The tenant for life shall be entitled to the full use and enjoyment of the property if in such use he exercises the ordinary care of a prudent man for its preservation and protection and commits no acts which would permanently injure the remainder or reversion interest. For the want of such care or the willful commission of such acts, the tenant for life shall forfeit his interest to the remainderman if the remainderman elects to claim immediate possession.
(Orig. Code 1863, § 2235; Code 1868, § 2229; Code 1873, § 2255; Code 1882, § 2255; Civil Code 1895, § 3090; Civil Code 1910, § 3666; Code 1933, § 85-604.)
Law reviews.- For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For comment on Graham v. Bryant, 211 Ga. 856, 89 S.E.2d 640 (1955), see 19 Ga. B.J. 362 (1957).
JUDICIAL DECISIONSANALYSIS
General Consideration
Section has binding effect of statute.
- This statute was included in the Code of 1863, which was regularly adopted by the Legislature, and also included in the several subsequent Codes, some of which have likewise been adopted by the Legislature, and consequently it has all the binding effect of statute. Central of Ga. Ry. v. State, 104 Ga. 831, 31 S.E. 531, 42 L.R.A. 518 (1898); Lee & Bradshaw v. Rogers, 151 Ga. 838, 108 S.E. 371 (1921) (see O.C.G.A. § 44-6-83).
Present section is declaratory, and at the same time restrictive of the common law. Brown v. Martin, 137 Ga. 338, 73 S.E. 495 (1912). See also Dickinson v. Jones, 36 Ga. 97 (1867); Woodward v. Gates, 38 Ga. 205 (1868); Belt v. Simkins, 113 Ga. 894, 39 S.E. 430 (1901); Roby v. Newton, 121 Ga. 679, 49 S.E. 694, 68 L.R.A. 601 (1905) (see O.C.G.A. § 44-6-83).
Since forfeitures are not favored by the law, this statute should be strictly construed, as is criminal law. Roby v. Newton, 121 Ga. 679, 49 S.E. 694, 68 L.R.A. 601 (1905) (see O.C.G.A. § 44-6-83).
Word "willful" should not be construed to mean simply intentional, rather than malicious or wanton, for a statute which imposes a forfeiture should be strictly construed. Roby v. Newton, 121 Ga. 679, 49 S.E. 694, 68 L.R.A. 601 (1905).
Section applied by regarding instrument's provisions and property's nature and prior use.
- In applying this statute, regard must be had for the provisions of the instrument creating the life estate and the nature of the property in which the life estate was given, and the use to which it was put at the time the will was executed and when it went into effect. Lee & Bradshaw v. Rogers, 151 Ga. 838, 108 S.E. 371 (1921); Fort v. Fort, 223 Ga. 400, 156 S.E.2d 23 (1967) (see O.C.G.A. § 44-6-83).
Code provides for forfeiture only for waste in life estate, and an estate for years. Treisch v. Doster, 171 Ga. 525, 156 S.E. 231 (1930).
Forfeiture not applicable to landlord-tenant relation.
- Common-law action of waste for forfeiture and damages, when there is no estate for life nor for years, but merely the relation of landlord and tenant, cannot be maintained. Warlick v. Great Atl. & Pac. Tea Co., 170 Ga. 538, 153 S.E. 420 (1930).
Executor not required to give bond if life tenant possesses entire estate free from debts.
- In a proceeding to require an executor to give bond under former Code 1933, § 113-1216 (see O.C.G.A. § 53-7-32), if it appears that under the terms of the will the entire estate was bequeathed to the widow of the deceased for her life and that she immediately became possessed of the estate (to the exclusion of the executor for the remainder of her life, if no debts), and at her death it was to go to their children, share and share alike, and since it does not appear that there were debts of the estate, there was no need for the executor to give bond. Pass v. Pass, 56 Ga. App. 59, 192 S.E. 64 (1937).
