a case, wherever the reversion goes, whether to the original lessor, or his grantees or descendants, the accruing rent, from the rent day next antecedent to the death of the life tenant, follows without apportionment. If the estate of the life tenant terminates intermediate rent days, or before any rent has become due, the accruing rent becomes an incident of, and is annexed to, the estate of the reversioner. Whoever owns the reversion when the rent falls due is entitled to receive the whole sum, unless it is otherwise provided by contract. Rent in arrears is no part of the reversion. In any case such rents are recoverable by the personal representative of the life tenant

As it does not appear,

either from any alleged usage or from the terms of the agreement, that any part of the rent had matured or become payable at the death of the testator, or even at the death of the widow, it is not perceived how the position contended for can be maintained. . . . Rents accruing from, and issuing out of, real estate, are in the nature of chattels real, and cannot be assimilated to, or accurately described as, accounts, until they have accrued or become due. Until then they are annexed to the real estate and an incident of the reversion."

10. Kentucky.

In Ball v. First Nat. Bank (1882) 80 Ky. 501, the court stated the facts and its conclusion as follows: "The real estate devised to the appellants had been rented by the testator to certain tenants, who were required to pay the rent at the end of every month. He died on the 21st of April, 1878. His estate devised for that purpose being insufficient to pay his debts, his executor filed a petition in equity . . . for the purpose of settling the estate and selling the realty to pay the testator's indebtedness. The chancellor

[in the lower court] decreed that the rents which accrued prior to the testator's death, and those which accrued after the institution of the suit by the executor and before the day of

sale, belonged to the estate for the payment of debts; but that the rents which accrued after the testator's death, and before the institution of the executor's suit, belonged to the devisees and heirs, and that the rents accruing subsequent to the sale belonged to the several purchasers. Before and since the Revised Statutes, which are the same as the General Statutes on the subject, the common-law rule that rents accruing after the death of the owner, in fee of real estate, are not assets which vest in the personal representative, has been in force in this state, those statutes regulating the apportionment of rent between the personal representative and heir or devisee being regarded as merely declaratory of the common law; hence the judgment giving to the heirs and devisees the rents accruing after the testator's death, and before suit, was undoubtedly correct. The rent goes with the legal title; . . the purchaser, being in possession at the date of the confirmation of the sale, was entitled to the rents from that time. The legal title vested in the heirs or devisees on the death of the testator, and so remained until it was devested in pursuance of the decree, and they were therefore entitled to the possession and rents during that period, and, as a matter of course, the right of the purchasers to the rents does not attach until that of the heirs and devisees ceases. The purchaser is entitled to the rent from the date of confirmation, but not from the sale, because he acquires no right to the possession until the sale is confirmed."

"Rents accruing before the death of the testator vested in the executor as assets; but the rents accruing after the death of the testator and before the confirmation of the sale belonged to the heirs." Vance v. Vance (1903) 116 Ky. 520, 76 S. W. 370.

The language of the court in Kelly v. Pettus (1911) 145 Ky. 250, 140 S. W. 189, on this point, was as follows: "In a long line of cases this court has held that, upon the death of the owner of land, the right to the rents

vests, not in his personal representative, but in his heirs or devisees, unless the owner leaves a will which provides to the contrary."

In Combs v. Branch (1836) 4 Dana, 547, the holding was that devisees may maintain an action against the tenant to recover the rents which have accrued after the testator's death, the rent being an incident to the reversion, and there being nothing in the will indicating an intention to sever the rents from the lands.

The widow of the testator was held to be entitled to the rents in Cass v. Smith (1885) 7 Ky. L. Rep. 305 (abstract), since accruing rents belong to the widow, devisees, or heirs who take the lands after the death of the lessor.

In Goosling v. Pinson (1923) 198 Ky. 57, 248 S. W. 248, it was held that the royalties, which accrued as rents of mines leased by a husband and devised to his widow for her natural life, belonged to her, and not to the personal representative, who was authorized generally by the terms of the will to collect and distribute the testator's income, including royalties under his mineral leases.

