Stillwell v. Doughty

The Surrogate. The testator at the time of his decease, owned the premises, Ho. 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 363 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.