Cited in Hicks v. Wadsworth, 57 Ga. App. 529, 196 S.E. 251 (1938); Trust Co. v. Kenny, 188 Ga. 243, 3 S.E.2d 553 (1939); Coleman v. Durden, 193 Ga. 76, 17 S.E.2d 176 (1941); Roberts v. Wilson, 198 Ga. 428, 31 S.E.2d 707 (1944); Smith v. Thomas, 199 Ga. 396, 34 S.E.2d 278 (1945); Raines v. Shipley, 200 Ga. 180, 36 S.E.2d 150 (1945); Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947); Rigdon v. Cooper, 203 Ga. 547, 47 S.E.2d 633 (1948); Smith v. Minich, 125 Ga. 386, 110 S.E.2d 649 (1959); Stevens v. Citizens & S. Nat'l Bank, 233 Ga. 612, 212 S.E.2d 792 (1975); Raulerson v. Smithwick, 263 Ga. 805, 440 S.E.2d 164 (1994).
Rights and Duties of Life Tenant
1. In General
Tenant for life is entitled to the full use and enjoyment of property. In this respect, there is no difference between realty and personalty. Thomas v. Owens, 131 Ga. 248, 62 S.E. 218 (1908).
Life tenant who possessed farmland pursuant to a will was entitled to cut trees on the farmland, to sell the trees, and to retain the proceeds as part of the tenant's full use and enjoyment of the land, over the objection of the remainder beneficiary who wanted the proceeds placed in a trust with the principal to remain in place for the beneficiary while the interest went to the life tenant. Robinson v. Hunter, 254 Ga. App. 290, 562 S.E.2d 189 (2002).
Trial court abused the court's discretion in holding a mother in civil and criminal contempt for protecting the mother's rights as a life tenant, pursuant to O.C.G.A. § 44-6-83, in real property that had been part of a consent order between herself and the son, as the consent order indicated that the son could operate a salvage business on a portion of the property, but it did not allow the son to expand the business to the full area of the property; the mother should not have been sanctioned and threatened with future sanctions for filing suit to protect the mother's interests in the property against the son's interfering actions as the mother had a right to the full use and enjoyment of the property. Carden v. Carden, 276 Ga. App. 43, 622 S.E.2d 389 (2005).
Life estate subject to remainderman's right to have property in state of security.
- Tenant for life in property is entitled to the possession of the "corpus" of the property for the tenant's own use, subject to a right in the remainderman to have the property in a state of security, to be forthcoming to the remainderman, on the termination of the life estate. Crisp County Lumber Co. v. Bridges, 187 Ga. 484, 200 S.E. 777 (1939).
Life tenant's duty to protect and preserve property.
- Life tenant owes to remainderman duty of ordinary care to protect and preserve the property, and to commit no act tending to the permanent injury of the person entitled to the remainder interest. Butler Naval Stores Co. v. Glass, 187 Ga. 317, 200 S.E. 286 (1938).
Life tenant is bound to make necessary repairs to maintain the property. Citizens & S. Nat'l Bank v. Martin, 246 Ga. 284, 271 S.E.2d 192 (1980).
Relation of life tenant to remainderman quasi trusteeship.
- Because of the duty to preserve and protect the estate in remainder, the relation of the life tenant to the remainderman has been held to be, to a certain extent, a fiduciary one, and termed an implied or quasi trusteeship. Crisp County Lumber Co. v. Bridges, 187 Ga. 484, 200 S.E. 777 (1939).
Will construed to mean that life tenant's estate was charged with support to remainderman so long as the life tenant lived. Raines v. Shipley, 199 Ga. 316, 34 S.E.2d 281 (1945).
Life tenant and remainderman not in privity.
- While a life tenant owes to a remainderman the duty of ordinary care to protect and preserve the property, they are not in privity with each other, since they hold different estates in the same property, and the former is not a trustee for the latter. Lazenby v. Ware, 178 Ga. 463, 173 S.E. 86 (1934).
Life tenant acts in the tenant's individual capacity and is liable for any tax on the sale of growing timber; the tenant is not liable in a fiduciary capacity under the Internal Revenue Code. West v. United States, 310 F. Supp. 1289 (N.D. Ga. 1970).
Owner of life estate may maintain ejectment against one who wrongfully holds possession of premises. Smallpiece v. Johnson, 210 Ga. 310, 80 S.E.2d 296 (1954).
