STILLWELL VS. DOUGHTY.

the representatives of Mrs. Stillwell. It has always been said that our act followed the English statute. Kent observes, (3 Comment. 471), "But the statute of 11 Geo. 2, c. 19, § 15, supplied the principle, that apportionment should be made of rent in respect to time in such cases, and that part of the statute has been re-enacted or adopted in this country," and he then refers to the New York R. S., and to the case of Green, executor of Osborne v. Osborne in error, 17, Serg. & Rawle, 171. The learned commentator in his 4th vol. p. 74, adopts the English rule broadly. "If the original estate determines by the death of the tenant for life before the day of payment of rent from the under-tenant, the personal representatives of the tenant for life, are entitled to recover from the under-tenant the whole or a proportional part of the rent in arrear."

Although in examining the question, Mrs. Stillwell may have to be looked on as a stranger tenant for life, yet, it may not be amiss to remember that she is the widow of the testator, and that if it were a question of dower, her right would attach not only to the day of her death, but she would even have the statute right, (1 R. S., 744, § 25) to bequeath any crop in the ground.

III. But, looking at her as mere tenant for life, it is to be remembered that certain legal liabilities which attach to such a beneficiary, continue to the death hour; namely, the keeping down of interest on assessments, mortgages, &c. Suppose a case of a widow tenant for life of a man who had a large store in Broadway at a high rent; let it be his only estate, and which he had leased for a term. His widow (tenant for life) depends on the rent to meet the bills she contracts for support, and she dies before a quarter day; can it be in the face of our statute, however limited may seem to be the wording, that a devisee, who never earned or owned the property, can take the whole quarter's rent and so leave the estate of the widow of the owner insolvent, and her creditors, who have in truth supported her through an

STILLWELL VS. DOUGHTY.

expectancy, without any payment. The widow had not the power to pay her way as she went, because her husband had made the rent payable only quarterly or half yearly.

It might be a question, as the lease in this case reserved rent to the testator, his executors, administrators, and assigns, and not to him and his heirs, whether the executors may not have rights in such lease (as to rent) after the death of the testator, which a devisee must respect, and in relation to which his estate may be subordinate?

THE SURROGATE.-The testator at the time of his decease, owned the premises, No. 15 Bowery, which were then under lease to Daniel Smyth. He gave to his wife during her life the clear nett income of all his real estate, with certain exceptions. The lease to Smyth reserved the rent to the testator, his executors, administrators, and assigns. The will was a disposition of the land so as to constitute the devisees, assigns of the testator, and to vest in them respectively, all the rights he possessed under the covenants of the lease, so far as the covenants were capable of assignment. The widow, after enjoying the income of this property, died before May quarter day, and the question is whether the rent can be apportioned so as to entitle her representatives to an amount equal to the proportion of the quarter which had expired at the time of her death. The Revised Statutes (1 R. S. p. 747, § 16, 22), provide that "when a tenant for life, who shall have demised any lands, shall die on or after the day when any rent became due and payable, his executors or administrators may recover from the under-tenant the whole rent due; if he die before the day when any rent is to become due, they may recover the proportion of rent which accrued before his death." This section applies only to cases where the demise is by the life-tenant, and it is not applicable therefore, to the present case. It is a re-enactment of the

STILLWELL VS. DOUGHTY.

statute, 11 Geo. 2. c. 19, § 15, which was passed to remedy the difficulty arising out of the common law doctrine, as to the apportionment of rent. Where the life tenant died before the rent reserved under a lease made by him fell due, the rent was lost both to his executor, and to the reversioner. The executor could not recover because the title to the land had failed, and the remainder-man could not recover because the rent did not accrue during the time when he had title. The rent could not be apportioned, and it was consequently entirely lost. The statute was passed to cure this evil, but it was intended to apply and does apply in terms only to leases determinable on the life of the tenant for life, (Ex-parte Smyth, 1 Swanston, 338, note; Woodfall Landlord & Tenant, p. 252.) There is no such difficulty to remedy in the present instance. The lease was made by the testator, and any party claiming under him, can recover the rent as it falls due under the lease. The covenant as to rent runs with the land and enures to the benefit of the testator's assigns, who can recover, if they can shew title at the time the rent becomes due and payable. The lessee cannot escape; it is not a question between him, and the representatives of the life-tenant, or the remainder man-but he is bound to pay in any event, the only controversy being whether he is bound to apportion the rent. The case is not, therefore, within the spirit of the statute, nor its letter, and it must be determined by the rule of the common law. I think there are no decisions inconsistent with this ruling. Green vs. Osborne, (17 Serg. & Rawle, 171), did not relate to rent, but to an annuity; and decided nothing more than that an annuity in lieu of dower could be apportioned. The statute 4 Wm. IV., c. 22, has made the English law conformable to what would seem to be equitable, by declaring that all rents, annuities and other payments shall be apportioned, but that provision has not been made in this State, and however reasonable it might seem to adopt it, that is for the legislature and not for the courts to determine. I am clearly of opinion that the rent cannot be apportioned where the demise has been made by the testator.

