timber. wind or other accident, become the property of the tenant in possession, whether impeachable of waste or not (j). Windfalls of But the Court of Chancery has jurisdiction to order the proceeds of windfalls to be invested to form a fund for the benefit of all parties according to their interests in the settled estate (). "If a large quantity of timber is destroyed by a storm, upon an estate, that would be laid out in the purchase of stock, and the interest of the fund would be paid to the successive tenants for life" (7). Upon a timber estate where the tenant for life is entitled to cut timber in due course as part of his ordinary profit, the proceeds of windfalls would be invested and applied as nearly as possible in the same manner as the actual profits of cutting (m). Trees are not considered as windfalls unless severed from the soil; trees thrown down by the wind which still remain attached to the soil, belong to the inheritance; the attachment or severance being a question of fact as to each particular tree (n). tion of Court. Timber cut by Where land is settled, and the tenant for life is impeachorder or sanc-able for waste, there is no legal right to cut timber during his tenancy, though it be ripe for cutting or going to decay. Under such circumstances the Court of Chancery exercises jurisdiction to order the cutting of timber for the preservation and improvement of the property, upon application made for that purpose by any of the parties interested (o). Trustees of the settled estate may have a power of cutting timber given to them by the settlement without application to the Court; and, in general, they would be justified in doing in this respect without a previous order whatever () 11 Co. 81b, Bowle's Case, cited by the Court in Tooker v. Annesley, 5 Sim. 240; Bateman v. Hotchkin, 31 Beav. 486; 32 L. J. C. 6; Honywood v. Honywood, L. R. 18 Eq. 306; 43 L. J. C. 652. (k) Bagot v. Bagot, 32 Beav. 509; 33 L. J. C. 116. (1) Romilly, M. R., Lushington v. Boldero, 15 Beav. 1; 21 L. J. C. 52. (m) Harrison v. Harrison, L. R. 28 C. D. 220; 54 L. J. C. 26; ante, p. 33. (n) Re Ainslie, L. R. 30 C. D. 485; 55 L. J. C. 615. (o) Bewick v. Whitfield, 3 P. Wms. 266. A timber. the Court upon application would order them to do. tenant for life has no such power of cutting timber for the benefit of the property, and if he does so without previous sanction, the Court will not subsequently ratify the act (p). A power of sale in trustees of settled estates does not authorize a sale of the land and of the growing timber separately without an express authority for that purpose; and a sale in excess of the power in this respect would be void both at law and in equity (q).-The Court requires Application that timber cut by its order and sanction shall be converted of proceeds of into money and invested to form a fund representing the growing timber, and following as nearly as possible the uses and limitations of the settlement. The income of this fund is payable to the tenant for life and to the other successive owners of the estate, until the vesting of the first absolute estate of inheritance in possession, the owner of which, as he could himself have cut the timber, then becomes entitled to have the whole fund (r). The tenant for life in possession, though impeachable for waste, and therefore without any right in the timber as such, is allowed the income of the fund in right of his possessory use of the trees while standing (s). A tenant for life "without impeachment of waste," on coming into possession, becomes absolutely entitled to the capital fund representing the timber, in right of his power to cut and take the timber absolutely for his own use during his possession (f). The fund representing the timber cut so far retains the character of the real property from which it (p) Chelmsford, L. C., Seagram v. Knight, L. R. 2 Ch. 630; 36 L. J. C. 310; Denton v. Denton, 7 Beav. 388. (2) Cholmeley v. Paxton, 3 Bing. 207; S. C. nom., Cockerell v. Cholmeley, 10 B. & C. 564; 1 Cl. & F. 61; Buckley v. Howell, 29 Beav. 546; 30 L. J. C. 524. (r) Jessel, M. R., Honywood v. Honywood, L. R. 18 Ch. 311; 43 L. J. C. 652; Shadwell, V.-C., Waldo v. Waldo, 12 Sim. 112; Mild- (8) Tooker v. Annesley, 5 Sim. (t) Waldo v. Waldo, 12 Sim. 107; Phillips v. Barlow, 14 Sim. 263; Gent v. Harrison, Johns, 517; 29 L. J. C. 68; Lowndes v. Norton, L. R. 6 C. D. 139; 46 L. J. C. 613. Ornamental timber. Exercise of jurisdiction. is derived, that upon the death of the owner of the inheritance before possession, his claim to the fund passes to his heir as real estate (u). Timber severed during the tenaney of a person absolutely entitled becomes a personal chattel, and passes to his executor and not to a devisee of the land (). The same course is adopted "where ornamental trees, or trees which could not otherwise be cut down even by a tenant for life unimpeachable for waste, are cut down; the proceeds are invested so as to follow the uses of the settlement" (w). A tenant unimpeachable for waste is