arrears of annuity: when apportionable at common law: deed, the rent is apportionable (o). Yet, in equity, if the lease, or an agreement for it, be in writing, and under such circumstances that though not made strictly pursuant to the power, it may be enforced by the tenant, the statute will not apply, and the executor will have no right to an apportionment (p). Executors shall have a writ of debt for the arrearages of an annuity incurred in the lifetime of the testator (q): but (unless the stat. 4 Wm. IV. c. 22, can be applied) the arrears so recoverable must not be calculated beyond the last day of payment which occurred before the annuitant's death: for annuities are not in their nature apportionable either in law or in equity (r). An exception to this general rule may be found in the instances of annuities for the maintenance of infants; for equity will decree an apportionment of such annuities up to the day of their deaths; because it would be difficult for them to find credit for necessaries, if the payment depended on their living to the end of the quarter (s). Another exception has been introduced in the case of a married woman living separate from her husband (t); an exception supported by the necessity of the case, and the consequent presumption of intention (u); and therefore not extending to an annuity for the separate use of a married woman living with her husband and maintained by him (x). On the principle of the rule in the cases of infants and married (0) Ex parte Smyth, 1 Swanst. 337. Clarkson v. Lord Scarborough, ibid. 354, n. (a). (p) See Mr. Swanston's note (a) to Ex parte Smyth, 1 Swanst. 357. (9) Bro. Annuity, pl. 46. Fitz. N. B. 120, (L.) 9th edition. Andrew Ognel's case, 4 Co. 49 a. 49 b. (r) Pearley v. Smith, 3 Atk. 261. Howell v. Hanforth, 2 W. Black. 1016. Reg. v. The Lords of the Treasury, 16 Q. B. 357. (s) Howell v. Hanforth, 2 W. Black. 1017, in the judgment of De Grey, C. J. Hay v. Palmer, 2 P. Wms. 501. Rhenish v. Martin, A.D. 1746, MS. case in Mr. Swanston's note to Ex parte Smyth, 1 Swanst. 349. (t) Howell v. Hanforth, 2 W. Black. 1016. (u) See Mr. Swanston's note, ubi supra. (x) Anderson v. Dwyer, 1 Scho. & Lefr. 301. women who have no other support, it was decided that the income of a fund belonging to a charitable corporation, having for its object the support, relief, and maintenance of a master and five poor persons, was apportionable between the executors of a deceased master and his successor (y). An annuity payable quarterly, secured by the bond of a testator, whose Will charged his real, in aid of his personal estate, having been, under an order of the Court of Chancery, directed to be paid half-yearly at Midsummer and Christmas, and the annuitant having died between Lady-day and Midsummer, her representative was declared entitled to the arrears due at Lady-day (2). It was held, before the passing of the stat. 4 Wm. IV. dividends not apportionable c. 22, that if the testator was entitled to the dividends of at common stock in the public funds for his life, and he died between law: the two days when they are due, his executors have no claim to any apportionment, but the whole half-year's dividend shall be paid to him in reversion (a). case of tenant for life dying It may here be observed, that though, (as it has already been shown) (b), in the case of rent, it is not due till midnight of the rent-day; yet, in the case of dividends, the person come due. entitled may receive them, on application to the Bank, at any time on the day on which they become due: And consequently, if the tenant for life of stock dies on the day on which a half-year's dividends become due, they belong to his personal estate (c). a Railway Company, under the (c) Paton v. Sheppard, 10 Sim. Interest may be appor tioned: land-tax and quit-rent, &c. : dividends of money directed to be laid out in land: With respect to interest-interest being due de die in diem is not one entire thing, but an aggregate of many distinct things: It is obvious, therefore, that the representatives of a party dying before the day at which interest was usually payable, would be entitled to interest up to the time of the testator's death (d). Nor is the principle varied by reason that the money, in respect of which the interest is claimed, is secured on mortgage (e), or by a bond, conditioned expressly for half-yearly payments (ƒ). So where a sum of money, which it was covenanted in marriage articles should be invested in land, had been lent on mortgage, at the death of the person entitled to an estate tail in the land, the interest was apportioned in favour of his administrator (g). A point was raised before Sir Wm. Grant, whether a tenant for life having died in the middle of the year, the landtax, quit-rents, and other charges, should be borne entirely by the estate of the remainder-man, having actually become due after the death of tenant for life; or whether there should be an apportionment by an equitable construction of the statute: But the Master of the Rolls decided, that the statute of Geo. II. had no application to the case; and that the remainder-man was bound to pay the whole (h). The constant usage has been, where the money is directed to be laid out in land upon any settlement, and in the mean time invested in government securities, that the entire halfyear's dividend shall be paid to him in reversion, notwithstanding the tenant for life died in the middle of the halfyear, and shall not be apportioned by the stat. of 11 Geo. II. c. 19 (i). (d) See Mr. Swanston's note, 1 Swanst. 