§ 981. Personalty Consumable in Its Use: Specific and General or Residuary Bequests Distinguished.

Certain articles of personalty are of such a nature that their use amounts to their consumption. They are embraced under the description of articles que ipso usu consumuntur.22 As to testamentary gifts of such personalty, there is a distinction between specific bequests, and general or residuary bequests. It is the general rule that a specific bequest of any article quæ ipso usu consumuntur, although expressly limited to the legatee for life with a remainder over, confers on the legatee the absolute property in the chattel bequeathed. To give such articles as wine, corn, sheep or cattle for life, is to give the absolute property if the legatee is to have any use of it, since its

22 The following articles have been determined to be articles "quæ ipso usu consumuntur":

Corn and other provisions, wines, fruits, and live stock (Healey v. Toppan, 45 N. H. 243, 86 Am. Dec. 159); hogs, grain, and liquor (Appeal of Holman, 24 Pa. St. 174); corn, wheat, and provisions (Christler's Exr. V. Meddis, 6 B. Mon. (45 Ky.) 35); machinery in newspaper plant (Seabrook v. Grimes, 107 Md. 410, 126 Am. St. Rep. 400, 16 L. R. A. (N. S.) 483, 68 Atl. 883); wheat, oats, horses, cows, wagons, farming utensils, and lumber on a farm (Walker v. Pritchard, 121 III. 221, 12 N. E. 336); growing crops, manure, seeds, oxen, pigs, and sheep (Bryant v. Easterson, 5 Jur. N. S. 166); hogs, bacon, and wool (Gentry v. Jones, 6 J. J. Marsh (Ky.) 148); horses, cattle, and farming tools

(Rapalye v. Rapalye, 27 Barb. (N. Y.) 610).

On the other hand, farming stock and implements of husbandry have been held not to be articles "quæ ipso usu consumuntur," Groves v. Wright, 2 Kay & J. 347.

The contention that money given for life is an article consumed in its use and therefore an absolute gift was denied.-Field v. Hitchcock, 17 Pick. (34 Mass.) 182, 28 Am. Dec. 288.

Where there is a specific bequest to one for life, with remainder over, of particular personalty of a non-perishable nature but liable to be worn out and to deterioration in value from use, such as household furniture and farming utensils, then the life tenant takes the use only.-Healey v. Toppan, 45 N. H. 243, 86 Am. Dec. 159.

consummation is inseparable from its use.23 The foregoing general rule is in full force in some jurisdictions with a proviso that the life tenant lives to consume them, but should he die before the specific articles are consumed, any portion remaining at his death will go to the remainderman and not to those who would succeed to his personal property.21

When articles que ipso usu consumuntur are included in a general or residuary bequest with other articles of a different nature, in favor of a beneficiary for life with a remainder over, such articles must be sold by the executor and the interest only goes to the beneficiary, the principal being reserved for the remainderman. This rule applies most strongly with regard to residuary bequests, since the residue is first liable for the payment of the debts of the testator and it is natural that he presumed that merely the use of the net balance should go to the life tenant. And where articles of a different class are associated in the same gift with those which are consumed by use, the whole must go together; for the testator must intend that the remainderman should receive some benefit, and as he is entitled to have his interest conserved in other articles, it is assumed that the testator intended that he should likewise have his interest

23 Randall v. Russell, 3 Mer. 190, 194; Breton v. Mockett, L. R. 9 Ch. Div. 95; Christler's Exr. v. Meddis, 6 B. Mon. (45 Ky.) 35; Evans v. Iglehart, 6 Gill & J. (Md.) 171; Seabrook v. Grimes, 107 Md. 410, 126 Am. St. Rep. 400, 16 L. R. A. (N. S.) 483, 68 Atl. 883; Merrill v. Emery, 10 Pick. (27 Mass.) 507; Healey v. Toppan, 45 N. H. 243, 86 Am. Dec. 159; Acker

man's Admrs. v. Vreeland's Exr., 14 N. J. Eq. 23; Rapalye v. Rapalye, 27 Barb. (N. Y.) 610; Smith v. Barham, 17 N. C. 420, 25 Am. Dec. 721; Robertson v. Collier, 1 Hill Eq. (S. C.) 370; Henderson v. Vaulx, 10 Yerg. (18 Tenn.) 30; Bartlett v. Patton, 33 W. Va. 71, 5 L. R. A. 523, 10 S. E. 21.

24 Healey v. Toppan, 45 N. H. 243, 86 Am. Dec. 159.

conserved in those articles which might be consumed if allowed to pass into the possession of the first taker.25

The foregoing rules as to specific and general or residuary bequests for life of personalty consumable in its use will prevail unless there be in the will an indication of a contrary intention.26 Where the contrary is claimed, the burden is upon him who asserts a contention, and the mere absence of any direction in the will is not sufficient to overthrow the rule.27

§ 982. Compelling Security From Life Tenant of Personalty.