11. Maine.

It is the settled law of Maine that accruing rents of the real estate of an insolvent testator, until the land is sold for the payment of debts, belong to the devisee, and not to the executor. Kimball v. Sumner (1873) 62 Me. 305.

Where the executor received and paid out certain moneys which he had received as rent accrued on the real estate of the testator after his death, it has been held that the rents which accrued after the death of the lessor were incident to the reversion, and descended to the devisees, so that if collected by the executor he held them merely as a trustee, and could not properly apply them to the payment of debts of the estate. Mills v. Merryman (1861) 49 Me. 65.

The facts and the ruling as stated in Brown v. Fessenden (1889) 81 Me. 522, 17 Atl. 709, were as follows: "In the case at bar, the testator de31 A.L.R.-3.

vised his real estate to his executor by name, in trust for the benefit of a son until he should arrive at the age of thirty years. This is clearly a testamentary trust, and the income of the real estate did not become assets to be administered by the executor. True, the trustee, now dead, did not qualify as trustee by giving the bond required by statute, but, so acting, received certain rents and profits of the real estate, and paid a portion of the same to his cestui in accordance with the terms as defined in the will."

In Fessenden's Appeal (1885) 77 Me. 98, it was held that where the estate was insolvent, and the real property was sold for the payment of debts, the heirs and devisees were entitled to the rents until the sale, but subject to the payment of the taxes assessed on the property prior to its sale. It was said that the technicality which gave to heirs and devisees the rents of an insolvent estate is an extreme doctrine against creditors, and the severity of requiring creditors to pay the taxes while others reap the rents should not be superadded.

12. Maryland.

Where the lessor dies before rent becomes due, it goes to the devisees or heirs entitled to the land out of which the rent issues. But where the lessor dies after the rent falls due, the executor or administrator is entitled to it. The rent cannot be apportioned in respect to part of the time. The persons entitled to the estate when the rent falls due must have the entire amount payable at that time. Martin v. Martin (1855) 7 Md. 368, 61 Am. Dec. 364.

The evidence in the case of Getzandaffer v. Caylor (1873) 38 Md. 280, showed that the testator bequeathed all his personal property, except bonds, notes, or money, to the appellants, and devised certain of his real estate to his executor, with directions to convert it into cash and pay certain legacies specified in the will. The real estate was under a lease at the time of the death of the

testator, and the rents which accrued thereafter were claimed by the appellants. The language of the court was as follows: "We cannot perceive any sufficient ground upon which the claim of the appellants can be supported. The land out of which the rent accrued is not included in the devise to them. Rents

accruing after the death of the owner of land do not pass into the hands of his executor or administrator as a part of his personal property, but go to the heir at law or devisee. In the present case the land is devised to the executor, with directions to sell and apply the proceeds to certain legacies. The rents in question go to the executor, who by the will is entitled to the estate out of which they issued; and they are to be held and applied by him to the same objects and purposes for which the real estate was devised to him; that is, to the fund out of which the legacies mentioned in the third clause of the will are to be paid. The appellants

not entitled to them."

were

In Emery v. Owings (1847) 6 Gill, 191, 8 Mor. Min. Rep. 378, the record showed that the testator, after devising to his son the Fox Rock quarry, out of which the rents in question issued, further provided as follows: "And it is my will and desire that the rents arising from the quarry known by the name of the Fox Rock quarry be applied to discharge the "encumbrances on the same." The executors claimed that by this provision the rents were separated from the reversion and belonged to the estate, But the court decided that the clause did not direct the rents to be applied to debts of the estate generally, but to the discharge of the encumbrances on the devisee's quarry, and that the devisee was entitled to the rents as a quasi trustee for their faithful application according to the will.

