and die before severance, the corn shall belong to B., and not to the executors of A. on the principle, that every man's donation is to be taken most strongly against him; and, therefore, it shall pass not only the land itself, but also the chattels which are incidental to it. (k) If A. seised in fee of land sow, and then convey it to B. for life, with remainder to C. for life, and B. die before the corn is reaped, C. shall have it, and not the executors of B., for B. had no property in the corn arising from his own charge and industry, but merely by A.'s donation of the land, to which the corn is appurtenant; and by force of the same donation, [206] by which B. had a right to the corn, C. is entitled to it after the death of B. (1) If A. seised in fee sow land, and give it to B. for life, remainder to C. for life, and they both die before severance, it shall go to A.; for when the force of the donation is spent, the property shall result to the donor. (m) If a disseisor of tenant for life sow the land, and such tenant die before severance, his executor, and neither the disseisor, nor the reversioner shall have the corn. (n) But trees shall not be regarded in favour of the executor of the tenant for life, any more than of any other executor, as emblements, or as distinct from the soil; for they are parcel of the inheritance, and are planted for the benefit of future generations. (0) Therefore, if such tenant plant oaks, or other timber trees, or trees not timber, or hedges, or bushes, they shall not go to his executor, but to him in remainder. (p) If, as we have seen, the tenant in fee make a lease excepting the trees, and afterwards grant the trees to the lessee, they are not reannexed to the inheritance, but the lessee has an absolute property in them, and they shall go to his executor. (9) (k) Gilb. L. of Ev. 247. (7) Gilb. L. of Ev. 247. Grantham v. Hawley, Hob. 132. Roll. Abr. 727. (m) Gilb. L. of Ev. 248. Grantham v. Hawley, Hob. 132. (n) 2 Bac. Abr. 64. Goulds. 143. (0) Gilb. L. of Ev. 242. 2 Bl. Com. 123. Co. Litt. 55 b. (p) Gilb. L. of Ev. 249. Com. Dig. Biens. G. 1. H. Harg. Co. Litt. 55 b. Lat. 270. (9) Com. Dig. Biens. H. 4. Co. 63 b. But if tenant by the curtesy, or in dower, or after possi[207] bility of issue extinct, cut down trees, they shall not go to the executor, but to the remainder-man, or reversioner. (r) So if A. tenant for life, with remainder to B. for life, cut down trees, they shall belong to him in reversion. (s) Yet, if there be a lessee for life, or years, without impeachment of waste, he has such an interest and property in timber trees, that, in case they are cut down in his lifetime, or during the term, they shall belong to his executor. (t) If the trees are thrown down by tempest in the lifetime of such lessee, or during the term, they shall go to his executor, and vest equally as if they had been severed by the act of the party. (u) But a lessee, though without impeachment of waste, has not an absolute property in the trees; for if they are not cut down in his lifetime, or during the term, his executor shall not have them, but they shall go to the lessor, as annexed to the freehold. (w) So, if A., tenant for life, without impeachment of waste, with power to cut trees, and to make leases for three lives, lease for three lives, excepting the trees, and die before they are cut, the trees are re-annexed, and shall not be severed by his executor. (x) [208] A tenant pur auter vie is considered by the law, in regard to emblements, in the same light as a tenant for his own life and therefore if a man be tenant for the life of another, and the cestui que vie die after the corn be sown, the tenant pur auter vie, and in case of his death, his executor shall have the emblements. (y) The advantage of emblements are also extended to the parochial clergy by the stat. 28 Hen. 8, c. 11. (~) The lessees of tenants for life at common law, on the death of the lessors, exercised the unreasonable privilege of (r) Com. Dig. Biens. H. 4 Co. 63. 11 Co. 82. (s) Com. Dig. Biens. H. Al. 81. (t) Com. Dig. Biens. H. Harg. Co. Litt. 220. Moore, 327. 11 Co. 82 b. (u) 11 Co. 84. 1 Roll. Rep. 183. (y) 2 Bl. Com. 123. (z) 2 Bl. Com. 123. Vide 1 Roll. Abr. 655. quitting the premises, and paying rent to nobody for the occupation of the land subsequent to the last quarter-day, or other day assigned for the payment of rent. For the representative of the tenant for life could maintain no action for the use and occupation, much less in case there were a lease; nor had the remainder-man such a right because the rent had not accrued due in his time. (a) Nor could equity relieve by apportioning it. (b) To remedy which hardship it is now enacted by stat. 11 Geo. 2, c. 19, s. 15, that the executors of tenant for life, on whose death any lease determined, shall [209] in an action on the case, recover of the lessee a rateable proportion of rent from the last day of payment to the death of such lessor. The provisions of this statute have, by an equitable construction, been extended also to the case of tenants in tail, where leases are determined by their deaths. (c) Doubts, however, having been entertained as to the application of the provisions