.
66. Note, 50 L. R. A. N. S. 514.
67. Gibbons v. Mahon, 136 U. S. 549.
68. Note, 12 L. R. A. N. S. 801; 50 L. R. A. N. S. 515.
69. Huston v. Tribbetts, 171 111. 547, 49 N. E. 711, 41 L. R. A. 32s.
apportioned.71 The rules for the division are not in entire accord, one being apportionment on the basis of the respective values, and one on the basis of interest during the life of the life tenant, and principal by the remainderman.72
A life tenant must pay the interest on mortgages, but the remainderman must pay the principal.
A tenant for life must obviously pay the interest on encumbrances, for he has the income. But payment of the principal is obviously a deduction from the corpus. Therefore if to preserve the estate the tenant pays a mortgage, he is entitled to be re-imbursed.73
72. 10 L. R. A. N. S. 345, note. 73. 29 L. R. A. N. S. 154. note.