May v. Thomas

The opinion of the Court was delivered by *177 Mr. Justice Fraser. This is an appeal from decree of his Honor, Judge Gage, confirming the report of J. G. Hughes, Esq., special master, made in the case, and for a proper understanding of the case the report of the master, the decree of Judge Gage and exceptions thereto-, should be set out in the report of the case. We think it unnecessary to take up- the exceptions seriatim, as we -think -the decree in the main should be confirmed, but with this modification: That the contention of those holding under the lease made by life tenant could only be held to account for the rent provided to be paid in said lease. Sec. 3496, Code of Taws, vol. I, 1912 (new Code), provides : “If any person shall rent or hire lands of a tenant for life, and such tenant for life dies, the person hiring such land shall not be dispossessed until the crop of that year is finished, he or she securing the payment of the rent when due.” In this case, the remaindermen were bound- by the contract made by the life tenant. Where a life tenant makes a contract for the lease of his life estate, for a valuable- consideration, then the remaindermen are bound by the contract made by the life tenant and can collect the rent only provided for in that contract. This is a remainder under a will. Section 3563 of the Code of 1912 reads as- follows : “Any person having right or title to any lands, tenements, or hereditaments, whatsoever (persons of unsound mind and infants excepted), may dispose thereof by will, in writing, at his or her own free will and pleasure, except as hereinafter provided; but all wills dr testaments made of any lands, tenements, or other hereditaments, by any person within the age of twenty-one years, idiot, or by any person de non sane memory, shall not be taken to- be good and effectual in law.” The power to- make a will is statutory. The- statute provides who may make a will and who may not. It says ho-w *178 it shall be executed and how revoked. It provides that certain dispositions of property shall be void. It provides that a certain estate; that had theretofore been a life estate, should thereafter be a fee simple. The right to make a will is not a natural right. The natural right to* control property dies with the possessor. It is not a constitutional right. It is not mentioned there. Though of ancient origin, the right is a creature of statute and may be abridged at any time by the lawmaking power. When this will was made; when it became of force and when these remainders arose, this statute was in force. Therefore the will and all rights under it came into existence subject to* the statute. At the time the rights vested, they vested subject to the statute. Remainders could be forbidden. The same power that created a fee, in all of those lands devised, in which the estate was not inconsistent with a fee, could have provided that in every event and in defiance of the limitation the first taker should take a fee and declare all remainders void. It did not declare the remainder void, but it said to the remainderman, you can not get possession of agricultural lands until the end of the year. If the statute had the right to prevent the disposition altogether, it certainly had the right to postpone the exercise of the right of possession. The difficulty, however, is not in the postponement of the possession without the consent of the remainderman, but that the rent should be fixed by the life tenant and not by the “consent” of the remaindermen. If the law can withhold the land it can also* withhold a mere incident like rent. If the life tenant can not make a binding-contract for rent, neither can he make a contract that withholds the land itself. It is said that the tenant must pay a reasonable sum for the use and occupation. Who is to say what is a reasonable sum ? Manifestly the Courts must fix the amount. If the remainderman has a constitutional right upon which he is entitled to stand, then, that constitutional right is “consent.” The Court can not supply the want of *179 consent if the right of consent exists. As to public policy: on the one hand, some life tenants may let their estates at unreasonably small rents. On the other, the income to be derived from property held by life tenants would be nothing If, upon the death of the life tenant, the tenant for a year must make a new contract with an unknown and unknowable remainderman, whose demands are limited only by his conscience and that may be elastic. Thus the life tenant, the immediate object of the testator’s bounty, may be deprived of the entire benefit of a valuable estate. The remainderman takes the estate subject tO‘ the burden of a lease (that can not exceed a year) and the statute that imposes the burden is. in all respects fair and entirely constitutional. After the life tenant dies, the remaindermen can require the tenant to' secure the payment of the rent when due. In this case the tenants under the life tenant are liable to. pay the remaindermen two-thirds (3-3) of what they had contracted with George W. Hill, the life tenant, to pay for the year. It is the judgment of this Court that the decree of the Circuit Judge be modified in accordance with the views, indicated herein. Judgment modified. Messrs. Justices Woods and Watts concur.