1. Lombe v. Stoughton, 17 Sim. (Eng.) 84; Sohier v. Eldredge, 103 Mass. 345, 351, 325.

Where trustees are directed to improve waste lands, the expense of fencing comes out of the capital. Cooley v. Wellesley, L. R., 1 Eq. (Eng.) 661.

Where trustees are directed to purchase and invest in real estate, they may put such estate in tenantable repair, and the expense of such repair will be charged upon the trust fund as part of the purchase money. Parsons υ. Winslow, 16 Mass. 361.

It seems also that where an estate is settled to certain uses, and a fund directed to be applied to the purchase of an estate to be settled to the same uses, and it is more beneficial to the remainderman that part of the fund should be applied to the repair and preservation of the estate already settled, the court will direct a part of the fund to be so applied. Caldicott v. Brown, 2 Hare (Eng.) 145. Re Barrington's Estate, I Johns. & H. (Eng.)_142.

2. Plympton v. Boston Dispensary, 106 Mass. 544; Williams v. Brace, 5 Conn. 190; Peck v. Sherwood, 56 N. Y. 615; Miller's Case, Tuck. (N. Y.) 346; Stilwell v. Doughty, 2 Bradf. (N. Y.) 311; Fleet v. Desland, II How. Pr. (N. Y.) 489; Cairns v. Chabert, 3 Edw. (N. Y.) 312; Holcomb v. Holcomb, 29 N. J. Eq. 597, 601.

It is readily seen that where the improvement is compulsory the objection that a just apportionment might lead the lire tenant to impair the remainderman out of his estate is without foundation.

To warrant the apportionment of the assessment, the improvement must be permanent; otherwise the whole falls on the tenant for life. As to what improvements will be considered permanent is a point upon which authorities are by no means agreed. Laying an ordinary pavement has been held not to

be a permanent improvement within the principle. Hitner v. Ege, 23 Pa. St. 305; Whyte v. Nashville, 2 Swan (Tenn.) 364. Contra, Peck v. Sherwood, 56 N. Y. 615.

In Plympton v. Boston Dispensary, 106 Mass. 544, the mode of apportionment adopted was to charge the life tenant with interest during his life on the amount paid, and the remainderman with the principal.

Buildings Destroyed by Fire-Insurance Money.-Where the building is totally destroyed, the trustee cannot rebuild unless expressly empowered by the instrument to do so. In such case the relative rights of life tenant and remainderman are transferred to the insurance money. Perry on Trusts, $ 553; Lerod v. Wilmarth, 9 Allen (Mass.) 382; Haxall v. Shippen, 10 Leigh (Va.) 536; Graham v. Roberts, 8 Ired. Eq. (N. Car.) 99.

But if only partially burnt or destroyed, and the trustee has an insurance policy, he should apply the money in repairing the building. Brough v. Higgins, 9 Gratt. (Va.) 408.

Either the equitable life tenant, remainderman or trustee has an insurable interest. Perry on Trusts, § 553. 3. Harris v. Poyner, 1 Drew. (Eng.) 174.

4. Dent v. Dent, 30 Beav. (Eng.) 363, 368.

5. Saunders v. Haughton, 8 Ired. Eq. (N. Car.)_217; Horry v. Glover, 2 Hill. Ch. (S. Car.) 516, 520.

An exception existed in some of the Southern States in the case of the increase of slaves. Saunders v. Haughton, 8 Ired. Eq. (N. Car.) 217.

As to duty of keeping up stock, see § VI, b, n.

6. Daly v. Becket, 24 Beav. (Eng.) 114; Thursby v. Thursby, L. R., 19 Eq. (Eng.) 395; Vivian v. Jegon, L. R., (1 C. P. 9, 2 C. P. 422), 3 H. L. 285; Spencer v. Scurr, 31 Beav. (Eng.) 334

Elias v. Snowdon Slate Co., L. R., 4 App. Cas. 454; Miller v. Miller, L. R., 13 Eq. (Eng.) 263. See also Westmoreland Coal Co.'s Appeal, 85 Pa. St. 344; Gaines v. Green Pond Mining Co., 6 Stew. Eq. (N. J.) 603; Crouch v. Puryear, 1 Rand. (Va.) 25; Hendrix v. Mo. Beth. 61 Ind. 473; Lenfers v. Henke, 73 Ill. 403.