entitled absolutely to the ornamental trees properly cut down during his possession by the order or with the sanction of the Court, or to the fund representing the proceeds (r). "The principle upon which the Court acts in directing timber to be cut is not the personal benefit of the parties, but the benefit of the estate itself." The Court will not order or sanction the cutting of timber, unless there are special circumstances rendering the cutting necessary or advantageous for the preservation or improvement of the property; as that the timber is going to decay or is overcrowded (y). Accordingly, in the case of an infant tenant in tail in possession (whose estate of inheritance entitles him to the timber), the Court will authorize the cutting of all timber which is fit and proper to be felled in a due course of management; but in the case of a tenant for life in possession, impeachable of waste (who has no right to cut any timber), the Court will only authorize the cutting of such timber as is decaying or which it is beneficial to cut by reason that it injures the growth of other trees (). (u) Field v. Brown, 27 Beav. 90. (e) Re Ainslie, L. R. 30 C. D. 485; 55 L. J. C. 615. (w) Jessel, M. R., L. R. 18 Eq. 311; 43 L. J. C. 652; Lushington v. Boldero, 15 Beav. 1; 21 L. J. C. 49. (x) Baker v. Sebright, L. R. 13 C. D. 179; 49 L. J. C. 65. (y) Hussey v. Hussey, 5 Madd. 44; Tooker v. Annesley, 5 Sim. 240; Seagram v. Knight, L. R. 2 Ch. 628; 36 L. J. C. 310. (z) Hussey v. Hussey, supra; Tollemache v. Tollemache, 1 Hare, 456; Ferrand v. Wilson, 4 Hare, 382. any timber. Act. By the Settled Estates Act, 1877, 40 & 41 Vict. c. 18, Statutory ss. 16, 31 (re-enacting 19 & 20 Vict. c. 120, s. 11), "It powers to sell shall be lawful for the Court from time to time to authorize a sale of the whole or any parts of any settled estates, or of timber (not being ornamental timber) growing on any settled estates"; and to apply the money received on any sale in the purchase or redemption of incumbrances; or in the purchase of hereditaments to be settled in the same manner as the hereditaments in respect of which the money was paid; or in payment to any person becoming absolutely entitled. Under this enactment the Court ordered money arising from a sale of timber to be expended in erecting new farm buildings, upon the principle that the erection of buildings is substantially the same thing as the purchase of an estate (a).-By the Settled Land Act, 1882, 45 & 46 Vict. c. 38, s. 35, Settled Land "Where a tenant for life is impeachable for waste in respect of timber, and there is on the settled land timber ripe and fit for cutting, the tenant for life, on obtaining the consent of the trustees of the settlement or an order of the Court, may cut and sell that timber, or any part thereof." And "three-fourth parts of the net proceeds of the sale shall be set aside as and be capital money arising under this Act, and the other fourth part shall go as rents. and profits." Tenant for life without impeachment of waste, selling a settled estate under the powers of the Settled Land Act, upon conditions of sale that the purchaser is to take the timber at a valuation, is not entitled absolutely to the price of the timber; it is an addition to the price of the estate which must be treated as capital money payable to the trustees under the 21st section of the Act (b). (a) Re Newman's Estates, L. R. 9 Ch. 681; 43 L. J. C. 702. (b) Re Llewellin, L. R. 37 C. D. 317; 57 L. J. C. 316; see Doran v. Wiltshire, 3 Swanst. 699. Emblements. CHAPTER IV. GROWING CROPS. Emblements or growing crops--pass to executor-may be taken in execution may be distrained. Tenant's right to emblements-tenant for years-tenant from year to Sale of growing crops separately-Statute of Frauds--Bills of Sale The term "emblements" is used to designate the growing crops cultivated by the labour and at the cost of the tenant in possession, which are treated in law for many purposes as moveable chattels and as the personal property of the tenant, because his intention in cultivating them is to increase his personal estate rather than to benefit the heir or successor to the land. The class of things thus designated includes the annual crops of corn and grain, hemp and flax, hops, potatoes, turnips and the like, clover and artificial grasses; but not "growing grass which is the natural and permanent produce of the land renewed from time to time without cultivation" (a). It does not include timber or other trees, whether mature or immature; nor does it include the growing fruit of trees, as growing crops of apples and pears (6). The term as used in law conveys only the present annual crop, and not the future crops of cultivated products which bear annual crops for several successive years, as of clover and artificial grasses (c). (a) Co. Lit. 55b; Wms. Ex. 597, 4th ed.; per cur. Evans v. Roberts, 5 B. & C. 832. (b) Co. Lit. 55 b; per cur. Evans v. Roberts, 5 B. & C. 835; Rodwell v. Phillips, 9 M. & W. 505. (c) Graves v. Weld, 5 B. & Ad. 119. |