13. Massachusetts.

In the absence of special provision by will or by contract, the accruing rents and profits of testator's lands

belonged to his heirs or devisees, and not to the executor or administrator. This is the rule though the estate is insolvent. Unless and until the land is sold for the payment of debts under a power in the will, or by decree of court, the reversioners may enjoy the rents. And if the personal representative does receive such rents, his heirs or devisees may recover them from him in an action at law. Brooks v. Jackson (1878) 125 Mass. 307. In that case it was held further that the rents received by the executor from the time of the death of the lessor to the time of his removal from the office were, by statute (Gen. Stat. chap. 98, § 8), assets of the estate, and should have been accounted for; but that rents which he collected after his removal were not received in his official capacity, and not accountable for as such.

The holding in Lobdell v. Hayes (1858) 12 Gray, 236, was that on the death of an insolvent lessor the rents vested in the heirs at law until the land was sold for the payment of debts, and the court said that, as it was shown that the administrator collected the rents, he acted as agent for the heirs and was bound to account to them for the rents after deducting the expenditures for taxes, insurance, interest on the mortgage, necessary repairs, and reasonable compensation for administration.

"It often happens that executors, from their relation to the testator. come into possession of the real estate; but in such cases they are responsible to the heirs or devisees for the rents, and not to the creditors." Newcomb v. Stebbins (1845) 9 Met. 540.

The view in Almy v. Crapo (1868) 100 Mass. 218, was that the heirs were entitled to the rents which accrued after the death of the lessor, but they could allow the executor or administrator to collect them as trustee, and could hold him personally liable.

In a case where it appeared that the executor collected the rents until a trustee was appointed to assume

charge of the trust estate for the widow and minor children, the court said the facts constituted a case for requiring the executor to account in his official capacity for the rents of the real estate. This was by virtue of a statute (Gen. Stat. chap. 98, § 8). Choate v. Arrington (1875) 116 Mass, 552.

In Cummings v. Watson (1889) 149 Mass. 262, 21 N. E. 365, it appeared that the death of the lessor terminated the tenancy at will, but the tenants held over. It was held that the tenants holding over after the death of the landlord were liable to the heirs at law for rent, by virtue of a statute (Pub. Stat. chap. 90, § 25) which provided that tenants at sufferance, in possession after the death of the lessor, should be liable to pay rent for such time as they remained in possession.

It was held in Clapp v. Stoughton (1830) 10 Pick. 463, that on the forfeiture of a devise due to noncompliance, the rents belonged to the heirs of the residuary devisee, who died after the testator, but before the forfeiture.

14. Minnesota.

The following statement of the law in Minnesota appears in State ex rel. Beals v. Probate Ct. (1878) 25 Minn. 22: "The executor or administrator is entitled to the possession, and to the rents, issues, and profits of real estate, until the estate is settled, or until delivered over, by order of the probate court, to the heir or devisee. Gen. Stat. chap. 52, § 6. He is accountable for the income of the real estate while it remains in his possession. Gen. Stat. chap. 54, § 7. . . . After the executor or administrator has paid the expenses of administration, and debts, and such allowances to the widow and children as the statute provides for, the probate court by decree assigns the remainder of the estate, real and personal, among those entitled under the will; or, if there be none, according to the Statute of Descent and Distribution. Gen. Stat. chap. 56, §§ 4-23. This decree is not

necessary to vest the title to the real estate, for that passes upon the death of the decedent."

15. Mississippi.

Until the land is made assets by order of court to pay the debts of the testator, the legal title of the real estate, with all its incidents, is in the devisee. Wood v. Bott (1878) 56 Miss. 128.

16. Missouri.

Although the general rule is that the realty descends to the heirs, and the executor has nothing to do with it, except in case of deficiency, yet, when as a matter of fact he does assume charge of it and collects the rents, he is responsible for them as executor. Gamble v. Gibson (1875) 59 Mo. 585; Dix v. Morris (1876) 1 Mo. App. 93, affirmed in (1877) 66 Mo. 514; Lewis v. Carson (1887) 93 Mo. 587, 3 S. W. 483, 6 S. W. 385.

17. Montana.

It has been held that the executrix is authorized to receive the accruing rents under the Montana statute (Rev. Codes, 7603) providing that "an executor or administrator must take into his possession all the estate of his decedent, real and personal, and collect all debts due to the estate." Re Dolenty (1916) 53 Mont. 33, 161 Pac. 524.

