4 & 5 Will. 4, c. 22, s. 2. Determination of interest under this section. company are apportionable under this act. But a single sum of money, to be divided among the shareholders, is not so apportionable. (Hartley v. Allen, 27 L. J., Ch. 621; 6 W. R. 407.) For the purpose of apportionment, a dividend is to be taken as payable on the day on which it is actually payable, and not on the last day of the period during which it was earned. (Ib.) Dividends declared by joint stock companies subject to the Companies Clauses Consolidation Act are not within this act. But in a company carried on under a deed of settlement and bye-laws, directing that the profits should be divided half-yearly, such dividends to be paid in two specified months; it was held, that such dividends were apportionable under the act with reference to the days on which they were made payable. (Re Maxwell's Trusts, 1 H. & M. 610.) (c) A testator devised his real estates in strict settlement, with power for his trustees during the minority of any tenant for life to receive the rents and thereout apply an annual sum towards the maintenance of such minor, and invest and accumulate the surplus, and stand possessed of the investments upon certain trusts. It was held, that on a tenant for life attaining twentyone the rents of the real estate and the dividends on the investments were apportionable. (Shipperdson v. Tower, 8 Jur. 485; approved in Clive v. Clive, L. R., 7 Ch. 433.) A. by will directed that, for twenty-one years next after his death, bis trustees should receive and accumulate the rents and profits of his real estate, and apply them towards payment of his debts and legacies, and, subject to that term, he gave the beneficial interest in the income of his estate to B. for life: it was held, under this act, that the rent which fell due after the expiration of the twenty-one years must be apportioned between those beneficially interested in the accumulations and the tenant for life, who was entitled on the expiration of the term. (St. Aubyn v. St. Aubyn, 1 Dr. & Sm. 611.) This decision in substance came to this, that wherever a person is in receipt of rents and profits and any change takes place whereby that person's interest ceases or is altered, and another interest begins, or a change of interest takes place, then an apportionment must be made. (Per Bacon, V.-C., Donaldson v. Donaldson, L. R., 10 Eq. 639.) Where a testator gave the residue of his real and personal estate to trustees upon trust to receive and accumulate the rents and profits till his nephew should attain twenty-one, when he was to be put into possession of the estate for life, it was held that there must be an apportionment of the rents up to the period of the tenant for life attaining twenty-one. (Wheeler v. Tootel, L. R., 3 Eq. 571.) A testator, who died in May, 1835, directed his executors to apply a competent part of the interest of a fund towards the maintenance and education of the testator's son during his minority, and to accumulate the rest; and, after his attaining twenty-one, to apply a moiety of the dividends for his support till he attained twenty-five, and to transfer the fund at twenty-five, with a gift over if he died between twenty-one and twenty-five. The son attained twenty-one between the periods of payment of the half-yearly dividends. It was held, that there should be no apportionment, and that he was entitled to the whole half-yearly dividends received after he came of age. (Campbell v. Campbell, 7 Beav. 482.) But where a settlor assigned securities to trustees upon trust after his own death during the minority of A. to pay part of the income for the maintenance of A.; and when A. attained twenty-one and thenceforth until he should attain thirty, to pay to A. out of the income an annual sum not exceeding 5,000l., and accumulate the surplus, and hold the accumulations upon the trusts thereinafter declared of the fund: and when A. should have attained thirty, to hold the funds and the annual produce thereof upon trust to pay unto and permit A. and his assigns to receive the whole of the dividends, &c., during his life, with limitations over. It was held, that upon A. attaining thirty, the current dividends were apportionable. (Donaldson v. Donaldson, L. R., 10 Eq. 635.) It was said by Coleridge, J., that the act 4 & 5 Will. 4, c. 22, cannot apply to a person who has chosen to come in and determine his right to receive rents. (Oldershaw v. Holt, 12 Ad. & Ell. 590.) A., in 1836, let 4 & 5 Will. 4, certain land to B. under a building agreement; the rent was to commence c. 22, s. 2. at Christmas, 1838, and A. was to have a right of re-entry in case of nonperformance on the part of B. A. availed himself of this right of re-entry, and brought an ejectment, laying the demise on the 1st January, 1839. In September, 1838, he had re-let the land to C. at a rent to commence in 1840, which was equivalent in amount to that provided for by the first agreement. In an action by A. for breaking the first agreement, it was held, that the demise in the ejectment was to be taken as the date of the re-entry by A., and that he was not entitled to that portion of the rent between the previous Christmas and that day, under the provisions of this statute. (Oldershaw v. Holt, 12 Ad. & Ell. 590; see Packer v. Gibbins, 1 Q. B. 421.) his