The life tenant's right has also been recognized, although the mine was not opened till after the testator's death. Wentz's Appeal, 106 Pa. St. 301, 304, 307. See McClintock v. Dana, 106 Pa. St. 386; Shoemaker's Appeal, 106 Pa.

St. 392.

But the correctness of this portion seems at least doubtful, in the absence of special circumstances.

In Campbell v. Wardlaw, L. R., 8 App. Cas. (Eng.) 641, testator directed his trustees to pay his wife "the whole annual produce and rents of the residue of his estates, both heritable and movable." Coal and iron mines were leased by the testator before his death. His trustees afterwards leased others. Held that the wife was not in law entitled to the rents of the mines opened after testator's death.

In Dickin v. Haurer, 1 Dr. & Sim. (Eng.) 284, the widow was allowed one third of the income of the proceeds of the royalties of mines opened after her husband's death, but not to one third of the royalties as corpus. Earlier English cases forbade the opening of new mines altogether. Whitfield v. Bewit, 2 P. Wms. (Eng.)

240. Where the testator demised all the seams of coal under his estate, and only two seams were worked or known of in his lifetime, and after his death a new seam was discovered which could only be worked by sinking a new shaft, it was held that the life tenant was entitled to the annual profits arising from the new seam. Spencer v. Scurr, 31 Beav. (Eng.) 334. See Elias v. Snowdon Slate Co., L. R., 4 App. Cas. (Eng) 454; Cowley v. Wellesby, 35 Beav. (Eng.) 638.

It has also been held that the life tenant may work an open mine to exhaustion. Westmoreland Coal Co.'s

Appeal, 85 Pa. St. 344; Shoemaker's Appeal, 106 Pa. St. 392.

1. Mulford v. Mulford, 42 N. J. Eq.. 68. See Moore v. Rollins, 45 Me. 493; Billings v. Taylor, 10 Pick. (Mass.) 460; Freer v. Stotenbur, 2 Abb. App. Dec. (N. Y.) 189; Kies v. Peterson, 41 Pa. St. 357; Lynn's Appeal, 31 Pa. St. 44; Owings v. Emery, 6 Gill (Md) 260.

So money produced by the sale of gravel on waste land is income. Cowley v. Wellesley, L. R., 1 Eq. (Eng.) 656, 659.

In Bagot v. Bagot, 32 Beav. (Eng.) 509, it was held to be a question of degree to be established by the evidence,. whether the working of a dormant or abandoned mine by tenant for life was. waste or not.

A devise of salt works to testator's wife for life, with large legacies charged thereon, has been construed as authorizing her to make an unlimited use of the salt minerals and also of the testator's woodland from which he obtained fuel to carry on the works in his lifetime.. Findlay v. Smith, 6 Munf. (Va.) 134.

Timber. The proceeds of underbrush and timber cut periodically in the regular course of thinning forests, are to be treated as income and go to the life tenant; but the proceeds of timber not cut in the regular course of thinning but to improve the growth of the remaining trees, forms a part of the capital of the estate. Cowley v. Wellesley, L. R., 1 Eq. (Eng.) 657; s. c., 35 Beav. (Eng.) 645; Honeywood v. Honeywood, L. R.,. 18 Eq. (Eng.) 306.

As to what proportion of the timber the life tenant may cut without being guilty of waste, the rule varies somewhat with the locality, greater thickness being required in old and well settled regions than in sparsely settled, well wooded regions. See Whitfield v. Beust, 2 P. Wms. (Eng.) 240; Jackson v. Brownson,. 7 Johns. (N. Y.) 227; Porch v. Fries, 3 C. E. Gr. (Eng.) 204; Wallington v. Taylor, Sax. (N. J.) 314; Hastings v.. Crunkleton, 3 Yeates (Pa.) 261; Neel v. Neel, 19 Pa. St. 323; Lynn's Appeal. 31 Pa. St. 44; Haker . Christy, z Southard (N. J.) 717; Parkins v. Čoxe, 2 Hayw. (N. Car.) 339: Johnsor >

Johnson, 2 Hill Ch. (S. Car.) 277, 296. As to shingle trees. Macaulay v. Dismal Swamps Co., 2 Rob. (Va.) 509; Ballentine v. Poyner, 2 Hayw. (N. Car.) 110.

As turpentine trees. Carr v. Carr, 4 Dev. & B. (Eng.) 179. See WASTE.

as

The privileges of one who holds lands in fee subject to a divesting condition, are the same in regard to waste those of a tenant in tail; neither can commit waste. Wallington v. Taylor, Sax. (N. J.) 314.

