Sumner v. Bingham

SAYRE, J. When a branch of this.litigation was here on former appeal (Bingham v. Sumner, 206 Ala. 266, 89 South. 479), the judgment was that Martin T. Sumner held the lands in suit as tenant for life, and, as to .that, there has never been any question between the parties. But it was also held that, in the contingency presented by the facts — -the children of Martin T. and testatrix Ada H. Sumner, his wife (who departed this life in 1899), having died pending the life estate — the remainder of the estate was not disposed of by her will, and would descend to the principal appellee on this record, Rosemary Bingham, heir at law of the deceased owner. The present bill is filed by the life tenant, individually and as administrator of the estate of Percy H. Sumner, one of the two children, who died in 1919 — the other having-died in early infancy — and seeks a decree ascertaining the amount of the permanent enhancement of the value of the lands, thus partially disposed of by the will, by reason of improvements made thereon by complainant and said Percy during his life, apportioning the same ratably and equitably between the estates for life and in reversion, and declaring a lien on the last-named estate in favor of the former to the extent of the value of the improvements so apportioned to it. Appellant takes occasion to draw into question the opinion and judgment of the court on former appeal as to the proper interpretation of the will; but wo are not yet convinced that the conclusion then reached was erroneous, and apprehend that the reasons upon which it proceeded need no further statement. Moreover, it may be well to note, the present bill proceeds upon the theory that the decision in the former case was correct, and its equity depends exclusively upon that theory. The main purpose of the present bill— ostensibly so at least — has been stated. It may be conceded that the question whether the estate in reversion should be required to compensate the life estate for permanent improvements and whether equity will create a lien upon the reversionary estate upon consideration of general principles of justice, ex aequo et bono, has fallen into some sort of dispute in other jurisdictions; but there can be no doubt that at the common law, if the tenant for life makes improvements upon the estate, as distinguished from ordinary repairs, he cannot claim compensation therefor from the reversioner or remainderman, though he is under no legal obligation to do more than keep the premises in repair. 1 Washb. Real Prop. (6th Ed.) § 237; Tiedeman on Real Prop. (2d Ed.) § 68; 16 Am. & Eng. Encyc. of Law (2d Ed.) 117; 21 C. J. 953, § 91. Mr. Pomeroy says: - “In pursuance of the same general doctrine” — that is, the doctrine that, “Where a party innocently and in good faith, though under a mistake as to the true condition of the title, makes improvements or repairs or other expenditures which permanently increase the value of the property, so that the real owner, when he seeks the aid of equity to establish his right to the property itself, or to enforce some equitable claim upon it, having been substantially benefited, is required, upon principles of justice and equity, to repay the amount expended. If a tenant for life, holding under a will, expends money in completing permanently beneficial improvements to the property, which had bepn commenced by the testator, such an outlay is held to constitute a valid claim for reimbursement against the reversioner, and an equitable lien upon the property as security *448 for its repayment; while outlays for altogether new and original improvements”— such as are averred in the present bill— “being made with full knowledge of the title, would create no such, claims.” 3 Pom. Eq. Jur. (4th Ed.) § 1242. The reason given for the rule is that the life tenant does not hold adversely to the remainderman or reversion-er, and must therefore he held to have made improvements merely with a view to enjoying them so long as the life estate continued, or to have intended them for the benefit of the remainderman. 16 Am. & Eng. Encyc. Law (2d Ed.) 118, where the cases are cited. And this court in Pickett v. Pope, 74 Ala. 132, said: “Apart from the influence of the statute [referring to the statute, sections 2951-2954 -of the Code of 1876, allowing the value of his improvements to an adverse holder for three years or more] it is well settled, upon principles too well defined to require discussion, that improvements put on land by a life tenant, during bis occupancy, constitute no charge upon the land, but pass to the remainderman.” There is no averment that complainant claimed more than a life estate, nor could there have been any plausible basis for such claim. On the facts averred, it may very well be that complainant made the improvements in question for account of himself and his son, whom, it is averred, he considered to be the owner in remainder. If it be conceded that he intended to improve the estate for the sole benefit of the remainderman, his son, then in life and prospective taser under the will, his false assumption that there was a vested estate in remainder — whereas in law and fact the interest of his son in remainder was contingent upon the failure of a conveyance in fee executed in virtue of the power vested in the executor prior to the falling in of the life estate — will not suffice to create a claim against the reversion for improvements. Cleland v. Clark, 81 Am. St. Rep. 182, note. These conclusions are supported by the great weight of judicial opinion, the cases being collected in a note tb the text of 21 Corpus Juris, supra. The rule has been relaxed in some cases. Thus it is held that where improvements of a permanent character are made by compulsion, as in the case of municipal improvements to be paid for by taxation, the cost should be apportioned between the life estate and the remainder or reversion according to the-benefit accruing to each. Troy v. Protestant Episcopal Church, 174 Ala. 380, 56 South. 982, Ann. Cas. 1914B, 815. And in some circumstances the rule is still further relaxed, as where buildings become untenantable without neglect on the part of the life tenant, or where, by reason of changed conditions, improvements are considered necessary, or in order to obtain a reasonable return from property which is unproductive. In re Whitney, 75 Misc. Rep. 610, 136 N. Y. Supp. 633, where the New York cases- in support of this relaxation are cited. _ But we venture to doubt that the decision of the Surrogate’s Court in that case finds support in the cases cited from the Court of Appeals, viz. Chamberlin v. Gleason, 163 N. Y. 214, 57 N. E. 487, and Stevens v. Malcher, 152 N. Y. 551, 46 N. E. 965. At any rate, our conclusion is that the courts generally have laid down the correct rule, and should be followed. The conclusion noted above and the decision in Bingham v. Sumner, 206 Ala. 266, 89 South. 479, suffice, in principle, to dispose of the contention that complainant, as administrator — we have heretofore spoken of him as complaining in his own right — should be compensated for improvements. Eurther discussion would serve no purpose. Our opinion is that the decree of the ,circuit court, in equity, should be affirmed. Affirmed. All the Justices concur, except -THOMAS, J., who dissents, and ANDERSON, C. J., not sitting.