death. This statute applies to cases in which the interest of the person interested No apportionin such rents and payments is terminated by his death, or by the death of ment between real and personal another person; but does not apply to the case of a tenant in fee, or provide representatives of for apportionment of rent between the real and personal representative of person whose such person whose interest is not terminated at his death. (Browne v. interest does not Amyott, 3 Hare, 173; 13 L. J. (N. S.) Ch. 232.) It was urged against determine at this construction of the act, that one consequence would be, that where tenant in fee simple devised to one as tenant for life, the devisee for life would take the entire periodical rent due at the first day of payment after the commencement of his estate, and his proportionable share up to the day of the determination of his life interest. The law would operate in his favour both at the beginning and the end of his life estate. Wigram, V.-C., however, thought it was not an argument of any great force, upon the construction of the act, which did not affect to control the power of the tenant in fee to dispose of his estate, as between his devisees or real and personal representatives, as he may think proper. (Browne v. Amyott, 3 Hare, 173, see p. 183. See Beer v. Beer, 21 L. J., C. P. 124; 16 Jur. 223.) Devise in trust for one for life, remainder for his first and other sons in tail, remainder for testator's own right heirs. The devisee for life proved to be heir at law of the testator, and died intestate and without leaving issue: it was held, that notwithstanding the interposition of an estate tail which might have arisen and prevented the remainder in fee from vesting absolutely, the death of the devisee was not a determination of his interest within the meaning of this act, and therefore the rents were not apportionable between his heir and his personal representative. (Re Clulow, 3 Kay & J. 689; 26 L. J., Ch. 513.) Where it can be predicated that the interest mentioned in the 2nd section has been determined, the rents and other payments there mentioned shall be apportioned; but where this cannot be predicated, the contest being between the heir and the executor, the heir shall take the whole, and there shall be no apportionment. (lb.) EXCEPTION. 3. Provided always, and be it enacted, that the provisions Act not to apply herein contained shall not apply to any case in which it shall to certain cases. be expressly stipulated that no apportionment shall take place, or to annual sums made payable in policies of assurance of any description (d). (d) This statute requires, in order to exclude apportionment, either an express direction that there shall be none, or language so express in the terms of the gift that apportionment is clearly impossible consistently with it. Inference from the whole tenor and context of the will is not sufficient to exclude the operation of the statute. (Tyrrell v. Clark, 2 Drew. 86.) As to the apportionment of rent-service and of conditions of re-entry in certain cases, see note to 22 & 23 Vict. c. 35, s. 3 (post). And as to the apportionment of rent-charges, see the note to 22 & 23 Vict. c. 35, s. 10 (post). 4 & 5 Will. 4, c. 22, s. 3. Apportionment between tenant for life and remainderman. No apportionment of income will be made as between tenant for life and remainderman with reference to the variation in the price of stock, arising from the distance of a period of sale or investment from the last payment of dividend. (Scholefield v. Redfern, 2 Dr. & Sm. 173; Freman v. Whitbread, L. R., 1 Eq. 266.) The periodical payments of an annuity for which a testator was liable, were held payable by the tenant for life and remainderman under his will in proportion to the values of their respective interests in the estate; the property have been unproductive for some years. (Yates v. Yates, 28 Beav. 637.) See further as to questions between tenants for life and remaindermen, 1 Seton, 217 et seq., 3rd ed.; Maclaren v. Stainton, L. R., 4 Eq. 448; 11 Eq. 382. And as to the liability of tenants for life and remaindermen to contribute to renewals of leases and admissions to copyholds, sce 1 Seton, 518, 3rd ed.; Bradford v. Brownjohn, 16 W. R. 1178. APPORTIONMENT OF RENTS AND PERIODICAL 33 & 34 VICTORIA, C. 35. An Act for the better Apportionment of Rents and other WHEREAS rents and some other periodical payments are not at common law apportionable (like interest on money lent) in respect of time, and for remedy of some of the mischiefs and inconveniences thereby arising divers statutes have been passed in the eleventh year of the reign of his late Majesty King George the Second (chapter nineteen), and in the session of Parliament holden in the fourth and fifth years of his late Majesty King William the Fourth (chapter twenty-two), and in the session of Parliament held in the sixth and seventh years of his late Majesty King William the Fourth (chapter seventyone), and in the session of Parliament held in the fourteenth and fifteenth years of her present Majesty (chapter twentyfive), and in the session of Parliament held in the twenty-third and twenty-fourth years of her present Majesty (chapter one hundred and fifty-four): And whereas it is expedient to make provision for the remedy of all such mischiefs and inconveniences : Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 33 & 34 Vict. c. 35, s. 1. 