Turner v Wright

JurisdictionEngland & Wales
Judgment Date21 July 1860
Date21 July 1860
CourtHigh Court of Chancery

English Reports Citation: 45 E.R. 612



S. C. Johns. 740; 29 L. J. Ch. 598; 6 Jur. (N. S.), 809; 8 W. R. 675.

612 TURNER V. WRIGHT 2 DE 0. F. ft J. 234. [234] turner v. wright. Before the Lord Chancellor Lord Campbell. July 4, 7, 21, 1860. [S. C. Johns. 740; 29 L. J. Ch. 598; 6 Jur. (N. S.), 809 ; 8 W. E. 675.] Devisee in fee subject to an executory devise over in the event of his not leaving issue living at his decease : Held, dispunishable for legal but not for equitable waste. This was an appeal by the Defendant from a decree of Vice-Chancellor Wood, declaring in. substance that the Defendant, a tenant in fee-simple of certain real estates, subject to an executory devise over on the happening of a contingent event in favour of the Plaintiff, was dispunishable for legal waste, but not for equitable waste. The facts of the case, which is reported below in Mr. Johnson's Reports (page 740), were the following :- E. Wright by his will, dated in September 1853, charged his mansion-house and estates in Brattleby and North Kelsey, in the county of Lincoln, with payment to his sister Mary Wright and her assigns during her life of the clear yearly rent charge of 300, free of legacy duty, with powers of distress and entry for recovering the same. The testator then gave and devised as follows:-"And (subject to the said yearly rent charge of 300, and the powers and remedies for recovering the same) I devise all my said mansion-house and estates in Brattleby and North Kelsey aforesaid, with the appurtenances, to the use of my brother the Reverend William Wright, Rector of Healing, in the said county of Lincoln, in fee ; but in case he should die without leaving issue living at the time of his decease, then I devise my said mansion-house and estates, with the appurtenances, to the use of my said sister and her assigns during her life, without impeachment of waste; and, from and after her decease, to the use of Samuel Wright Turner, of Nettleton Rectory, in the said county of Lincoln, Esquire, [235] in fee ; but if he shall die without leaving issue male living at the time of his decease, then I devise my said mansion-house and estates to the use of the eldest son of the Reverend Dr. Parkinson, of Ravendale, in the said county of Lincoln, cleric, in fee; but in case such eldest son should die before he shall become entitled to the possession or to the receipt of the rents and profits of my said estates hereinbefore devised, then I devise my said mansion-house and estates to the use of Robert, the second son of the said Dr. Parkinson, in fee." i The will then contained a declaration that Samuel Wright Turner should, within one year next after he should become entitled to the possession or to the receipt of the rents and profits of the devised estates, take, use and bear the name and arms of the testator, or forfeit his interest under the will in the said estates. The testator died in 1857, when William Wright, then of advanced age, entered into possession of the devised premises, and some time afterwards cut some, and marked for cutting other, timber upon those estates, and advertised a sale thereof. Thereupon Samuel Thomas Turner filed the bill in the present suit, alleging that a considerable portion of the timber so cut and marked for cutting had been planted and left standing as ornamental to the mansion-house and for shelter, and that other portions of it were immature, and praying that W. Wright, the Defendant, might be restrained by injunction from cutting down any timber, or at any rate, any ornamental or immature timber, and for an account of timber already cut. At the date of the bill W. Wright had not had any issue, and the testator's sister had died. [236] The Vice-Chancellor, by the decree appealed against, declared that the Defendant W. Wright was entitled to fell all such timber on the estates as was mature or fit to be cut, except such as was left planted or left standing by way of ornament or shelter with reference to the occupation of the mansion-house at Brattleby ; but that he was not entitled to cut any unripe timber, or any timber planted or left standing for shelter and ornament as aforesaid, and directed an inquiry as to any timber for shelter or ornament as aforesaid cut or marked for cutting; and that the Defendant should be restrained, pending the inquiry, from cutting the timber marked, on the Plaintiffs undertaking to answer damages. 2 BE G. F. & J. 287. TURNER V. WRIGHT 613 Mr. Bolt, Sir Hugh Cairns and Mr. Kay, for the Plaintiff. It is agreed on both sides that the evidence is sufficient to shew an intention to cut clown ornamental timber. That raises the question both of legal and equitable waste ; and as the case is re-opened, though the appeal is not that of the Plaintiff, we ask for an injunction to the full extent of the prayer of the bill. The question is, whether the Defendant is to be considered as absolute owner of the devised premises in fee, having a right to pull down the mansion-house and cut down timber as he pleases; in fact, not.'only whether he is unimpeachable for waste, but whether he is at liberty to do as he likes as to waste. The authorities, we submit, establish that the Defendant is impeachable for waste ordinary as well as equitable. The only error in the Vice-Chancellor's decree is, that it stops short of restraining all waste. As to equitable waste, the case of Wriijht v. AOeyns (17 Ves. 255 ; Sugden, Law of Property, 376) is in accordance with the decree; but Mobinxon v. Litton (3 Atk. 209), [237] approved of by Lord Eldon in Stansfield v. Habergham (10 Ves. 273), is an express authority in favour of our claim in its entirety. The case under consideration is different from that of tenant for life unimpeachable of waste. There equitable waste is restrained, but not other waste, for reasons grounded on the incidents of a life-estate and the rules of this Court as to such incidents. But here the question is merely of the intention of the testator ; MicMethwait v. Micklethwait (1 De G. & J. ; 04); and upon the construction of this will it is submitted that an intention is to be implied that the estate in its integrity was to go to its successive takers, and that no timber whatever was to be cut by the Defendant pending the contingency on the happening of which the estate is to go over. The estate given to the Defendant, though not a fee-simple, may be dealt with by the Defendant as if it were a fee, subject always to the contingency of its being defeated on the happening of a contingent event. If that event conies to pass, then the property in its integrity is to pass to others in succession, but that could not take place if the Defendant's interest were unimpeachable of waste. Had the property given consisted of a single house, or a set of chambers in an upper floor, it could not have been contended that the Defendant by removing, or concurring in the removal of, the house, might leave to his successor, or the contingent event happening, a mere tabula rasa of soil, or an upper layer of air. A tenant in tail general or special is not to be restrained from committing waste, inasmuch as by executing a disentailing deed he may make the estate his own, but when upon the failure of issue inheritable under the entail his estate becomes an estate tail after possibility of issue extinct, he becomes impeachable of waste, this Court interposing in favour of the intention. [238] The same reasons apply as a ground for the restriction of legal waste as of equitable waste, and we submit that the injunction should extend to the restraint of all waste. Mr. Daniel and Mr. Speed, for the Defendant. The authorities upon the doctrine of waste are divisible into two classes; first, as it affects the owner of an estate of inheritance ; secondly, as it affects the owner of an estate which could not by possibility extend beyond his life. It is to those two classes of cases alone that the doctrine of equitable waste is ever applied, and the Court is not disposed to extend the doctrine, but considers it as already extended too far. The only instance in which the doctrine is applied as against the owner of the inheritance, is where the estate of inheritance is held upon a trust. Where the Court is satisfied of the existence of a trust, it will restrain the trustee from committing waste of any kind for his own benefit; but where there is uo trust the Court leaves the owner of the inheritance in undisturbed enjoyment of all his rights as tenant in fee-simple, without any restraint as to waste of any description. The authorities which have been cited are all cases of trust, and therefore in our favour rather than against us. The decision appealed from is the first instance of an injunction being granted under similar circumstances. The right to restrain the owner of the inheritance from cutting down timber is not maintainable, and for this reason, that an estate of inheritance includes as one of its incidents the right to do the acts which in the owner of a limited interest only would be equitable waste; Suvil's case (Moseley, 224). An estate in fee-simple, though followed by an executory devise over on a contingency, is, to all intents and purposes, a fee-simple, and attended [239] with the same incidents, as a right to eurtesy or dower; Margrave's Collectanea Juriclica (vol. 1, p. 332). There is no reason why the incident of a right to commit waste should be excepted. The intention of the testator is to guide the Court in the exercise of its jurisdiction, and in this will the testator seems to have 614 : TURNER V. WRIGHT 2 DE Ct. F. * J. 240. been well advised as to the distinction between legal interests to which the control of a Court of Equity is an incident, and legal interests to which it is not incident. It is true that the lands are to be held and enjoyed by the devisees in succession, but that is no reason for qualifying or...