1. DiVIDENDS, 6, 5 Am. & Eng. Encyc. of Law, p. 736. See also Woerner Am. Law of Admst., § 457; Perry on Trusts, §§ 543, 545 and notes; Wms. Exrs. (7th Eng. ed.) 836 note (a), 839 note (m), 1394 note (u), 1395 note (z), 1439 note (t) and cases cited. McLaren v. Stainton, L. R., 4 Eq. 448; s. c., L. R., 11 Eq. 382; s. c., 3 De G. F. & J. (Eng.) 202; Straker v. Wilson, L. R., 6 Ch. App. (Eng.) 503; Ibbotson v. Elam, L. R., I Eq. (Eng.) 188; Cox v. Cox, L. R., 8 Eq. (Eng.) 343; Grabowski's Settlement, L. R., 6 Eq. (Eng.) 12; Brown v. Gellatly, L. R., 2 Ch. App. (Eng.) 755; Ricketts v. Harling, Weekly Notes (Eng.) Dec. 1870, p. 260, V. C. M.; Daland v. Williams, 101 Mass. 571; Leland v. Hayden, 102 Mass. 542, 550; Balch v. Hallet, 10 Gray (Mass.) 402; Kinmouth v. Brigham, 5 Allen (Mass.) 270; Reed v. Head, 6 Allen (Mass.) 174; Atkins v. Albree, 12 Allen (Mass.) 359; Pratt v. Pratt, 33 Conn. 446; Richardson v. Richardson, 75 Me. 570; Simpson v. Moore, 30 Barb. (N. Y.) 630; Cragg v. Riggs, 5 Redf. (N. Y.) 121; Wiltbank's Appeal, 64 Pa. St. 256; Eastwick's Estate, 15 Phila. (Pa.) 569.

Dividends at common law are unapportionable; hence, though earned before the testator's death, if declared afterwards, they form income and not corpus. Wms. Exrs. (7th Eng. ed.) 836 n. (a), 1395 n. (u); Bates v Mackinley, 31 Beav. (Eng.) 280; McLaren v. Stainton, 27 Beav. (Eng.) 460, reversed; 3 De G. & J. (Eng.) 202; Lock v. Venables, 27 Beav. (Eng.) 598; Gilby v. Burley, 22 Beav. (Eng.) 616; Ellis v. Essex Merrimack Bridge, 2 Pick. (Mass.) 243, 248; Johnson v. Bridgewater Iron Mfg. Co., 14 Gray (Mass.) 274, 276. See also Foote Appellant, 22 Pick. (Mass.) 299; Sargent v. Sargent, 103 Mass. 297; Wiggins v. Swett, 6 Metc. (Mass.) 194;

Granger v. Bassett, 98 Mass. 462, 469; Brundage v. Brundage, 1 N. Y. Supr. Ct. 82; 65 Barb. (N. Y.) 397. 408; 60 N. Y. 544; Re Weeks, 5 Dem. (N. Y.) 194: Coleman v. Columbia Oil Co., 51 Pa. St. 74; Spear v. Hart, 3 Rob. (N. Y.) 420; Burroughs v. North Carolina R. Co., 67 N. Car. 376; Ex parte Rutledge, 1 Harper Ch. (S. Car.) 65.

Mass. Gen.Sts., ch. 97, § 24, which provides that annuities, rents, interest and income shall be apportionable, unless the instrument manifests a different intent, does not affect the rule as to dividends from the profits of incorporated companies, and such dividends are still unapportionable. WELLS, J., in Granger v. Bassett, 98 Mass. 462, 469; Foote, Appellant, 22, Pick. (Mass.) 299.

A similar construction has been placed upon a like statute in New York. N. Y. Acts 1875, ch. 542; Re Weeks, 5 Dem. (N. Y.) 194.

The mere fact that the dividend is declared in stock instead of cash, provided it really represents profits and not merely a new form of the capital, should not in itself be sufficient to exclude the life tenant. However, this is a point upon which authorities differ. See DIVIDENDS, 6. See Richardson v. Richardson, 75 Me. 570; s. c., 46 Am. Rep. 428.

On the same principle extra dividends or bonuses from the earnings of the company, representing accretions to the capital stock rather than current profits in the ordinary sense of the term are generally held to be income. See DIVIDENDS, 6. See also Perry on Trusts, § 544; Millen v. Guerrard, 67 Ga. 284; Briggs v. Cragg, 26 Hun (N. Y.) 89, 102. But see Gibbons v. Mahon, 4 Mackey (D. C.) 130; s. c., 54 Am. Rep. 262.

