## Facts

- A testator built a substantial Fifth Avenue mansion in Manhattan for use as his residence.
- By will, the testator devised successive life estates in the property, with remainders over to other family members and trusts.
- George Tuttle Brokaw held the first life estate; various relatives, trustees, and infant beneficiaries held future interests.
- After the testator’s death, the neighborhood changed from private residences to predominantly apartment buildings, making the mansion difficult to rent and costly to maintain.
- The life tenant sought to demolish the mansion (with limited exceptions such as a party wall) and construct a multi-story apartment building projected to yield substantial annual profit.
- Future-interest holders objected, alleging the demolition would constitute waste and defeat the testamentary plan that the property remain a family residence.

## Issues

1. Whether a life tenant may lawfully demolish a specifically devised “residence” and replace it with an apartment building based on changed conditions and greater profitability.
2. Whether demolition of a substantial existing structure integral to the devise constitutes affirmative waste and permanent injury to the inheritance.
3. How the testator’s intent, as expressed in the will’s description and plan for family holdings, limits the life tenant’s permissible use.

## Decision

- The court ruled for the future-interest holders and denied declaratory relief.
- The life tenant had no right to demolish the mansion and erect an apartment building.
- Demolition would constitute waste because it would permanently alter and destroy an essential part of the property the remaindermen were entitled to receive.
- Changed neighborhood conditions and potential economic gain did not justify a fundamental change in the character of the devised property.

## Legal Principles

- A life tenant may not commit waste: acts that cause permanent injury to the inheritance.
- Demolishing a substantial, sound structure that is an integral part of what was devised is affirmative (voluntary) waste.
- When a will devises a life estate in a specifically described property (such as a “residence”), the life tenant’s use is constrained by the obligation to preserve the property’s essential identity for the remaindermen.
- Economic advantage to the life tenant, or even to the estate as a whole, does not authorize destruction of the thing devised when it would defeat the remaindermen’s expectancy and the testator’s expressed plan.

## Conclusion

The court held that the proposed demolition and redevelopment by the life tenant would be waste because it would destroy the specifically devised residence and permanently change the inheritance the remaindermen were entitled to receive, notwithstanding changed conditions and anticipated profitability.


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