Ejectment will lie in favor of a tenant in common against a cotenant when the latter attempts to oust him or sets up an adverse possession to the realty so jointly owned. Smallpiece v. Johnson, 210 Ga. 310, 80 S.E.2d 296 (1954).
No injunctive relief when failure to show interference with estate.
- When the plaintiff had no more than a life estate in timber on the tract, and the plaintiff did not allege that in order to properly preserve and protect the property it was necessary to cut the timber, plaintiff's petition failed to show a right to cut the timber and failed to state a cause of action for injunctive relief against the defendant from interfering with the plaintiff's cutting of the timber or for damages therefore. McClure v. Chastain, 218 Ga. 510, 128 S.E.2d 721 (1962).
Tenant may convey property when given absolute power of disposal.
- When the language of a will creates a life estate, but clearly and unmistakably gives the life tenant an absolute power of disposal, the life tenant may convey the property devised by deed of sale or gift. Williams v. Bullock, 231 Ga. 179, 200 S.E.2d 753 (1973).
2. Waste
Voluntary and permissive waste distinguished.
- When a life tenant who, by the exercise of ordinary care, could keep the premises from falling into decay, and who has the ability to do so both from the rents and profits of the estate and otherwise, from some motive unfriendly to the remainderman willfully refuses to keep the premises in reasonable repair, such act is just as much voluntary and willful waste as any affirmative act which would tend to destroy the value of the improvements to the remaindermen. Of course, if the life tenant, from poverty or inability to keep the premises from falling into decay, allowed them to get in such a condition, such conduct would be merely permissive, and would not be voluntary. Grimm v. Grimm, 153 Ga. 655, 113 S.E. 91 (1922).
In order for an action to constitute waste, it must appear that the act amounts to a willful injury to the freehold and does not come within the ordinary and legitimate use of the premises by the one holding the antecedent estate. Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353 (1946).
In determining what amounts to waste, regard must be had to the condition of the premises, and the inquiry should be, did good husbandry, considered with reference to the custom of the country, require the felling of the trees, and were the acts such as a judicious, prudent owner of the inheritance would have committed. Woodward v. Gates, 38 Ga. 205 (1868).
Tenant for life is entitled to the full use and enjoyment of the property, so that, in such use, the tenant exercises the ordinary care of a prudent man for the property's preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. In determining what amounts to waste, regard must be had to the condition of the premises, and the inquiry should be, did good husbandry, considered with reference to the custom of the country, require the felling of the trees, and were the acts such as a judicious, prudent owner of the inheritance would have committed. Graham v. Bryant, 211 Ga. 856, 89 S.E.2d 640 (1955), commented on in 19 Ga. B.J. 362 (1957).
Life tenant liable for waste.
- Statute does not distinctly declare that a tenant for life is liable for actual waste, or will be enjoined from committing threatened waste, but it has been held that such is the law. Dickinson v. Jones, 36 Ga. 97 (1867); Smith v. Smith, 105 Ga. 106, 31 S.E. 135 (1898); Kollock v. Webb, 113 Ga. 762, 39 S.E. 339 (1901); Belt v. Simkins, 113 Ga. 894, 39 S.E. 430 (1901); Roby v. Newton, 121 Ga. 679, 49 S.E. 694, 68 L.R.A. 601 (1905). See also Gleaton v. Aultman, 150 Ga. 768, 105 S.E. 445 (1920) (see O.C.G.A. § 44-6-83).
Tenant in dower is liable for waste committed. Brown v. Martin, 137 Ga. 338, 73 S.E. 495 (1912).
Liability for actual damages imposed.
- Liability both for permissive and voluntary waste is imposed upon the tenant for life, and all such tenants are liable to the reversioner or remainderman for actual damages resulting from waste of either character. Roby v. Newton, 121 Ga. 679, 49 S.E. 694, 68 L.R.A. 601 (1905).
Tenant may be restrained from committing future waste.
- Tenant for life who holds the estate without impeachment for waste is not liable at law to a remainderman for waste committed, though the tenant may be restrained by a court of equity at the instance of a remainderman from committing further acts of waste in the future which are destructive of the inheritance, or are of a wanton and malicious nature. Belt v. Simkins, 113 Ga. 894, 39 S.E. 430 (1901). See also Gleaton v. Aultman, 150 Ga. 768, 105 S.E. 445 (1920).