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4 cases
  • Walsh v Sligo County Council
    • Ireland
    • High Court
    • 20 December 2010
    ...Council [1912] 2 K.B. 317. Turner v. Walsh (1881) 6 App. Cas. 636; 50 L.J.P.C 55; 45 LT 50. Turner v. Wright (1860) 2 De G.F. & J. 234; 45 E.R. 612. Vandeleur v. Glynn [1905] 1 I.R. 483. Wiedemann v. Walpole [1891] 2 Q.B. 534; 7 T.L.R. 722. Williams-Ellis v. Cobb [1935] 1 K.B. 310; [1934] A......
  • Blake v Peters
    • United Kingdom
    • High Court of Chancery
    • 3 March 1863
    ...is no authority directly in point, but so far as the cases touch the question, they support the position that he can. In Turner v. Wright (Johns. 740 ; 2 De G. F. & J. 234), it was held, that a devise in fee, subject to an executory devise over, was at liberty to commit legal waste, but an ......
  • Mertens v Haigh
    • United Kingdom
    • High Court of Chancery
    • 3 November 1860
    ...at another time. It is necessary that the order should be made precise, and it will be in these terms : V.-C. xv.-20* 618 TURNER V. WRIGHT JOHNS. 740. The Defendants to be at liberty to file an affidavit stating which of the scheduled books are required for use by them in the conduct of the......
  • Marquise De La Bedoyere v Greville Nugent
    • Ireland
    • Chancery Division (Ireland)
    • 13 March 1890
    ...13 Ch. Div. 179. Halliwell v. Phillips 4 Jur. (N. S.) 607. Micklethwait v. MicklethwaitENR 1 De G. & J. 504. Turner v. WrightENR 2 De G. F. & J. 234. Ford v. TynteENR 2 De g. J. & S. 127. Coffin v. Coffin Jacob's R., 70. Wombwell v. Belasyse 6 Ves. 110 a, note. And Ibid. 110b, note. The Mar......

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