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Welby v. Rockcliffe, 1 R. & M. 571, was decided on the ground that the testator had imposed the condition of paying his debts upon the devisee; and in Clutterbuck v. Clutterbuck, 1 M. & K. 15, there was a gift of the residue of the real and personal estate not therein-before otherwise disposed of, showing that the only land given was after payment of the sum directed to be raised to pay debts.

The cases where legacies given out of a particular fund Distinction have been held payable out of that fund are also dis- cases of extinguishable. The question in those cases has generally and specific been, not whether the personalty was only secondarily gifts of

interests in liable, but whether it was liable at all; in other words, land. whether the legacy was demonstrative or specific. See, for instance, Dicken v. Edwards, 4 Ha. 273; Bessant v. Noble, 26 L. J. Ch. 236 ; Fream v. Dowling, 20 B. 624; 4 Eq. 145, . 10. Where, however, a sum is directed to be raised out Gift of

lands after of land for payment of debts and the land is not given payment of till after such payment or only the residue of the land is debts. given, there is a strong argument that the land was to be the primary fund. Hancox v. Albey, 11 Ves. 179; Hale v. Cox, 3 B. C. C. 322; see Clutterbuck v. Clutterbuck, 1 M. & K. 15; Noel v. Noel, 12 Pr. 214; Lord St. Leonards's Law of Property, 363, 365; Ion v. Ashton, 28 B. 379.

TENANT FOR LIFE AND REMAINDERMAN.

I. Capital and income.

1. As between tenant for life and remainderman, dividends declared before the death of the tenant for life, though not paid till afterwards, belong to his representatives. Wright v. Tuckett, 1 J. & H. 266. Dividends on shares in a company declared after the Dividends

on shares.

death of the tenant for life, though earned before his death, go to the remainderman. Mackinley v. Bates, 31

B. 280. Partner

On the other hand partnership profits declared for a ship profits. past period are the income of that period. Ibbotson v.

Elam, L. R. 1 Eq. 188; Browne v. Collins, 12 Eq. 586. Debts. Debts are the profits of the period when they are got

in. Maclaren v. Stainton, 3 D. F. & J. 202; Edmondson v. Crosthwaite, 34 B. 30.

A fund created for the protection of property given for

life is capital. Varlo v. Faden, 1 D. F. & J. 211. Power of

2. When there is a power vested in a duly constituted declaring whether authority of declaring whether profits shall be added to profits are to be

capital or distributed, the tenant for life is bound by the capital or authority. Straker v. Wilson, 6 Ch. 503; In re Ezekiel income.

Barton's Trust, 5 Eq. 238; Baring v. Ashburton, 16 W.
R. 452; see In re Cox's Trusts, 9 Ch. D. 159.

3. With regard to bonuses, it seems clear that bonuses out of capital. declared out of capital are capital. Paris v. Paris, 10

Ves. 183; Watts v. Steere, 13 Ves. 363; Brander v.

Brander, 14 Ves. 80. Bonuses On the other hand, bonuses declared out of profits, out of profits.

whether accumulated profits or not, are income. Barclay v. Wainwright, 14 Ves. C6; Price v. Anderson, 15 Sim. 473 ; Preston v. Melville, 16 Sim. 163; Plumbe v. Neild, 8 W. R. 337; 29 L. J. Ch. 618; Dale v. Hayes, 19 W. R. 299; In re Hopkins' Trust, 18 Eq. 696; see Hollis v. Allan, 14 W. R. 980.

But, perhaps, the case would be different if it could be shown that the payment being out of accumulated profits, such profits were entirely earned before the testator's

death. See Dale v. Hayes, supra. Waste, 4. A tenant for life cannot commit waste unless ex

pressly made unimpeachable for waste. Without A tenant for life without impeachment of waste,

Bonuses

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fee with

devise
over.

voluntary waste excepted, is in effect only excused for impeach

ment of permissive waste. Garth v. Cotton, 1 Ves. 524, 546; waste. 1 Dick. 183.

But the exception of voluntary waste may be qualified so as in effect to entitle the tenant for life to cut timber. Vincent v. Spicer, 22 B. 380; see Wickham v. Wickham, 19 Ves. 419.

A tenant in fee subject to an executory devise over Tenant in may commit legal but not equitable waste. Turner v. executory Wright, Jo. 742; 2 D. F. & J. 234.

And he may be restrained from cutting timber by express words. Blake v. Peters, 1 D. J. & S. 345. a. Tenant for life impeachable for waste may cut timber Timber for

repairs. for repairs actually about to be done, but he may not sell the timber in order to spend the money in repairs. Gower v. Eyre, G. Coop. 156; Simmons v. Norton, 7 Bing. 610.