Estate of life tenant is not impeachable by a destructive trespass of a stranger, which the life tenant neither licenses nor negligently suffers to be done. Kehr v. Floyd & Co., 132 Ga. 626, 64 S.E. 673 (1909).
Clearing land was waste in England, but is not waste in Georgia, provided the land cleared still leaves the proportion of cleared land to uncleared land such as an ordinarily prudent person would maintain upon one's own property. Brogdon v. McMillan, 116 Ga. App. 34, 156 S.E.2d 828 (1967).
Life tenant's control over growing timber is almost absolute and it is almost impossible to prove any waste by normal cutting. West v. United States, 310 F. Supp. 1289 (N.D. Ga. 1970).
Tenant empowered to cut and sell timber.
- Irrespective of the powers of sale granted in the subject will, life tenants are empowered to cut and sell timber in order to preserve and protect the value of the land. Grant v. Bell, 246 Ga. 371, 271 S.E.2d 467 (1980).
No waste from cutting timber unless willful injury.
- Cutting and thinning of pine timber in accordance with good forestry practices is not waste, unless willful injury to the remainder is shown by acts not essential to the legitimate use of the life estate. Durrence v. Durrence, 239 Ga. 705, 238 S.E.2d 377 (1977).
Waste question of fact for jury.
- If a widow works land for turpentine purposes, which had not previously been so worked by the testator, it would be a question for the jury whether working the trees was such a permanent injury to the trees as was beyond the rights of the widow during the existence of her term. Lee & Bradshaw v. Rogers, 151 Ga. 838, 108 S.E. 371 (1921).
While cutting timber and clearing land do not always constitute waste, such a question is generally for the jury. Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353 (1946).
Property can be used for same purposes as was used when life estate was created. Durrence v. Durrence, 239 Ga. 705, 238 S.E.2d 377 (1977).
Working trees for turpentine.
- Tenant holding under a devise of land "during widowhood" has the right to use the land and pine trees growing thereon, by hacking and otherwise working the trees for turpentine purposes, as against a person entitled in reversion, since prior to the testator's death the testator used the land and trees for such purposes, without being liable for waste. Lee & Bradshaw v. Rogers, 151 Ga. 838, 108 S.E. 371 (1921).
Turpentining also authorized if only income tenant can derive.
- If the defendant conveyed land to the defendant's granddaughter at a time when the land was woodland and not in cultivation, reserving to defendant a life estate, and the only income the life tenant could derive from the property was from turpentining the pines and from properly thinning the pine timber and selling that cut for pulpwood, the defendant was authorized to do so. Sutton v. Bennett, 215 Ga. 379, 110 S.E.2d 650 (1959).
Tenant cannot sell timber to injury of freehold.
- While a widow who has taken a homestead in the land of her deceased husband is entitled to a reasonable and proper use thereof and of the timber thereon for the benefit of herself and the other beneficiaries of the homestead, she cannot make a sale of the standing timber on the land, when it appears that the sale will injure the value of the freehold and is not essential to a legitimate use of the property for homestead purposes. Smith v. Smith, 105 Ga. 106, 31 S.E. 135 (1898).
No right to sell timber when right reserved by grantor.
- Clear purpose of the grantor in reserving the right to sell timber was to reserve to the grantor greater rights than those which inhere in a life tenant as to the timber on the lands from which such estate is carved, and to escape the perils of forfeiture of the grantor's life estate by a sale of the timber. Simpson v. Powell & Co., 158 Ga. 516, 123 S.E. 741 (1924).
Life tenant may not sell all the timber on the land. As to partial cutting of timber, the fact situation must control. The question to be decided in each case is whether the value of the freehold will be injured. Brogdon v. McMillan, 116 Ga. App. 34, 156 S.E.2d 828 (1967).
Tenant may not permit destruction by beetles.
- In the context of a life tenant's duty to protect and preserve the estate for the remaindermen, permitting the destruction of timber by pine beetles could constitute waste. Aurelio v. Williams, 246 Ga. 428, 271 S.E.2d 825 (1980).