Otherwise, where the dividend, whether in cash or stock, in reality represents merely a new form of the original capital. Gifford v. Thompson, 115 Mass. 478; Heard v. Eldredge, 109 Mass. 258; Brown's Petition, 14 R. Í. 371.

In Rhode Island, the case is sent to a master to ascertain what proportion of the dividend represents earnings and what part the original capital. Bushee v. Freeborn, 11 R. I. 149.

An option to subscribe to new stock is usually accounted capital. Brinley

TION.

v. Gron, 50 Conn. 66, 75; s. c., 47 Am. Rep. 618.

1. Stevens v. Fisher, 144 Mass 114; Whitney v. Phoenix, 4 Redt. (N. Y.) 180; Outcalt v. Appleby, 36 N. J. Eq. 73. See Middleton's Appeal, 103 Pa.

St. 92. Appreciation in the value of unproductive property which executors have power to sell, and which they have held in order to get a satisfactory price for it, cannot be regarded as income. Outcalt v. Appleby, 36 N. J. Eq. 73.

Profits upon a sale of stock held in trust are principal, not income, and do not belong to the life tenant. Whitney v. Phoenix, 4 Redf. (N. Y.) 180.

A will gave to the executors $10,000 in trust, with directions to invest the same in interest bearing obligations, and to pay "the annual interest, income, and dividends thereof" to a life tenant, and, on his death, to divide “the principal or capital sum aforesaid" among the remaindermen. The fund was duly invested in securities paying fixed rates of interest annually. When the life tenant died and the securities were sold, a surplus remained beyond the amount of the original investment. Held, that this surplus belonged to the remaindermen. Re Gerry, 103 N. Y. 445; s. c., 18 Abb. (N. Y.) 179.

Premiums and Accrued Interest.. Testator left bonds which were worth more than par and which afterwards fell due. After his death the trustee bought other bonds, some at a price slightly above par and some at par, and accrued interest. Held as between the life tenant and the remainderman, that the former were entitled to all the net interest on the bonds received from the testator or bought by his trustees when worth more than par; and that the amount paid for accrued interest on the bonds bought should be retained from The interest subsequently received. Hemenway v. Hemenway. 134 Mass. 446. Testator gave the residue to executors in trust during the lives of his four sons, and directed the trustees to convert said residue into three enumerated

Kinds of stocks, and "to pay over all the dividends and income of said stocks, over and above the costs and charges of the executors and trustees as fast as they shall be received, in equal proportions to each of my said four sons." The trustees bought certain bonds, included in the securities specified in the will, for which they paid a premium. Held, that the remaindermen were not entitled to allowance for the premium paid. Shaw v. Cordis, 143 Mass. 443.

2. Defined by Abbott, Anderson, . Bouvier, Rapalje & Lawrence, Webster, Worcester.

For Legal Advice, Legal Assets, Legal Cruelty, Legal Fraud, Legal Holiday, see respectively EVIDENCE; EXECUTORS AND ADMINISTRATORS; DIVORCE; FRAUD; HOLIDAY.

"Legal Heirs" mean the person on whom the law casts title to property owned by an intestate (as in an insurance policy. Gauch v. Ins. Co., 88 Ill. 251), but it may be shown from an entire will that they were used to mean "next of kin." Peet v. Ry. Co., 8 S. W. Rep. 203.

Legal Notice to Quit.-The notice to quit required by law and not depending on the express stipulation of the parties. Friend v. Shaw, L. R., 20 Q. B. Div. 374.

Legal representatives ordinarily means executors or administrators, but it may be shown that the phrase was intended to mean: first, next of kin (Duncan v. Walker, 2 Dall. (U. S.) 205; Greenwood v. Holbrook, 42 Hun 633, on appeal 19 N. Y. 367; Halsey v. Paterson, 37 N. J. Eq. 448; Bacon's Benefit Societies & L. Ins., § 262; Woerner on Administration, p. 906); second, successors and assigns (Hammond v. Organ Co., 92 U. S. 724; Bank v. Trimble, 40 Ohio St. 629; Warnecke v. Lembca, 71 Ill. 91; third, a receiver of an insolvent corporation (Barbour v. Bank, 45 Ohio St. 133; s. c., 17 Am. & Eng. Corp. Cases 134.)

