to apportionment of annuities and income for life, see p. *1058, American note.

And executors may maintain an action for arrearages of income accruing in the lifetime of the testator. Johnson v. Bridgewater Iron Manufacturing Co., 14 Gray 274. The interest of a certain sum of money payable yearly is apportionable. Sweigert v. Berks, 8 Serg. & R. 299. So, interest on railway bonds payable half yearly. Will of Earp, 28 Pa. St. 368. So, dividends given for the maintenance of the tenant for life. Rutledge v. Rutledge, 1 Harp. Ch. 65.

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But the Massachusetts statute making an annuity or the income of a fund given for life apportionable does not apply to dividends from the profits of the business of incorporated companies. Foote, Appellant, 22 Pick. 299; Granger v. Bassett, 98 Mass. 462. And as between testator's own general estate and a legatee to whom he had bequeathed the income of certain stock the latter will take the whole dividend declared after testator's death. gent v. Sargent, 103 Mass. 297. Dividends declared before the life tenant's death belong to his estate, though payable in future and not paid at the time of his death. Brundage v. Brundage, 60 N. Y. 544. So, in general, dividend's earned during the lifetime of the life tenant, but not declared until after his death. Johnson v. Bridgewater Iron Manufacturing Co., 14 Gray 274. Rent is apportionable, in Alabama. Price v. Pickett, 21 Ala. 741. In New York, the statute apportions rent accruing to a life tenant at his death on leases made by him, New York, 1 R. S. p. 747, § 16, 22; but this does not apply to rents accrued at the death of the devisee for life on a lease made by the testator in his lifetime. Stillwell v. Doughty, 3 Bradf. 359. In Indiana, where one takes by devise a life estate in land, subject to an existing lease

which was made by the testator, and dies before any rent becomes due, no part of the rent for the term is payable to the life tenant's administrator, but goes to the reversioner. Watson v. Penn, 108 Ind. 21.

Rents. The executor is the proper party to maintain a suit for rents which accrued to the testator during his lifetime, McDowell v. Hendrix, 67 Ind. 513; for they are assets of the estate and go to the representative. Ball v. First National Bank, 80 Ky. 501; Bloodworth v. Stevens, 51 Miss. 475; Foltz v. Prouse, 17 Ill. 487; Sohier v. Eldredge, 103 Mass. 345; Welles v. Cowles, 4 Conn. 182. Such rents are personalty and pass to his personal representatives, and the right of action survives to them, although an action of ejectment begun against the tenant in the owner's lifetime survived to his heirs. Rhodes v. Crutchfield, 7 Lea 518. But rents accruing after the death of the lessor go to his heirs and devisees, Ball v. First National Bank, 80 Ky. 501; Bloodworth v. Stevens, 51 Miss. 475; Foltz v. Prouse, 17 Ill. 487; Fay v. Holloran, 35 Barb. 295; Van Rensselaer v. Platner, 2 Johns. Cas. 17; Kohler v. Knapp, 1 Bradf. 241; until the land is sold for payment of debts. Gibson v. Farley, 16 Mass. 283. But by statute they go to the personal representatives, in some states, when they are needed for the payment of debts. Curtis v. Sutter, 15 Cal. 259; Streeter v. Paton, 7 Mich. 341; Kline v. Moulton, 11 Mich. 370; Palmer v. Steiner, 68 Ala. 400. But until they are intercepted by the administrator for that purpose he cannot call on the heirs to account for rents collected by them, Gayle v. Johnson, 80 Ala. 388; especially where he has left them in undisturbed possession of the land and the personal property was ample for all debts. Howard v. Patrick, 38 Mich. 795. Where an administrator has statutory authority to rent the lands of

his intestate, he has the authority to bind himself to make repairs so as to render them tenantable. Vandegrift v. Abbott, 75 Ala. 487. Rents accruing after the owner's death do not pass into the hands of an executor as assets of the general personal estate, although the land from which they are derived is devised to him for certain purposes of the devise. Getzander v. Caylor, 38 Md. 283. Where a written lease is made by two joint owners of land, the right of action for rent survives on the death of one to the other, but upon the survivor's death it passes to his administrator, and not to the representatives of both. Fesmire v. Brock, 20 Ark. 20. In action for arrearages of rent all the executors should be joined as plaintiffs. Hunt . Kearney, Pen. 721.

Rent of lands devised. The rent of real estate devised belongs to the devisees from the date of the death of the testator, and not from the date of the probate of the will. Wright v. Williamson, 67 Me. 524. Even rents which accrue after a bill is filed for the construction of the will and to sell lands to pay debts belong to the devisees, and cannot be applied by the executor to pay debts. Smith v. Thomas, 14 Lea 324. But a recovery by the devisee as executrix of rent accruing after testator's death estops her executrix from afterward claiming it as devisee on a new trial. Clayton v. McKinney, 10 Heisk. 72. Rents accruing after their owner's death belong to the devisee, although payable in a certain amount of cotton, and cannot be claimed by the executor as emblements under the statute which gives the executor the crops on lands as assets. Huff v. Latimer, 33 S. C. 255. But in Georgia, the rent accruing during the year of testator's death goes, like emblements, to the residuary estate, and not to the devisee of the land. Parker v. Chestnutt, 80 Ga. 12.