He may, however, sell the timber cut in order to buy timber in a more convenient situation. Sowerby v. Fryer, 8 Eq. 417.

b. In the case of a timber estate the tenant for life Right of is entitled to the proceeds of the periodical cuttings. life to the Bateman v. Hotchkin, 31 B. 486; Bagot v. Bagot, 32 B. produce of 509, 517. C. And even where the estate is not a timber estate Timber

cuttings. the tenant for life is entitled to the rightful cuttings of all trees which are not timber or ornamental or useful to the estate. Pidgely v. Rawling, 2 Coll. 275; Earl Cowley v. Wellesley, 35 B. 638; S. C., L. R. 1 Eq. 656; see 18 Eq. 807; Honywood v. Honywood, 18 Eq. 306.

d. When timber trees are cut down by order of the Timber Court to improve other trees or because they are decay- Court.

cut by the ing, the tenant for life is entitled to the income of the proceeds. Tooker v. Annesley, 5 Sim. 235; Tollemache v. Tollemache, 1 Ha. 456 ; Ferrand v. Wilson, 4 Ha. 381;

tenant for

man.

Earl Cowley v. Wellesley, L. R. 1 Eq. 657; Honywood v.

Honywood, 18 Eq. 306. Timber

The capital will belong to the first owner of an estate blown down, of inheritance or to the first tenant for life unimpeachable

for waste who comes into possession. Waldo v. Waldo, 12 Sim. 107; Phillips r. Barlow, 14 Sim. 263; Jodrell v. Jodrell, 7 Eq. 461; Lowndes v. Norton, 6 Ch. D. 139.

Tenant for life unimpeachable cutting down ornamental timber which the Court would have directed to be cut if application had been made to it is entitled to the proceeds. Baker v. Sebright, 13 Ch. D. 179.

II. Residue given to persons in succession. What is

As between tenant for life and remainderman, residue residue as between is what remains after taking such portion of the capital tenant for life and

as, together with the income of such portion for one year, remainder- whatever that income may be, is required to pay the

testator's debts and legacies. Allhusen v. Whittell, 4 Eq. 294; Lambert v. Lambert, 16 Eq. 320; Marshall v.

Crowther, 2 Ch. D. 199. Property 1. The tenant for life is entitled to the income of so properly invested. much of the property as is invested on authorized securi

ties from the testator's death. Brown v. Gellatly, L. R. 2

Ch. 751. Unauthor

2. With regard to unauthorized securities, the tenant ized secu

for life is entitled from the testator's death to the income which would be produced by the money upon unauthorized security, if invested on authorized security at the end of a year from the testator's death. Dimes v. Scott, 4 Russ. 195; Taylor v. Clark, 1 Ha. 161; Brown v. Gellatly, L. R. 2 Ch. 751.

No allowance can be made to the tenant for life for the fact that securities are sold at a higher or lower rate between two dividends. Scholefield v. Reilfern, 2 Dr. &

Sm. 173; Freman v. Whitbread, 1 Eq. 266. Property 3. With regard to property which cannot be converted

rities.

cannot be

a

within the year or which is retained for the convenience which of the estate, the tenant for life is entitled from the converted. testator's death to interest at 4 per cent. upon the then value of such property. Meyer v. Simonsen, 5 De G. & S. 723; Brown v. Gellatly, L. R. 2 Ch. 751; Furley v. Hyder, 42 L. J. Ch. 626; see Arnold v. Enis, 2 Ir. Ch. 601.

4. In Gibson v. Bott, 7 Ves. 89, the tenant for life was allowed interest from the death on the value at the death of leaseholds which could not be sold on account of a flaw in the title. See note, 1 Y. & C. C. 320. 5. Where personalty is directed to be laid out in land Personalty

to be laid the tenant for life is entitled to the income from the

out in testator's death. Macpherson v. Macpherson, 1 Macq. 243.

land. Where accumulation is directed till investment, one year is allowed. Sitwell v. Barnard, 6 Ves. 520.

6. Reversionary property must be sold under trusts Reversionfor conversion and if the testator gives his trustees a perty must

ary prodiscretion as to the period of conversion, interest will

be sold. be allowed upon the value of the reversion at the end of a year from the death. Wilkinson v. Duncan, 23 B.

. 469; Johnson v. Routh, 3 Jur. N. S. 1041; 27 L. J. Ch. 305; Countess of Harrington v. Atherton, 3 D. J. & S. 352.

If the reversion falls in before it is sold the tenant for life is entitled to interest at 4 per cent. from the death upon the value of the reversion at the end of a year from the death, on the assumption that it was to fall in when it actually did fall in. Wilkinson v. Duncan, 23 B. 469; Wright v. Lambert, 6 Ch. D. 649.

7. The tenant for life is entitled to the income of a Income of fund set apart to pay contingent legacies. Crawley v. pay conCrawley, 7 Sim. 427 ; Fullerton v. Martin, 1 Dr. & Sm. legacies

tingent 31; Cranley v.Dixon, 23 B. 513; Allhusen v. Whittell, goes to

tenant for 4 Eq. 295.

fund to

life.

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