349, and Mr. Fraser's to Clun's case, 10 Co. 128, a. (e) Wilson v. Harman, 2 Ves. Sen. 673. (ƒ) Banner v. Lowe, 13 Ves. 135. (g) Edwards v. Countess of Warwick, 2 P. Wms. 176. S. C. 1 Bro. P. C. 207, Toml. edit. (h) Sutton v. Chaplin, 10 Ves. 66. (i) Sherrard v. Sherrard, 3 Atk. 503. Wilson v. Harman, 2 Ves. Sen. 672. S. C. Ambl. 279. See also Rashleigh v. Master, 3 Bro. C. C. 99. Ante, p. 747, note (a). In case of apportionment within the statute of 11 Geo. II., it is expressly directed by the Act, that the executor shall recover from the under-tenant a proportion of the rent, "according to the time" the tenant for life lived: And by the stat. 4 Wm. IV. c. 22, the apportionment is to be "according to the time which shall have elapsed from the commencement or last period of payment thereof respectively." And in the cases above mentioned, where, without reference to the statute, it has been held that the executors of a tenant in tail, or an incumbent, are entitled to a proportionate part of the rent or composition received after his death by the remainder-man or successor, it has also been held, that as the foundation of these decisions is, that the money is understood as paid to the use of the person from whom the enjoyment is derived, so the principle of apportionment is time; the total payment being distributed in proportion to the respective periods of enjoyment (k). The case of Williams v. Powell (1), indeed, has been regarded as an authority to show, that in the case of a composition for tithes, value, and not time, should be the principle: But Sir Thomas Plumer, in his judgment in Aynsley v. Wordsworth, observed, that Williams v. Powell did not appear to him to determine the general question; and certainly that decision, if intended to do so, may be considered as overruled, or at least, not adopted, in equity (m). If rent-charge be granted to a man per auter vie, and the grantee die, living cestui que vie, the right to the rent-charge vests in his executors and administrators under the statute 29 Car. II. c. 3, s. 15 (n). whether the apportionment shall be according to time or value. A rent-charge shall go to pur auter vie executors. If the lord of a manor admit a copyholder, whereupon a Copyhold fine is set, and the lord die before the fine be paid, it will fines, &c. (k) Aynsley v. Wordsworth, 2 Ves. & Beam. 331: and see Mr. Swanston's note, 1 Swanst. 348. (7) 10 East, 269. (m) See Mr. Swanston's note, 1 Swanst. 349. See also Oldham v. Hubbard, 2 Y. & Coll. C. C. 209. (n) Bearpark v. Hutchinson, 7 Money col lected on briefs for charity. damages recovered by trustees during a tenancy for life, belong to the executor of the tenant, inheritance. belong to his executors, who may bring an assumpsit or debt for it (o): for it is a fruit fallen, and shall not go with the inheritance. So also of reliefs and heriots (p). A copyhold estate entailed, consisting principally of a house, having been burnt down, a sum of money was collected on briefs, towards the rebuilding, and paid, by the trustees of the charity, into the hands of the guardian of tenant in tail, who was an infant, and died under age, without it's having been so applied: a question arose between the personal representatives of the infant, and those entitled to the estate under the settlement: and it was held that the money should go to the latter; but that allowance should be made to the former for the amount of the interest of the money from the time it was paid to the guardian, to the death of the infant (q). In Noble v. Cass (r), a testatrix devised to trustees and their heirs, upon trust for her daughter during her life; and after her decease on trust for her niece, for life; and after the decease of her niece on trust for the children of the and not to the niece in fee: The testatrix had granted a lease of the premises devised for a term still subsisting: After the death of the daughter, and during the lifetime of the niece, the trustees brought an action against the lessee for a breach of the covenants of that lease, by reason of dilapidations, and recovered 500l. damages: Afterwards the niece died: And it was held by Sir L. Shadwell, V. C., that the sum so recovered belonged to her administrator. In the case of a sole corporation, as a bishop, parson, vicar, master of an hospital, &c., no chose in action can go in succession; for the successors shall no more have them than the heirs of a private man; since succession in a body (0) Shuttleworth v. Garnet, 3 Lev. 261, 262. S. C. Carth. 90. 1 Show. 35. 3 Mod. 239. Comb. 151. (P) Andrew Ognel's case, 4 Co. 49, b. Co. Lit. 47, b. 83, a. b. 162, (r) 2 Sim. 343. |