1. This act may be cited for all purposes as "The Appor- Short title. tionment Act, 1870." periodical pay and be apportion 2. From and after the passing of this act all rents, annui- Rents and ties, dividends, and other periodical payments in the nature of ments shall accrue income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly (a). from day to day able in respect of time. (a) A testator gave his residuary personal estate, with the accumulations Interest deterthereof, to trustees in trust for his two granddaughters, their shares to be mining on vested at twenty-one or marriage, the income to be applied for their marriage. benefit during minority, and the surplus accumulated. He directed that in case either granddaughter married under twenty-one, the trustees should settle her share for her life for her separate use, with remainder to her children. Both granddaughters married under twenty-one, one in 1867, the other in November, 1870, and in both cases the income of the share was apportioned up to the time of the marriage. (Clive v. Clive, L. R., 7 Ch. 433, see ante, p. 552.) 33 & 34 Vict. c. 35, s. 2. Payment under order of court. Payments out of profits of partnership. Apportionment between vendor and purchaser. Apportioned part of rent, &c. shall be payable when the next entire portion shall have become due. Persons shall have the same remedies apportioned parts for recovering as for entire portions. Where a sum of stock to which A. was entitled for life, with remainder over, was paid into court in 1849, and in 1855 an order of court was made under which A. became entitled to an annuity of 1007. a year out of the dividends it was held, on A.'s death, that her administrator was entitled under this act to an apportioned part of the annuity. (Re Thacker's Trusts, 21 W. R. 285, see ante, p. 549.) The payments mentioned in sect. 2 must run at fixed times from some antecedent obligation, and must be in the nature of income, that is to say, coming in from some kind of investment. A testator, as to his share and interest in the L. Company, bequeathed the dividends and income thereof to A. for life, and after his death he gave the said share and interest to his daughters, and his residue upon other trusts. The company was a private trading partnership, regulated by a deed of partnership, under which the accounts were made up in the January in each year, the profits of the previous year ascertained, and the accounts settled and signed by all the partners. The managing partner then decided what dividend should be paid to the partners, and such dividend was paid by instalments in the next few months: held, that the payments of dividend did not come within the words "dividends and other periodical payments" in sect. 2; that the company was not a "trading or other public company" within sect. 5, and that there was no apportionment under this act between A. and the residuary legatees. (Jones v. Ogle, L. R., 8 Ch. 192.) Lord Selborne doubted whether the act could affect the construction of a will previously made. (lb.) Land, subject to a head-rent, was sold by the Landed Estates Court in Ireland, and the purchase-money lodged in court. After the purchase, a half-year's rent became due, and the purchaser claimed to be repaid rent from the last gale-day until the purchase, on the ground that under this act rent accrues de die in diem: it was held, that the rent was not by this act made a charge on the estate until the gale-day, and that the purchaser's contract really was to get the estate subject to all future liabilities, which included the whole rent, payable on the next gale-day. (Re Keillor's Estate, I. R., 6 Eq. 329.) Mr. Dart is of opinion that the act 4 & 5 Will. 4, c. 22, did not apply to the case of a sale. (V. & P. 745, 4th ed.) And it seems that where a conveyance is executed during the continuance of a tenancy, the purchaser thereupon becomes entitled to the accruing rents. (Flight v. Bentley, 7 Sim. 149; Flinn v. Calow, 1 Man. & Gr. 589.) Where on a sale of leaseholds the conditions were that the purchaser should have possession on a certain day, "all outgoings up to that day being cleared by the vendors:" it was held, that the vendors were bound to pay an apportioned part of the current rent up to the specified date. (Lawes v. Gibson, L. R., 1 Eq. 135.) 3. The apportioned part of any such rent, annuity, dividend, or other payment shall be payable or recoverable in the case of a continuing rent, annuity, or other such payment when the entire portion of which such apportioned part shall form part shall become due and payable, and not before, and in the case of a rent, annuity, or other such payment determined by reentry, death, or otherwise when the next entire portion of the same would have been payable if the same had not so determined, and not before. 4. All persons and their respective heirs, executors, administrators, and assigns, and also the executors, administrators, and assigns respectively of persons whose interests determine with their own deaths, shall have such or the same remedies at law and in equity for recovering such apportioned parts as aforesaid when payable (allowing proportionate parts of all just allowances) as they respectively would have had for re |