18. New Hampshire.

The New Hampshire statute (Rev. Stat. chap. 159, § 10) authorizes the executor to receive the accruing rents for the estate, and not as trustee of the heir, such rents being assets to be distributed as personal property. Therefore, where the personal estate was insufficient to satisfy all the debts, it was held that the executor was authorized to administer all of the testator's property, real and personal, in the insolvent course. Sparhawk v. Allen (1882) 25 N. H. 261.

And again, in another case, it was said: "By the statute of this state [New Hampshire] an executor or administrator is authorized and required to receive the rents and profits of the real estate of the testator or intes

tate, in case the estate is insolvent, and bound to account for the net proceeds thereof in his administration account. Rev. Stat. chap. 159, § 10. . But generally, in other (solvent) cases, the land descends, on the death of the testator or intestate, to the devisees or heirs, with no right or duty on the part of the executor or administrator." Gregg v. Currier (1858) 36 N. H. 200.

The record in Madigan v. Burns (1878) 58 N. H. 405, showed that the last will and testament of the decedent gave the defendant and the plaintiff (appointed executor) each one half of all the income of all her property, real and personal, during the life of the defendant. Question arose as to the proper person to collect the rents. The court said: "The intention of the testatrix is manifest that the land be not divided, that the rents be collected as one income, and divided,―half to be the property of the plaintiff, and half to be the property of the defendant,-which disposition naturally makes the plaintiff the defendant's agent for collecting the whole and paying half to her; and the whole will indicates the intention of the testatrix that the executor should be officially responsible, on the security of his bond, to the defendant for half the rents."

In Harris v. Ingalls (1906) 74 N. H. 35, 64 Atl. 727, it was said that where the executor took possession of the real estate of the testator under a decree of insolvency, they should account in their administration for the rents they received after the decree, and that any surplus belonged to the legatees.

19. New Jersey.

The holding in Ware v. Hall (1838) 16 N. J. L. 333, was that the rent accruing after the testator's death belongs to the heirs, in case it is not disposed of by the will.

It appeared in Condit v. Neighbor (1832) 13 N. J. L. 83, that a lessee covenanted to pay annual rent to the lessor and his wife. The wife survived the husband and thereafter remarried. It was held that the rents which accrued after the death of the

lessor belonged to the wife during her life, but not to her second husband and his representatives at his death.

It was said in Bittle v. Clement (1903) N. J. Eq. —, 54 Atl. 138, that rents accruing after the death of a testator, and before the exercise of a power of sale, go with the title of the land to the devisees, and not to the executor or the purchaser under the power.

20. New York.

The language of the court in Fay v. Holloran (1861) 35 Barb. 295, was as follows: "It has been often decided that if the landlord dies before the rent becomes due, it goes to the heir, as incident to the reversion. It is laid down that, after the death of the lessor, the proper person to seek a remedy for the breach is he to whom the reversion is transmitted; if it be the reversion of a freehold estate, the heir; or, if the lessor has devised the reversion, the devisee. And although rent be expressly reserved to the lessor (owner in fee), his executors, administrators and assigns, the executors cannot have it, being strangers to the reversion, and the heir may sue for arrears accruing after the ancestor's death. Nor, in a case like this under consideration, can the rent be apportioned." See to the same effect, the dictum in Lambden v. Lambden v. Thompson (1916) 173 App. Div. 267, 159 N. Y. Supp. 242.

It was held in Armstrong v. Armstrong (1920) 185 N. Y. Supp. 853, that an executrix has no right to collect the rents which accrued after the death of the landlord, and if she does so she is liable in her individual capacity, and not as executrix. See also Van Rensselaer v. Platner (1800) 2 Johns. Cas. 17, and Wright v. Williams (1826) 5 Cow. 338.

So, it was laid down in Clift v. Moses (1889) 116 N. Y. 144, 22 N. E. 393, that a devisee, where there is no charge on the real estate, or where the real estate is not converted into personalty, is entitled, as against the personal representatives or creditors of the deceased, to receive and