So that equitable waste is not committed, the bountiful intention of the testator in favor of the devisees over will be completely fulfilled; for, on the happening of the contingencies limited, the property will come to them in the same condition in which it would have been if the testator, being a prudent man, had himself survived and had managed and enjoyed it till the time when the events happen upon which they are entitled to enter.
The onus seems to lie upon the plaintiff to show, by authority, that tenant in fee simple, subject to an executory devise over, is not entitled to cut timber. It is admitted that no express decision to this effect is to be found in the books, and that no instance has ever yet occurred of an adult devisee in fee with an executory devise over being restrained.
The plaintiff's counsel relied on dicta to be found in the reports of three cases, Robinson v. Litton, 3 Atk. 209, Cru. Dig., tit. xvi., c. 7, § 26; Stansfield v. Habergham, 10 Ves. 273, and Wright v. Atkyns, 17 Ves. 255; 19 Ves. 299; 1 Ves. & Bea. 313; Turn. & Russ. 143. According to Vesey, Jr., a very careful and accurate reporter, Lord Eldon did say, in Stansfield v. Habergham, 10 Ves. 273, " I should by dissolving this injunction contradict what has been understood to be the doctrine of this court; that, where there is an executory devise over, even of a legal estate, this court will not permit the timber to be cut clown." But this doctrine is not to be found in any text-writer, and it has never been acted upon. In Wright v. Atkyns, 17 Ves. 255; 19 Ves. 299; 1 Ves. & Bea. 313; Turn. & Russ. 143, the power of the widow to cut down timber was only questioned upon the supposition that she took no more in equity than an estate for life. In Robinson v. Litton, 3 Atk. 209; Cru. Dig., tit. xvi., c. 7, § 26, Lord Hardwicke was influenced by the consideration that the tenant in fee simple with an executory devise over was the infant heir of the testator, and was about to cut down timber improvi-dently. The limitation was as stated by Cruise, 6 Cruise, 428, 429, and the infant, though seized of the legal estate in fee, was entitled to the rents and profits only until he attained twenty-one, i. e., for a chattel interest. After that he was to become trustee for his sisters; and, even according to the report in Atkyns, the circumstances of the infant being a trustee for the benefit of his sisters was mainly relied upon in granting the injunction. 3 Atk. 209.
Therefore, as to legal waste, I think there is no authority to outweigh the considerations which, upon principle, lead strongly to the conclusion that, so far, the injunction ought to be dissolved.
Had there been a charge in the bill, supported by evidence, that the cutting down of the ornamental and immature timber was malicious, I should have entertained no doubt that this court ought to interfere by injunction. Tenant in fee simple, subject to an executory devise over, of a mansion surrounded by timber for shelter and ornament, cannot say that the property is his own; so that out of spite to the devisee over, he may blow up the mansion with gunpowder and make a bonfire of all the timber. The famous Raby Castle Case, Vane v. Lord Barnard, 2 Vern. 738, shows that such things may not be done by tenant for life sans waste, and tenant in fee with an executory devise over, actuated by malice, would not have greater liberty to destroy.
The waste which intervenes between what is denominated legal waste and what is denominated malicious waste, viz., equitable waste, may admit of a different consideration. But equitable waste is that which a prudent man would not do in the management of his own property. This court may interfere where a man unconscien-tiously exercises a legal right to the prejudice of another; and an act may in some sense be regarded as unconscientious if it be contrary to the dictates of prudence and reason, although the actor, from his peculiar frame of mind, does the act without any malicious motive. The prevention of acts amounting to equitable waste may well be considered as in furtherance of the intention of the testator, who, no doubt, wished that the property should come to the devisee over in the condition in which he, the testator, left it at his death; the first taker having had the reasonable enjoyment of it, and having managed it as a man of ordinary prudence would manage such property were it absolutely his own. In the present case, the devise being by the testator of "all his said mansion-house and estate at Brattleby and North Kelsey, with the appurtenances," there would be great difficulty in distinguishing for this purpose between the mansion-house and the ornamental timber. Indeed,
Mr. Daniel contended that, in the absence of malice, this court could not interfere to protect the mansion-house. I put to him hypotheti-cally, in the course of his able argument, the supposition that a mediaeval castle is devised to A. in fee, subject to an executory devise over to B. in fee, and that A. from a sincere dislike of tur rets and moats, and a genuine love of roses and lilies and gravel walks, and believing that B. and all other sensible men must have the same taste, declares that he means to throw down all the buildings and to convert the site of the castle into a flower garden, and begins with setting men to strip the lead from the roof of the donjon tower. A bill being filed by B. for an injunction, would this court interfere? Mr. Daniel answered: "A., acting bona fide, No." Nevertheless I cannot help thinking that in spite of A.'s bona fides, what A. contemplated would be in the nature of a destruction of the subject devised, and would certainly be in contravention of the intention of the devisor, so that B. would be entitled to an injunction. It may be said that this is an extreme case, but it is by an extreme case that the soundness of a principle is to be tested. The presence or absence of a bad motive will not alone enable us to draw any satisfactory line between what is to be considered malicious and what is to be considered equitable waste, and no line to regulate the interposition of a court of equity by injunction can well be drawn other than the recognized and well-established line between legal and equitable waste. The application of this to the facts of particular cases may sometimes be attended with difficulty; but the principle on which the line is to be traced is known and invariable. I am willing, with Vice-Chancellor Page Wood, to accept the clew by which Lord Justice Turner, in Micklethwait v. Micklethwait, 1 De G. & J. 504, 524, proposed to solve the difficulty: "If a devisor or settlor occupies a mansion-house, with trees planted or left standing for ornament around or about it, or keeps such a mansion-house in a state for occupation, and devises or settles it so as to go in a course of succession, he may reasonably be presumed to anticipate that those who are to succeed him will occupy the mansion-house; and it cannot be presumed that he meant it to be denuded of that ornament which he has himself enjoyed." However, I cannot go so far as the vice-chancellor, who is reported to have added: ' This reasoning obviously applies to every case of an estate limited so as to go in a course of succession." 'The tenant for life, sans waste, is as much owner of the timber as the tenant in fee. Their legal rights in this respect are identical." Turner v. Wright, John. 740-751. Where an estate tail is created with successive estates tail in remainder, the estate entailed is "limited to go in a course of succession," but a tenant in tail is dispunishable of equitable as well as legal waste, because he may at any time bar the entail, and give himself a pure and absolute fee simple. Again, a tenant for life sans waste can hardly be said to be as much owner of the timber as the tenant in fee; for although the tenant for life (avoiding equitable waste), may fell and dispose of the timber in his lifetime, were he to sell growing trees they would go to the remainderman or reversioner, if not severed from the soil in his lifetime; whereas, the tenant in fee might by sale or conveyance give the purchaser an absolute and permanent interest in the trees against all the world. Nevertheless I think that the rights and liabilities of tenant for life sans waste may be taken as a measure of the rights and liabilities of devisee in fee, subject to an executory devise over.