No. 11. Williams v. Williams, 12 East, 213, 214.

succession; and in the same deed power is given her to lease for 21 years on condition of making the lessee punishable for waste. [BAYLEY, J. That power was necessary, otherwise the first son of the marriage coming into possession would not have been bound by the lease. Lord ELLENBOROUGH, C. J. If she cut down trees, at whose suit could she be impeached for waste?] Supposing the person entitled to the intervening remainder in tail after possibility, &c., were not the same person as the tenant for life in possession, such intervening remainder would not devest the right of the first tenant in remainder of the inheritance to the timber: then it seems to follow that if the estate for life be not merged, the same person having the two estates in succession would not affect the right of the owner of the inheritance. Another question arises, Whether these estates, having been settled upon the wife provisione viri, be not within the stat. 11 H. VII., c. 20, made against alienations by the wife of the lands of her deceased husband settled upon her for life or in tail. In Cook v. Winford, Hil. 1701, 1 Eq. Cas. Abr. 221, and ib., 400, by the name of Cook v. Whaley, a jointress, who was tenant in tail after possibility, &c., was held to be within the statute, and therefore restrained from committing waste; the timber being part of the inheritance. That case, if accurately reported, is decisive; but search has been made, and no account of it is to be found

in the Registrar's book; therefore some* doubt has been [* 214] thrown upon it, otherwise the present question would not have been sent here. But even before the statute, such tenant in tail after possibility could not have suffered a recovery and aliened the inheritance: yet if she could cut and convert the timber to her own use, which is often of more value than the mere soil, part of the land might be taken and wasted, against the manifest intention of the statute. And as timber passes by the word " land," this case falls within the precise words of the statute: and there is no reason for restraining the words of it, as this case is equally within the mischief meant to be guarded against. The only difficulty is upon the remedy given by the statute, which is by entry, and which cannot apply to timber cut; and also upon the proviso at the end, that the widow may aliene for her life, which is equally inapplicable to the same subject-matter. But, by Lord COKE, Co. Lit. 365, b.,1 the effect of the statute is to strip every

1 Vide the cases upon the exposition of the statute collected there, and in p. 326 b

No. 11. Williams v. Williams, 12 East, 214–216.

tenant in tail provisione viri of the power of cutting timber, as a mode of alienating the inheritance. [BAYLEY, J. Do you mean to contend that if the tenant in tail had had issue, she could not have cut timber?] If she were a jointress provisione viri, she could not. [Lord ELLENBOROUGH, C. J. It is one thing to say that timber standing is land; but it is another question whether committing waste by cutting it down can be said to be an alienation of the land. ] A jointress provisione viri could not sell the timber standing; but if she could cut it down and then sell it, she would be enabled to do that indirectly which the law does

*

not allow to be done directly. But supposing the widow [*215] was not impeachable of waste, still she has no property in the trees when cut down; for it is said in Herlakenden's Case, 4 Rep. 63, a.1 that “if tenant in tail after possibility, &c., fell the trees, the lessor (i.e., there, the next in remainder of the inheritance) shall have them; for inasmuch as he has but a particular interest for life in the land, he cannot have an absolute interest in the trees; but he shall not be punished in waste, because his original estate is not within the statute of Gloucester, c. 5. [LE BLANC, J. That was not the point in judgment: and it is introduced with, " It is said," &c.] In Abraham v. Bubb, 2 Show. 69 and 2 Freem. Chy. 53 (p. 495, ante), Lord Chancellor FINCH took the same distinction, and restrained such a tenant from doing waste; and referred to Eudall v. Eudall 2 for the opinion of Lord C. J. ROLLE to the same effect. And in Whitfield v. Bewil, 2 P. Wms. 240, Lord MACCLESFIELD held that the property of timber cut down by tenant for life belonged to the first

[* 216] remainder-man in * tail,

I Sed vide Pyne v. Dor, 1 T. R. 55 (and the cases there cited).

2 In the report of Abraham v. Bubb, in Freem. Chy. 54, Lord C. J. ROLLE is stated to have been of opinion in Eudall v. Eudall, that trover would lie for the reversioner against tenant in tail after possibility, &c. for trees cut down by him; but that case, which is to be found by the name of Udall v. Udall, in Alleyn, 81, and of Uredall v. Uvedall, M. 24 Car. II., in B. R. in 2 Rol. Abr. 119, was not the case of tenant in tail after pessibility, but the case of A. tenant for life, remainder to his first and other sons in tail, remainder to B., and to his first and other sons in tail; and A. having no issue, cut the timber. And it was held that the

though there were intervening

possibility of the estate tail which might come to A.'s son, if he had any, was no impediment to B.'s son C. (or, as Alleyn has it, another remainder-man in tail), who was then the first tenant in tail, maintaining trover against A., the tenant for life in possession ; the property of the trees when cut being in him who had the immediate inheritance of the land in him at the time when they were cut; though the intervening remainder for life to B. was an impediment to C.'s maintaining an action of waste during B.'s life. Note, The tenants for life there were not made unimpeachable of waste. And this is agreeable to the decision in Whitfield v. Bewil, 2 P. Wms. 240.

estates for life. Now here the question is, who had the first estate of inheritance? Not the tenant in tail after possibility; for such an estate cannot merge an estate for life, but is in itself mergeable in an estate tail, Co. Lit. 28 a; but the plaintiff. The situation of the defendant is this; she is tenant for life of an estate impeachable of waste, with remainder to herself of an estate for life without impeachment of waste; remainder to the plaintiffs in fee; the plaintiffs therefore having the first estate of inheritance in remainder are entitled to the timber when cut.

