The personal representative of a tenant for life is entitled to emblements,31 since the tenant's estate is one of uncertain duration.32 But the tenant himself cannot claim them if he forfeits his estate by not performing a condition,33 though he can if his interest is terminated without his fault.34 The lessee of a tenant for life is entitled to emblements;35 and so, also, would the lessee of one who held during her widowhood, but terminated her estate by marriage.36 If she was herself in possession, she could not claim emblements, because she terminated the estate by her own act.37
Harrison, 2 Madd. 268. This was changed by the statute of 11 Geo. II. c. 19, § 15. The statute has been re-enacted in some states (1 Stim. Am. St. Law, § 2027), and followed in others.
25 Hagan v. Varney, 147 111. 281, 35 N. E. 219; In re Rennie's Estate, 10 Misc. Rep. 038, 32 N. Y. Supp. 225; Thurston v. Dickinson, 2 Rich. Eq. (S. C.) 317; Merritt v. Scott, 81 N. C. 385; Corbett v. Laurens, 5 Rich. Eq. (S. C.) 301; Elam v. Parkhill, 60 Tex. 581; Wilson v. Parker (Miss.) 14 South. 264; Van Bibber v. Williamson, 37 Fed. 756. Cf. Austin v. Stevens, 24 Me. 520; Dates-man's Appeal, 127 Pa. St. 348, 17 Atl. 1086, 1100; Caldwell v. Jacob (Ky.) 27 S. W. 86.
26 Sohier v. Eldredge, 103 Mass. 345; Parsons v. Winslow, 16 Mass. 361. Cf. Brough v. Higgins, 2 Grat. (Va.) 408; In re Laytin (Surr.) 20 N. Y. Supp. 72.
27 In re Steele, 19 N. J. Eq. 120; Kearney v. Kearney, 17 N. J. Eq. 59; Wilson v. Edmonds, 24 N. H. 517; Brooks v. Brooks, 12 S. C. 422.
28 White v. Cutler, 17 Pick. (Mass.) 248; Webster v. Webster, 33 N. H. 18; Smith v. Jewett, 40 N. H. 530: Smith v. Poyas, 2 Desaus. Eq. (S. C.) 65. But see Padelford v. Padelford, 7 Pick. (Mass.) 152. Cf. Loomis v. Wilbur, 5 Mason, 13, Fed. Cas. No. 8,498.
29 2 Bl. Comm. 35, 122.
30 Elliot v. Smith, 2 N. H. 430.
31 See ante, p. 8.
32 Perry v. Terrel, 1 Dev. & B. Eq. (N. C.) 441; Hunt v. Watkins, 1 Humph.
Waste. Another important incident of an estate for life, and of all particular estates, is that the tenant must not commit waste;38 that is, to cause or suffer any permanent and material injury to the inheritance. In other words, the one who is next entitled to the premises has a right to have them come to him without their value being impaired by any destruction of the corporeal thing.39 It may be provided, at the creation of the estate, that the tenant shall not be liable for waste, or, that he shall hold "without impeachment for waste."40 But even then wanton injury, or "equitable waste," will be restrained by a court of chancery.41 Injury which occurs from positive acts of the tenant is "voluntary waste," and injury resulting from his neglect of duty is "permissive waste," - for example, permitting a building to fall down from want of repair, as distinguished from pulling it down, which would be permissive waste.42
(Tenn.) 498; Poindexter v. Blackburn, 1 Ired. Eq. (N. C.) 286; Spencer v. Lewis, 1 Houst. (Del.) 223. But ef. Reiff v. Reiff, 64 Pa. St. 134.
33 2 Bl. Comm. 123; Oland's Case, 5 Coke, 116a. Cf. Debow v. Colfax, 10 N. J. Law, 128; Bulwer v. Bulwer, 2 Barn. & Ald. 470.
34 Price v. Pickett, 21 Ala. 741; King v. Whittle, 73 Ga. 482.
35 King v. Foscue, 91 N. C. 116.
36 2 Bl. Comm. 124.
37 Hawkins v. Skeggs' Adm'r, 10 Humph. (Tenn.) 31; Oland's Case, 5 Coke, 116a.
38 The restriction applied only to a tenant in dower and curtesy until the statute of Marlebridge, 52 Hen. III. c. 23. But a tenant in tail after possibility of issue extinct is not liable for waste. Ante, p. 52.
39 Proffitt v. Henderson, 29 Mo. 327; Sackett v. Sackett, 8 Pick. (Mass.) 309; Dejarnatte v. Allen, 5 Grat. (Va.) 499; Huntley v. Russell, 13 Q. B. Div. 572, 588.
40 2 Bl. Comm. 283; Pyne v. Dor, 1 Term R. 55; Bowles' Case, 11 Coke, 79b. See, also, Gent v. Harrison, 1 Johns. Eng. Ch. 517; Turner v. Wright, 2 De Gex, F. & J. 234.
41 Vane v. Lord Barnard, 2 Vern. 738; Roet v. Somerville, 2 Eq. Cas. Abr. 759; Lushlngton v. Boldero, 15 Beav. 1. And see Marker v. Marker, 4 Eng. Law & Eq. 95.
The English rules as to waste are to a large extent inapplicable in this country, owing to the difference in circumstances, especially as to cutting down trees and the use of land;43 and what would be waste in a thickly-settled Eastern state might not be in a new and undeveloped region.44 In very many cases it is a question of fact for the jury whether the acts complained of are wrongful, as being injurious to the estate.45
If one holding farming lands as tenant for life cultivates in a way not sanctioned by the rules of good husbandry, he is guilty of waste.46 For instance, he should not exhaust the land by constant tillage, without change of crop or the use of fertilizers,47 nor should he permit brush to choke up meadow land.48 But it would not, as in England,49 be waste to change the character of the land, if no substantial injury results, as by plowing up pasture land.50
42 2 Bl. Comm. 281. As to permissive waste by a tenant at will, see Countess of Shrewsbury's Case, 5 Coke, 13. And see Heme v. Bembow, 4 Taunt 764. Cf. Moore v. Townshend, 33 N. J. Law. 284.
43 Keeler v. Eastman, 11 Vt. 293; Pynchon v. Stearns, 11 Metc. (Mass.) 304; Jackson v. Brownson, 7 Johns. (N. Y.) 227; Lynn's Appeal, 31 Pa. St. 44; Drown v. Smith, 52 Me. 141; Crockett v. Crockett, 2 Ohio St. 180; Kidd v. Dennison, 6 Barb. (N. Y.) 9; Findlay v. Smith, 6 Munf. (Va.) 134. And see Carpenter, J., in Morehouse v. Cotheal, 22 N. J. Law, 521.
44 Morehouse v. Cotheal, 22 N. J. Law, 521; Webster v. Webster, 33 N. H. 18; Davis v. Gilliam, 5 Ired. Eq. (N. C.) 308.
45 Webster v. Webster, 33 N. H. 18; King v. Miller, 99 N. C. 583, 6 S. E. 660.
46 Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601 Cf. Jackson v. Andrew, 18 Johns. (N. Y.) 431.
47 Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601.