Sale of timber permitted to preserve estates against act of God.
- If timber is subject to hazards from an act of God, equity will permit and authorize a sale to protect and preserve the estates. Aurelio v. Williams, 246 Ga. 428, 271 S.E.2d 825 (1980).
For a list of common-law wastes, see Dickinson v. Jones, 36 Ga. 97 (1867).
Insurance proceeds used to rebuild, or held for remainderman.
- When a life tenant insures the property, and it is subsequently destroyed, the proceeds should be used in the rebuilding of the structure on the property, or be held for the benefit of the remainderman. Citizens & S. Nat'l Bank v. Martin, 246 Ga. 284, 271 S.E.2d 192 (1980).
Interest on insurance proceeds held for remainderman.
- When a lumber company purchases the interest of a life tenant and takes out storm insurance in the company's own name on a building on the premises, the owner of the life interest paying the premium with its individual funds, and upon the destruction of the building by storm collects the insurance, the proceeds of the insurance stand in the place of the property destroyed, and should be used in rebuilding the dwelling, or should be held by the owner of the life interest for the benefit of the remainderman upon the life tenant's death, in which case the owner of the life interest would be entitled to the interest on the fund during this period. Crisp County Lumber Co. v. Bridges, 187 Ga. 484, 200 S.E. 777 (1939).
Continued possession after acts of waste cures defect.
- Since a life tenant holds under a written muniment of title, even though the title might become subject to forfeiture on account of acts of waste, continued possession thereafter under such title for seven years would as a general rule cure any such defect in the life tenant's title, and constitutes what would be, in effect, the period of limitation. Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353 (1946).
Forfeiture not authorized.
- Fact that the life tenant has sold and thus removed several million board feet of timber from the premises, and through neglect and failure to make any repairs has permitted damage to structures on the premises, and through neglect has permitted cultivated land to lay out and grow up in pine trees, so that it can no longer be cultivated, does not reasonably indicate such a wanton disregard of the rights of the remaindermen so as to authorize forfeiture of the life estate. Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353 (1946).
Failure of a life tenant to pay ad valorem taxes as required by a warranty deed and to exercise ordinary care for the preservation of the property resulted in the forfeiture of a life estate as a matter of law. McIntyre v. Scarbrough, 266 Ga. 824, 471 S.E.2d 199 (1996).
3. Taxes and Expenses
Holder of a life estate is responsible for ad valorem taxes. Henderson v. Tax Assessors, 156 Ga. App. 590, 275 S.E.2d 78 (1980).
Tenant is chargeable with taxes which accrued while tenant lived and was entitled to income from the property. McCook v. Harp, 81 Ga. 229, 7 S.E. 174 (1888).
Failure to pay burdens imposed by law would tend to divest title.
- Neglect to pay the burdens imposed by law upon the property during the term would be a want of such ordinary care as a prudent person should exercise for the person's protection and preservation, and would tend to divest the title to the fee by exposing it, or a portion of it, to sale, to raise the taxes levied on it. The life tenant has not the right to expect the remainderman to pay part of taxes. Austell v. Swann, 74 Ga. 278 (1884).
Tenant not liable for taxes if exempted by devisor.
- While the will may create a life estate in the widow and unmarried children of the testator, the use of the words, "his wife and unmarried children be permitted to occupy the same, free of rent or other charges, during her widowhood; at the death or marriage of his wife," etc., shows that the testator intended to create a quasi tenancy at sufferance or will, and she is not liable for the taxes. Griffin v. Fleming, 72 Ga. 697 (1884).
When estate ends during tax year, owner required to pay only proportion of tax.
- When a life estate, consisting of city property from which there could be no emblements, ends during the year for which an annual tax is assessed, the owner of the life estate, or the owner's personal representative, is required to pay that proportion of the tax as the part of the year elapsed up to the ending of the life estate bears to the whole of such tax year. Campbell v. Barnard, 74 Ga. App. 272, 39 S.E.2d 420 (1946).
Burial or last-illness expenses not necessarily chargeable against estate.
