By death of II Geo. II. c. 19. The tenant's estate may also come to an end by his death. Until the year 1738, lessees from a tenant for life whose leases were put an end to by his death were not bound to pay any rent accrued due between the last day when the rent fell due and the date of the death of the tenant for life. This rule was founded on the Common Law doctrine that an entire contract cannot be apportioned, and that under a lease with a periodical reservation of rent, the contract for the payment of each portion is distinct and entire (p). Rent is not due until the last day fixed for payment, because it is to be rendered out of the issues and profits of the land (q), and differs in this respect from interest, which accrues from day to day. From this it followed that on the determination of a lease by the death of the lessor before the day appointed for the payment of the rent, the event on the completion of which that payment was stipulated (namely, the occupation of the lands during the period specified) never occurring, no rent became payable at law, nor would the Courts of Equity afford any assistance (r). This state of things was partly remedied by the II Geo. II., c. 19, which enacts (s) that where any tenant for life shall happen to die before or on the day on which any rent was reserved or made payable, upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, the executors or administrators of such tenant for life shall, and may, recover of and from such under-tenant or under-tenants of such lands, tenements, and hereditaments-if such tenant for life shall die on the day on which the same was made payable, the whole of or if before such day, then a proportion of such rent, according to the time such (p) 1 Swan, 338. (q) Clun's Case, 10 Rep. 1272. (r) Jenner v. Morgan, 1 P. Wms. 392. tenant for life lived, of the last year or quarter of a year or other time in which the said rent was growing due as aforesaid, making all just allowances, or a proportionate part thereof, respectively. This act included the case of a lease made by a tenant for life, professedly under a power given to him for that purpose, but determined by his death from not having been exercised in conformity with his power (t); but it did not apply to cases where a tenant for life had made a lease which was binding on the remainder-man (u), and which did not therefore come to an end on the death of the tenant for life. In that case, the under-tenant had to pay his rent, on the day next fixed for its payment, to the remainder-man or reversioner, because his obligation to do so was incident to the reversion, but no part of it could be claimed by the representatives of the tenant for life. In order to remedy this, the 4 & 5 Wm. IV., c. 22 (v), pro- 4 & 5 Wm. IV. vides that, from and after the passing of the Act, all ©. 22. rents service reserved on any lease shall be apportioned so and in such manner that on the death of any person interested in any such rents, or on the determination by any other means whatever of the interest of any such person, he or she, and his or her executors, administrators, or assigns shall be entitled to a proportion of such rents, according to the time which shall have elapsed from the commencement or last period of payment thereof (as the case may be), including the day of the death of such person or of the determination of his or her interest, all just allowances being made; and that every such person, his or her executors, administrators, and assigns, shall have such and the same remedies at law and in equity for recovering such apportioned parts of the said rents as he, she, or they would have had for recovering and (t) Ex parte Smyth, 1 Swan, 337; Clarkson v. Scarborough, ib. 354n. (u) See Duppa v. Mayo, 1 Wms. Saunders, 380, 455; Mills v. Trumper, L. R. 4 Ch. 320. (v) S. 2. Apportion ment obtaining such entire rents if entitled thereto; but so that persons liable to pay rents reserved by any lease or demise, and the lands, tenements, and hereditaments comprised therein, shall not be resorted to for such apportioned parts specifically as aforesaid, but the entire rent of which such portions shall form part shall be received and recovered by the person or persons who, if the Act had not been passed, would have been entitled to such entire rents: and such portion shall be recoverable from such person or persons by the persons entitled to the same under the Act, in any action or suit at law or in equity; but the Act (w) is not to apply to cases where it has been expressly stipulated that no apportionment shall be made. This Act applies to all cases where either the lease reserving the rent or the instrument creating the life estate has been executed since the passing of the Act (x). The Act of William the Fourth had re ference to leases in writing only (y), and since the Act of George the Second only applied to leases which were put an end to by the death of the tenant for life, the rent reserved by a parol lease not determined by the tenant's death was not apportionable (z). Moreover, the Act did not include tithes. These omissions have been supplied by the Apportionment Act, 1870 (a), which enacts that (b) after the passing of the Act (c) all rents and other periodical payments in the nature of 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 (w) S. 3. (x) Lock v. De Burgh, 4 De G. & Sm. 470; Plummer v. Whiteley, John. 585; Llewellyn v. Rous, L. R. 2 Eq. 27. (y) Re Markby, 4 My. & C. 484. (2) Mills v. Trumper, L. R. 4 Ch. 320. (a) 33 & 34 Vict. c. 35. (b) S. 2. (c) 1st August 1870. apportionable in respect of time accordingly; and (d) that in the construction of the Act, the word "rent shall include rent service, rent charge, and rent seck, and also all tithes and periodical payments or renderings in lieu of, or in the nature of, rent or tithe. This Act applies to all instruments, whether coming into operation before or not until after the passing of the Act (e). We conclude this chapter by remarking that on the Emblements. death of a tenant for life whose estate is determined by his death, his executors or administrators are entitled to emblements, the 14 & 15 Vict., c. 25, only applying to cases where terms of years are determined by the death of a lessor who is tenant for life. CHAPTER V. Different kind of estates tail. General. OF AN ESTATE TAIL. WE come next to the consideration of freehold estates of inheritance, and will take first estates in fee tail, or, as they are commonly called, Estates Tail. We spoke of estates tail generally, in our introduction, as being those estates which are given to a man and the heirs of his (a) body; but we must now point out that there are various classes into which estates tail may be divided. Thus, such an estate may be "general," that is, given to a man and the heirs of his body generally; or it may be "special," that is, given to a man and the heirs of his body by some specified person. Again, an estate tail, whether general or special, may be given to a man and his sons exclusively, or to him and his daughters exclusively; whence we get the four sub-divisions of estates tail male general, estates tail female general, estates tail Tail male and male special, and estates tail female special. The Tail male and tail female general. tail female special. course of descent of an estate tail general is to the first tenant's eldest son, and such son's eldest sons and grandsons in succession. If the eldest son leaves no issue, the estate goes to the second and other sons in succession, and their issue, according to the same rule. If there are no sons, or if their issue fails, the daughters take the estate, but in equal shares, and are succeeded by their eldest or other sons and their issue, in a course of primogeniture. The same rule applies (a) It is to be understood that the words "man" and "his" when used with reference to estates include females except where otherwise stated. |