of the act, to the extent contemplated by the legislature, a declaratory law was passed, 4 Wm. 4, c. 22, for the purpose of removing those doubts, and extending the apportionment to all rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description, made payable or coming due at fixed periods, under any instrument executed after the passing of the act, or will or testamentary instrument that should come into operation after the passing of the act. But as this act does not affect instruments or wills, executed, or in operation, before the passing of the act, the old law must be considered as in force, as respects all such instruments or wills, and it is therefore necessary to retain the following exposition of the law relating to the subject. Equity will not in general apportion dividends of stock; (d) (a) 2 Bl. Com. 124. 1 Fonbl. 2d edit. 384. Jenner v. Morgan, 1 P. Wms. 392. Paget v. Gee, Ambl. 199. (b) Jenner v. Morgan, 1 P. Wms. 392. Hay v. Palmer, 2 P. Wms. 502, Sed vide, Anon. Bunb. 294. (c) Paget v. Gee, Ambl. 198. Vernon v. Vernon, 2 Bro. Ch. Rep. 659. (d) Rashleigh v. Master, 3 Bro. Ch. Rep. 99. but where the money is laid out in a mortgage till a purchase can be made, the interest is capable of being apportioned (e), and the distinction seems to turn on this point, that the interest on a mortgage is in fact due from day to day, and, therefore, not properly an apportionment; whereas the dividends accruing from the public funds are made payable on certain days, and, consequently, cannot be apportioned. (ƒ) On the principle of this distinction, dividends of money directed to be laid out in land, and in the mean time to be invested in government securities, and the interest and dividends to be applied as the rents and profits would in case it were laid out in land, were held not to be [210] apportionable, though the tenant for life died in the middle of the half year. (g) And the decision was the same, where the money had been originally secured by mortgage, but by order of the court had been transferred on government securities. (h) But where, by a marriage settlement, maintenance for daughters was made payable half yearly at Lady-day and Michaelmas, and to continue until their portions should become payable, namely, at their age of eighteen, or marriage, the portions and maintenance to be raised out of the rents and profits of the estate, or by sale, mortgage, or lease of the premises, and one of the daughters attained the age of eighteen on the 16th of August, she was decreed to have maintenance pro rata from the last Lady-day to the time of her attaining that age. On the ground that the general intention of the settlement was clear, that maintenance should be paid during the whole interval of time from the commencement of the term till the portion should become due, that is to say half-yearly on the days above specified in (e) Edwards v. Countess of Warwick, 2 P. Wms. 176. (f) 1 Fonbl. 2d edit. 385. Hay v. Palmer, 2 P. Wms. 501 and 503, note 1. Now see 4 Wm. 4, c. 22. (g) Com. Dig. Chancery (4 N. N 5), Sherrard v. Sherrard, 3 Atk. 502. Wilson v. Harman, Ambl. 279. S. C. 2 Ves. 672, sed vide 3 Vin. Abr. 18, pl. 3. (h) Pearly v. Smith, 3 Atk. 260. every instance where it could happen, and where that could not be, it was a case not directly provided for by the settlement as to the time of payment, but within the general provision of the maintenance itself which was expressed to continue till the portions should become payable. (i) And even dividends of money in the funds directed to be applied to the maintenance of an infant, or secured by the husband as a separate provision for his wife, would perhaps be apportioned in equity; inasmuch as it would be difficult for them to find credit for necessaries, if the payment depended on their living to the end of the quarter. (k) And on this principle an apportionment of an annuity, being for the separate maintenance of a feme covert, has been allowed at law. (1) Yet if the quarterly payments were originally prospective payments by way of maintenance for the ensuing quarter, and not payable at the end of each quarter, in order to discharge the expences incurred in the three preceding months, that circumstance might make a difference. (m) If a lessee for life of a manor seise an estray, and die before the year and day are elapsed, it shall belong to his executor. (n) [211] In regard to heir-looms, I have already stated, that the strictness of the ancient rule has in later time been relaxed, as between the executor and the heir. (0) But it has been still more so, as between the executors of tenant for life, or in tail, and the reversioner. (p) Hence it has been adjudged, that a fire-engine set up for the benefit of a colliery by tenant for life, or in tail, shall be considered as his personal estate, and shall go to his executor, and not to the remainder-man. And indeed reasons of public convenience operate more strongly as between such par (i) Hay v. Palmer, 2 P. Wms, 501. (k) Vide 1 Fonbl. 2d edit. 386, and 2 Bl. Rep. 1017. (1) Howell v. Hanforth, 2 Bl. Rep. 1016. (m) Per De Grey, Ch. J., 2 Bl. Rep. 1017. (n) 11 Vin. Abr. 145. Moore, 11. (0) Supra, 198. (p) L. of Ni. Pr. 34. |