Where by the terms of a will an executor is charged with the collection of all rents that might accrue from the testator's real estate, the executor is a proper party to an action to recover for rent becoming due after testator's death. McDowell v. Hendrix, 71 Ind. 286.

And under a reservation of rents of land conveyed during the vendor's life and that of his wife his administrator is entitled to the rent after his death and before that of his wife. Logan v. Caldwell, 23 Mo. 372. But where the will gives the executor no right to collect rents, an administrator cum testamento annexo who succeeds him has no such right. Matter of Blow, 2 Connoly 360. Nor does a will giving children real estate, to be divided when the youngest shall be twenty-one, give the executor power to collect the rents, but the testamentary guardian. Matter of Blow, 32 N. Y. St. Rep. 290.

Account for rents collected. Payment of rent to an administrator by a former tenant who has accepted a lease from the administrator is no discharge as against the heir. Haslage v. Krugh, 25 Pa. St. 97. And an administrator collecting rents by consent is only the agent of the heirs, and cannot sue the tenant on his promise to pay. Stewart v. Smiley, 46 Ark. 373. He holds the rent for the heirs, and not the creditors, McCoy v. Scott, 2 Rawle 222; or to his own use if he is himself the heir. Estate of Schwartz, 14 Pa. St. 42. The administrator has no authority to take the rents and profits of the decedent's real estate, and he is liable to the heirs for rents collected, and not to the Probate Court upon accounting. McClead v. Davis, 83 Ind. 263; Lucy v. Lucy, 55 N. H. 9; Kimball v. Sumner, 62 Me. 309. So, if he collects and accounts to the heirs under an arrangement with the mortgagee in possession, who credits himself as against the heirs. Reynolds v. Canal

& Banking Co. 30 Ark. 520. So, although the executors have a power in trust to sell the lands. Campbell v. Johnson, 1 Sandf. Ch. 148. Until actual sale under it a power of sale does not affect the right of the heirs to the rents. Brooks v. Jackson, 125 Mass. 307.

But, on the other hand, it is held that when the executor assumes control and collects the rents or sells the land under a power of sale, he is liable on his bond as executor to account for such rents or proceeds. Dix v. Morris, 66 Mo. 514; Brooks v. Jackson, 125 Mass. 307. And on his application to sell the lands for the payment of debts the heirs may elect to charge him with rents already collected, as in his hands for that purpose. Goeppner v. Leitzelman, 98 Ill. 409. So, where an executor applied to the payment of legacies the rents of lands, devised subject to a power of sale in him to pay the legacies, the rents collected are properly included in his account. Matter of Boyd, 4 Redf. 154. But he must account for what he has actually received, e. g., for salt paid him as rent, although exceeding the value of the premises. Kellar v. Beelor, 5 Mon. 577. If he has collected the rents and applied them to the use of the estate, they may be set off by the heir in an action on a note made by him to the executor for other property purchased. Hendrix v. Hendrix, 65 Ind. 329. On the other hand, if he has collected and applied the rents by sufferance or neglect of a mortgagee, whose mortgage contained a power to collect the rents and apply them on the mortgage, of which the administrator was ignorant, he will not be individually liable to the mortgagee. Simmons v. Priest, 10 Mo. Ap. 590. But an administrator's failure to pay rents to the heirs as he receives them before any direction of the Probate Court is not a breach of

his bond for which his sureties are liable. Choate v. Jacobs, 136 Mass. 297.

The word "rents" in the covenants of the statutory bond of an administrator does not apply to rents on leases made by the administrator after the death of the intestate, but to those rents which pass at the death of the intestate to his personal representatives. Wilson v. Unselt, 12 Bush 215. The executor is not liable to a devisee as creditor for rents which the executor suffered him and other devisees to collect before the estate proved insolvent. Smith v. Smith, 79 N. C. 455. On the other hand, if the administrator who is also an heir occupies the real estate without charging himself with the rent and has settled no account, it will not bar his petition for the sale of the land to pay debts. Palmer v. Palmer, 13 Gray 328. An executor is liable to account as for assets of the estate, for the rent of the homestead occupied by him under an agreement with his co-executor for a certain rent. Tichenor . Tichenor, 16 Stew. (N. J.) 163. So, in Louisiana, if an administrator makes no effort to lease the plantation under his administration, but cultivates himself, he is liable for the rental value. Succession of Sparrow, 39 La. An. 696. But if an executor acts in good faith in fixing rents, he will not be liable for more than he receives. Klein v. French, 57 Miss. 662.

Where the widow, after becoming administratrix, marries again, her husband, who succeeds in the administration, is not chargeable with the mansion house occupied by them before assignment of dower, but is liable for twothirds of the rent of the other lands. Trimble v. James, 40 Ark. 393. So, the widow is entitled to the rents of the farm attached to the mansion house, Mobley v. Andrews, 55 Ark. 222; but the Probate Court cannot adjudicate a claim of her