- Burial expenses of a life tenant or the expenses of the tenant's last illness are not, as a matter of law, chargeable against the life estate; if the life tenancy is created by will, such expenses are not chargeable against the corpus when the will does not expressly or by clear implication so provide. Reece v. McCrary, 51 Ga. App. 746, 181 S.E. 697 (1935).
Rights and Duties of Remainderman
Remainderman can only require that "corpus" of property be kept in preservation.
- In a life estate the tenant is entitled to have the possession of the property for the tenant's own enjoyment, and all that the remainderman can require is that the "corpus" of the property shall be kept in preservation, to be delivered to the remainderman on the termination of the life estate. Thomas v. Owens, 131 Ga. 248, 62 S.E. 218 (1908); Campbell v. Barnard, 74 Ga. App. 272, 39 S.E.2d 420 (1946).
Remaindermen have no right to recover the premises until the expiration of the life estate. McCook v. Harp, 81 Ga. 229, 7 S.E. 174 (1888); Fleming & Co. v. Ray, 86 Ga. 533, 12 S.E. 944 (1891).
When waste committed, remainderman can sue in tort or maintain forfeiture action.
- When waste has been committed by a life tenant, the person entitled to the remainder estate has the right to elect either to sue in tort for damages, or to maintain an action to forfeit the life estate, and under this latter election the suit does not sound in tort, but partakes of the nature of an action for title to land. Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353 (1946).
Contingent remainderman cannot sue for forfeiture.
- While remaindermen, whether the remainder is vested or contingent, may enjoin for waste, the holder of a contingent remainder may not sue for forfeiture of the life estate since the remainder interest of a remainderman holding a contingent interest is uncertain and it cannot be foretold whether the remaindermen will ever be entitled to take at all. Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353 (1946).
When life tenant causes permanent injury, remainderman may sue immediately for damages.
- When the owner of a life tenancy in real estate commits a waste by selling the timber thereon and causing the timber to be removed, to the permanent injury of the estate, such conduct amounts to a tort for which the remainderman may sue immediately to recover damages. In such a case, the life tenant does not hold the proceeds under an implied or resulting trust in favor of the remainderman, but is liable as a tortfeasor. Lazenby v. Ware, 178 Ga. 463, 173 S.E. 86 (1934); West v. United States, 310 F. Supp. 1289 (N.D. Ga. 1970).
No action against tenant for life without impeachment.
- No matter what may be the character of the waste committed, no one interested in the property has a right to call a tenant for life without impeachment into a court of law on account of the tenant's conduct. Lee & Bradshaw v. Rogers, 151 Ga. 838, 108 S.E. 371 (1921).
No specific period of limitation set up for forfeiture action.
- Phrase "For the want of such care . . . [or] the willful commission of such acts, . . . [he shall elect] to claim immediate possession" does not operate to set up a specific period of limitation amounting to immediate action since the language has manifest reference to the right of remaindermen to claim immediate possession rather than await the expiration of the antecedent estate. Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353 (1946).
Life tenant necessary party in forfeiture suit.
- In a suit by the remaindermen to forfeit the estate of the life tenant for waste, the life tenant is a necessary party. Kehr v. Floyd & Co., 132 Ga. 626, 64 S.E. 673 (1909).
Venue lies in county in which land located.
- An action by a remainderman against a life tenant to have the estate of the latter declared forfeited and the remainderman put in possession because of waste committed by the tenant is a suit "respecting titles to land," and the venue thereof is the county in which the land involved is located. Brown v. Martin, 137 Ga. 338, 73 S.E. 495 (1912).
In forfeiture action, plaintiff must show that corpus unnecessarily wasted.
- In an action for the forfeiture of a life estate, based in part on allegations of acts of voluntary waste consisting of cutting and selling timber, it is incumbent on the plaintiff to show not only that such encroachment has been made on the corpus of the estate, but also that it was not necessary to make the life tenant comfortable. Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353 (1946).
Remainderman not estopped from bringing subsequent damage action following forfeiture action.
- An action by the remaindermen against the life tenant for the forfeiture of a life estate because of waste was not inconsistent with a subsequent action by the remaindermen against the life tenant for damages based on the same facts so as to estop the remaindermen from bringing a subsequent action. Conner v. Bowdoin, 80 Ga. App. 807, 57 S.E.2d 344 (1950).