LAWRENCE US. EMBREE.

LAWRENCE VS. EMBREE.

In the Matter of The Estate of JANE LIVESAY, deceased.

GENERALLY, when no time of payment is named in a will, legacies are not due until the lapse of year from the death of the testator, and they do not begin to earn interest until they are due. The provisions of the Revised Statutes as to the payment of debts and legacies have not altered this rule, and a delay in the probate does not deprive the legatees of interest on their legacies after the expiration of a year from the testator's decease.

Annuities are considered as commencing to run at the testator's death, and the first payment as due at the end of the year. A bequest of the interest, dividends, or other income of a certain sum to be invested by the executors, does not begin to carry interest until the end of the year, at which time the investment ought to be made.

Where there is a gift for life of the income of the residue, without any direction to invest, the tenant for life is entitled to the income from the testator's death on such investments as were then made, or as were subsequently made within the year, together with interest on the amount not invested, valued as at the time of the testator's decease.

THE SURROGATE.-By the fifth clause of her will, the testatrix gave to her nephew and his wife and the survivor of them "the interest, dividends, or other income of two thousand five hundred dollars," for and during their joint lives, and the life of the survivor of them, and after their decease the principal sum to their children then living. There are numerous other bequests of life estates of the same character contained in the will, and the question arises whether the interest or income began to run on the decease of the testatrix. Generally, when no time of payment is named, legacies are not due until the lapse of a year from the death of the testator, and of course do not begin to earn interest until they become due. But annuities are considered as commencing from the death of the testator, and the first payment

LAWRENCE VS. EMBREE.

as due at the expiration of the year. (Gibson vs. Bott, 7 Vesey, 96-7; Fearns vs. Young, 9 Vesey, 553; Stamper vs. Pickering, 9 Sim., 176.) There may be some ground for applying the reason of this rule to the legacies of the interest and income of certain specified sums, but in examining the cases, I do not perceive that any distinction has been recognized between bequests of income and general legacies. This will contains a clause authorizing the executors to invest the trust moneys, "the interest whereof is payable during the life time of several of the before named legatees, and the principal to others upon their respective deaths, either in bonds and mortgages or in stocks," and there is no specified time when to make these investments, so that the general rule of allowing a year to make the investment would seem applicable. Taking the bequest and this provision together, it would amount to a legacy of $2,500 to the executors in trust to invest and pay the income for life to the first takers, and the principal, on their decease, to their children, and in such a case the sum given would not begin to earn interest until the expiration of the year.

By the twenty-sixth clause of the will, Anna Buckley and John B. Lawrence, sister and brother of the testatrix, are constituted residuary legatees; but by a codicil, the estate of the sister is cut down to "the interest, dividends, and other periodical income" of one half "during the residue of her natural life," and the remainder is given over to her descendants. There is no direction to convert and invest in this connection, and the tenant for life is entitled to the income from the death of the testator, not only on such investments as were then made in accordance with the duty of an executor as to making investments, but also on such as have been made within the year. If any amount remained uninvested, interest is to be allowed on the valuation of such portion of the residue, as of the time of the testator's decease. (Hewitt vs. Morris, 1 Turn. & Russ. 241; La Terriere vs. Bulwer, 2 Sim., 18; Douglass vs. Congreve, 1 Keen, 410; Williamson vs. Williamson, 6 Paige, 298).