3. Ex parte Gibson, 31 Cal. 619.
4. Wood v. Strother, 18 Pac. Rep. 767.
5. Mattoon v. Monroe, 28 N. Y. 82..

1. Barker v. Chesterfield, 102 Mass. 127.

2. Weeks v. Cornwell, 104 N. Y. 325. 3. Bouv. L. Dict.; Wolfe v. McCaull, 76 Va. 876; State v. Denny, (Ind.) 24 Am. & Eng. Corp. Cas. 234; 21 N. E. Rep. 252. See Greenough v. Greenough, 11 Pa. St. 489; Wayman v. Southard, 10 Wheat. (U. S.) 1-51.

"There must be a time, in all parliamentary proceedings, when the controlling power of the legislative body [over a bill] must come to an end." Wolfe v. McCaull, 76 Va. 876; in which case it was held that the legislative body could not recall from the governor a bill presented to him; and that where the governor returned the bill without either approval or disapproval in compliance with the recall-the bill, not having been vetoed, became a law. See also Harpending v. Haight, 39 Cal. 189; People v. Devlin, 33 N. Y. 269; and see McNeil v. Commonwealth, 12 Bush (Ky.) 727, 732; Danielly v. Cabaniss, 52 Ga. 211; Tarlton v. Peggs, 18 Ind. 24; Soldier Voting Bill, 45 N. H. 610.

Three great departments characterize English and American political institutions-the executive, the legislative, the judicial. The legislature cannot invade the provinces of the executive and judiciary. It can create offices, but cannot appoint officers-excepting such as relate to the exercise of its own legislative powers or functions-unless the power so to do is conferred by express constitutional provision. Hovey v. State (Ind.), 24 Am. & Eng. Corp. Cas. 257; 21 N. E. Rep. at p. 21; State v. Denny (Ind.), 24 Am. & Eng. Corp. Cas. 234; 21 N. E. Rep. at p. 252.

In Wright v. Defrees, 8 Ind. 298, the court said that the powers of the three departments are not nearly equal; they are exclusive -they are absolutely independent of each other." See also Lafayette, M. & B. R. Co. v.

Geiger, 34 Ind. 185; Smith v. Myers, 109 Ind. 1; s. c., 9 N. E. Rep. 692; State v. Governor, 25 N. J. Law 331; Dennett Petitioner, 32 Me. 508; Law v. Towns, 8 Ga. 360; Mauran v. Smith, 8 R. I. 192; Hawkins v. Governor, 1 Ark. 570; R. Co. v. Randolph, 24 Tex. 317; People v. Bissell, 19 Ill. 229; Dickey v. Reed, 78 Ill. 261; Rice v. Austin, 19 Minn. 103; Western R. Co. of Minn. v. De Graff, 27 Minn. 1; s. c., 6 N. W. Rep. 341; Secombe v. Kittelson, 29 Minn. 555; s. c., 12 N. W. Rep. 519; Sill v. Čorning Village, 15 N. Y. 297; People v. Albertson, 55 N. Y. 50; Cooley Const. Limitations, *87, *88, *93, *114, *175; Sedgwick St. and Const. Law (2nd ed.) 132, 138, 184; 3 Am. & Eng. Encyc. of Law, 670, 681.

Constitutional authority to prescribe by law the manner of choosing officers not otherwise provided for in the constitution, does not enable the legislature itself to appoint or select the officers. State v. Denny (Ind.) 21 N. E. Rep. 252-April, 1889, MITCHELL, J., dissenting.

Enactments in excess of legislative power are void. Cooley Constitutional Limitations, *4, *173, etc. The legislature cannot make a judge arbiter in his own cause; in substance it would be the creation of an irresponsible authority belonging to neither department of government. And see Ames v. Port Huron, Log Driving etc. Co., 11 Mich. 139; Hall v. Thayer, 105 Mass. 219; State v. Crane, 36 N. J. L. 394; Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 350; Scuffletown Fence Co. v. McAllister, 12 Bush (Ky.) 312; Reames v. Kearns, 5 Coldw. (Tenn.) 217; Lanfear v. Mayor, 4 La. 97; s. c., 23 Am. Dec. 477; 3 Am. & Eng. Encyc. of Law 670, 693.

Nor can judgments be authorized without opportunity to party to be heard. Cooley, *175. See Bigelow on Estoppel, Freeman on Judgments,