concurring specially. As clearly shown in the foregoing opinion by Judge Cobb, the law applicable to the forfeiture of estates as contained in the Civil Code, § 3090, is peculiar to this State. It differs from that at common law, and from the ancient English statutes. On this branch of the case, therefore, the decision can not be controlled by a consideration of general authorities. The principle announced is far-reaching. It covers any life-estate created by deed or will, and is not limited in its application to dower, the favorite of the law. While I concur in the judgment and in the ruling as to the effect of the evidence, I am unable to agree to the proposition announced in the first headuote that there must be a concurrence of permissive and voluntary waste before a forfeiture can result. The practical effect of that construction will be that in hardly any instance could a forfeiture result, no matter how great the waste or how serious the consequences to the remainderman. For rare indeed will be the case where the damage results from the operation both of action and inaction. at the same time. Taking, for example, the case of a city lot with a house thereon, I understand the ruling to involve the proposition that if the life-tenant should permit the building to rot to the ground, no forfeiture could be declared, because while the waste was permissive it was not at the same time voluntary. On the other hand, if the life-tenant should willfully tear down the house, a forfeiture could not result, because, *687though the waste was voluntary, it was not also permissive. But the result to the remainderman is the same, and the purpose of the statute is to protect him against both classes of misconduct. This is sought to be accomplished in each case in the same way, and by imposing a forfeiture as a penalty whether the waste be by acts of omission or commission.
This view is sustained by the recognition, in the Civil Code, § 3090, of the existence of the two classes of waste; by the separation of the two classes in the first sentence although they are united by the word “and.” The word “and” there is clearly separative and operates as a disjunctive. It has the same effect in the last sentence, which deals with the two classes of acts out of which the forfeiture may grow. This is made specially apparent by an examination of the punctuation. “For the want of such care, and the willful commission of such acts, he forfeits his interest to the remainderman.” The use of the comma before the word “and” makes the last clause parenthetical, and fully justifies a reading that “ for the want of such care he forfeits his interest, and likewise for the willful commission of acts tending to the permanent injury of the person entitled in remainder he forfeits his interest to the remainder. The first sentence prohibits waste by permissive acts, and also by voluntary acts. The penalty is adjusted to this double prohibition. It makes a forfeiture result from the want of such care, and als'o result from the willful commission of voluntary acts amounting to waste. Of course, forfeiture will never result from slight acts of waste. This is clearly involved in the language of the section. The penalty is imposed for such serious acts as tend to the permanent injury of the person in remainder, or to that class of negligence which fails to preserve and protect the corpus. But when by action or inaction the character, quality, or value of the property is being destroyed, the wrong-doer must suffer the penalty of a forfeiture. Nor can he complain, for it is brought about by his own disregard of the rights of the one who is to come after. Nor will it do to say that the remainderman has a remedy by injunction to stay waste, or for damages for waste already committed. The remain- ' derman is frequently so far removed as not to know what is being done with the property. Injunction could not restore what had been destroyed. Damages might not be recoverable out of an *688insolvent life-tenant. The adequate means by which the law secures the rights of the one and the performance of duty by the-other is the declaration in advance that a forfeiture shall result-from these serious transgressions. And while forfeitures are not favored, they are not so far disfavored as to be unenforceable in a case expressly provided for by law. In these views I am authorized to state that Justice Fish concurs.