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Law School Case Brief

Brokaw v. Fairchild - 135 Misc. 70, 237 N.Y.S. 6 (Sup. Ct. 1929)


Any act of a life tenant which does permanent injury to an inheritance is waste. The law intends that the life tenant shall enjoy his estate in such a reasonable manner that the land shall pass to the reversioner or remainderman as nearly as practicable unimpaired in its nature, character and improvements. The life tenant may do whatever is required for the general use and enjoyment of his estate as he received it. The use of the estate he received is contemplated and not the exercise of an act of dominion or ownership. What the life tenant may do in the future in the way of improving or adding value to the estate is not the test of what constitutes waste. 


A testator bequeathed his life tenancies to Brokaw and Fairchild in adjoining mansions located in New York City near Central Park. Plaintiff Brokaw filed a declaratory action against Fairchild, his adjoining life tenant, and sought leave to demolish his residence and replace it with a 13-story apartment building. He provided evidence that the mansion was expensive to maintain, but that an apartment building would produce an income. 


Could Brokaw make permanent alterations to the property without the express permission of the testator?




The Court held in favor of Fairchild and others because the project would constitute waste even though the value of the property would be enhanced by the alteration. The Court found that the life tenancy restricted Brokaw to mere use of the property, and this right did not include making permanent alterations without the express permission of the testator. Reviewing the will, the Court found it clear that the testator intended for Brokaw to enjoy use of the mansion instead of an unfettered right to use the land for other purposes.

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