A life tenant of personal property or of money, chattels not consumable in their use, is entitled to its possession and can not be required as a matter of course to give security for its return either to the remainderman or those entitled to the reversion, but only in the sound discretion of the court exercised according to the circumstances.28 When there appears danger that the money or property may be wasted or put out of the way, security may be required.29 The practice is to require from the first taker an inventory of the goods specifying that they belong to him for the particular period only and after

25 Ackerman's Admrs. v. Vreeland's Exr., 14 N. J. Eq. 23; Covenhoven v. Shuler, 2 Paige Ch. (N. Y.) 122, 21 Am. Dec. 73; Smith v. Barham, 17 N. C. 420, 25 Am. Dec. 721; Saunders v. Haughton, 43 N. C. 217, 57 Am. Dec. 581; Bartlett v. Patton, 33 W. Va. 71, 5 L. R. A. 523, 10 S. E. 21.

Whenever the chattels are not sold but the property is delivered to the tenant for life, the increase, such as of cattle, belongs to him, and the remainderman is only enII Com. on Wills-36

titled to the original stock.— Saunders v. Haughton, 43 N. C. 217, 57 Am. Dec. 581.

26 Ackerman's Admrs. v. Vreeland's Exr., 14 N. J. Eq. 23; Healey v. Toppan, 45 N. H. 243, 86 Am. Dec. 159.

27 Healey v. Toppan, 45 N. H. 243, 86 Am. Dec. 159.

28 Houser v. Ruffner, 18 W. Va. 244.

29 Frazer's Admr. v. Bevill, 11 Gratt. (Va.) 9; Mortimer v. Moffatt, 4 IIen. & M. (Va.) 503.

ward to another in remainder. Security is not required from the first taker unless there is danger that the articles will be wasted or otherwise lost to the remainderman.30 It has been held that a tenant for life is not bound to give a receipt or sign an inventory unless there is reason to believe that the property will be destroyed or disposed of, in which case the executor may refuse to deliver it without security, or the remainderman may, after delivery, file his bill to compel security.31

§ 983. Respective Rights of Life Tenant and Remainderman.

Where property is given to one person for life with remainder to another, the former is entitled to the use for the period limited and the latter to the corpus after that time. Neither may encroach upon the right of the other. The life tenant may not diminish the corpus nor the remainderman the use, and what they may not do themselves, others may not do for them. The life tenant may not be deprived of the use to augment the corpus, nor the remainderman of the corpus to augment the use. The right to the use of the property entitles the life tenant to its net income. As applied to land, it entitles him

30 It seems that if at the termination of the life estate the articles are not in as good condition as when received by the life tenant, he must make good the deficiency. -Robertson v. Collier, 1 Hill Eq. (S. C.) 370, 373; Covenhoven v. Shuler, 2 Paige Ch. (N. Y.) 122, 21 Am. Dec. 73.

"There seems to have been much doubt among judges, what a person having a limited use of personal property bequeathed to

him is to do. Some have thought that the property must be turned into money and the interest only paid to the legatee; others have thought this would be a very rigid construction; and it is now settled, that the tenant for life is to have the possession and is not to be compelled to give security but only to exhibit an inventory."— Weeks v. Weeks, 5 N. H. 326.

31 Foley v. Burnell, 1 Bro. C. C. 274, 279; Smith v. Barham, 17 N. C. 420, 25 Am. Dec. 721.

to the crops or rent; as applied to money or bonds, it entitles him to the interest; and as applied to corporate stock, it should upon the same reasoning entitle him to the net earnings.32

Persons to whom personal property is limited in remainder have the right to be protected and secured against probable danger of its destruction or against more than ordinary deterioration, or hazard of the title.33 But if a beneficiary is given the "use" of personal property during his life and at his death the "unused portion" is to go to others, the first taker has a life interest in all the property given and may consume it in any way consistent with "his use," even to the extent of entirety. Such "use," however, is personal and does not confer the right to dispose of the corpus by gift during life nor by will at death.34

32 Bryan v. Aikin, (Del.) 86 Atl. an equitable conversion of the 674, reversing (Del.) 82 Atl. 817; realty into personalty.-Andress' Pritchitt v. Nashville Trust Co., Estate, 14 Phila. (Pa.) 240. 96 Tenn. 472, 33 L. R. A. 856, 36 S. W. 1064.

One entitled only to a life use can not make a mortgage of the property that will be valid as against the remainderman.—Myar v. Snow, 49 Ark. 125, 4 S. W. 381.

Parties who have an interest in personal property in the nature of a remainder may maintain a suit against the life tenant to protect their interests.-Goudie v. Johnston, 109 Ind. 427, 10 N. E. 296.

A remainderman may mortgage his interest in real property during the life of the first tenant, and this, too, although by the provisions of the will there has been

Where slaves were left to one legatee for life, and after his death over to another, and some of them died, and some were sold by the first taker, and the others were emancipated by a general emancipation proclamation, the life tenant was held liable to the remainderman for the slaves which he had sold, although had he not so disposed of them they would by reason of the general emancipation have been valueless to the remainderman. - Pettyjohn's Exr. v. Woodroof's Exr., 77 Va. 507.

33 Henderson v. Vaulx, 10 Yerg. (18 Tenn.) 30.

34 Hardy v. Mayhew, 158 Cal.