Benyon, contra, in arguing for the affirmative of the questions proposed by the LORD CHANCELLOR for the opinion of this Court, said, that though he could not, against the authorities, contend that in strictness a tenancy for life could merge in a tenancy in tail after possibility, &c.; the quantity of both estates being the same, though of different qualities; yet he insisted that the defendant was entitled to enjoy all the interests of the greater estate in possession, notwithstanding her prior estate for life; which was merged, if at all, not in the tenancy in tail after possibility, &c., but in the immediate remainder in tail which she once had before the estate after possibility, &c., arose. For here, he observed, that upon the death of her husband, she became seised for life, with an immediate remainder in tail to her and her husband, while there was a possibility of issue of the marriage; and therefore her remainder in tail was not separated from her life estate by any intermediate state of inheritance; as in Lewis Bowles's Case, where there was a vested estate tail in John, the * issue, intervening between the life estate [*217] and the tenancy in tail in remainder; which vested estate

tail continued in John, who lived until after the time when the tenancy in tail after possibility arose. But here the remainder in tail in the issue was always in contingency, there having been no issue born. Now during the period when the defendant, tenant for life, had such immediate remainder in tail, and before the tenancy in tail after possibility, &c., arose, the merger of her life estate took place in such immediate tenancy in tail, without any intervening vested estate of inheritance; and not after the commencement of the tenancy in tail after possibility, &c. In this view the third question is not so properly framed in the terms of it as it should have been. [BAYLEY, J., asked if he had looked

at the case of Sutton v. Stone, in 2 Atk. 101, in the beginning of which he observed, that there must be some mistake in the report. 1] But if the Court should consider that the defendant had only a bare tenancy for life, with a remainder in tail after possibility, &c.; still, by reason of the latter and greater estate, to the benefits of which she was entitled in possession, she is not impeachable of waste, and has the property in the timber cut. Lewis Bowles's Case, 11 Co. Rep. 81 a, was decided on the ground that the wife should, on account of the inheritance which was once in her have the same privilege as a tenant in tail after possibility, &c. ; considering that the privilege of such an one plainly was not only to cut the timber but to have the property of it when cut: and there was no question, it was said, but that a woman might be tenant

in tail after possibility, &c., of a remainder, as well as of [* 218] a possession. * As to the objection, that this interest, coming to the defendant provisione viri, is therefore unalienable by the stat. 11 H. VII., and that the cutting of timber by a jointress was held, in Cook v. Winford, 1 Eq. Cas. Abr. 221, 400, to be within the prohibition of the statute; the distinction attempted to be taken in that case is an admission of the general right of tenant in tail after possibility, &c., to cut and enjoy timber; but that distinction is not supported by any other authority, and much doubt has been thrown upon that case, which is not to be found in the Registrar's book, and has never been acted upon since. The case does not come within the words of the statute, which is against the alienation of lands coming to the wife provisione viri; and the application of it to timber is neither consistent with the remedy given by entry, nor to the proviso for the wife to alienate during her life. The reason, too, given in the case why a jointress tenant in tail after possibility, &c., cannot cut timber, because she cannot alienate the land itself, would equally apply to a tenant for life without impeachment of waste, to whom the statute has never been contended to apply: and it is impossible to distinguish the two cases in principle: the one is not impeachable of waste by the act of the parties; the other by the act of law. Abraham v. Bubb was not the case of a tenant in tail after possibility, &c., restrained from cutting trees at all, as might be supposed from the short note in 2 Shower, 69, but

1 This part of the case is noticed in Fearne's Cont. Rem. 81, 4th edit., as not being intelligible.

restrained from wasting ornamental trees, as it appears by the fuller report of the same case in Freeman, Chy. 53. It is not improbable that the case of Cook v. Winford, which was in Hil. 1701, may have been of the same description; for shortly after, in * Hil. 1704, the MASTER OF THE ROLLS decided, Freem. [* 219] Ch. 278, Anon., that a woman tenant in tail after pos

sibility, &c., had a right to cut timber in general; though he had restrained her from cutting ornamental timber, because that seemed to be malicious. Then as to the property of the timber when cut, there can be no doubt that it belonged to the tenant in tail after possibility, &c.; what was said to the contrary in Herlakenden's Case, 4 Co. Rep. 63, a, was an obiter dictum, which was denied to be law in Lewis Bowles's Case, 11 Co. Rep. 83, a it was in fact thrown out at a time when the same doctrine was supposed to extend also to prohibit tenant for life, without impeachment of waste, from taking timber when cut. But it has been long settled that tenant for life, sans waste, has the property in the timber when prostrated; and this was recognized in Pyne v. Dor, 1 T. R. 55, in this Court, and in the Bishop of London v. Webb, 1 P. Wms. 528, in Chancery.

Dampier, in reply, said that a separate estate for life could never merge in a joint remainder in tail; for then the husband's estate for life would in his lifetime have merged in the joint remainder in tail. That this was not so strong a case for a merger, if there could have been any, as Lewis Bowles's Case: for there the husband and wife had a joint estate for lives, with a joint remainder in tail, after the intermediate estates tail limited to the first and other sons unborn: but even there, where the estates in possession and in remainder to the husband and wife were both joint, yet it was only held that the joint estate for lives merged sub modo in the joint remainder in tail, till issue was born, and then by operation of law the husband and wife became tenants for their lives, remainder, &c. *Here, then, after the death [* 220] of the husband, and while there was still a possibility of issue of the marriage, Catherine Williams could only take a remainder in special tail sub modo, that is, till after possibility of issue extinct (and the daughter of a daughter of the marriage could not have taken under that entail); and after that she took a general estate tail after possibility, &c., in remainder after her life estate. And though she should be dispunishable of waste in