retain as his own the rents and profits arising from the realty, until the same is sold for the purpose of paying the debts.

Rents and profits from the date of the testator's death to the date of judicial sale belong to the residuary devisees named in the will as owners of the legal title thereof, and do not properly form a part of the executor's assets. Re Bampfield (1914) 88 Misc. 463, 152 N. Y. Supp. 212, 13 Mills, 392.

An administrator cum testamento annexo has no right to the rents which accrue after the death of the lessor, since the rents pass to the devisees, and not to the executor under the will. Re Van De Walker (1913) 79 Misc. 661, 141 N. Y. Supp. 325, 10 Mills, 180.

Where it appeared that the testator provided in his will that the executors should sell certain real property and expend the proceeds according to his will, it was held that the rents accruing after the death of the testator belonged to the executors, and not to the heirs. Tickel v. Quinn (1882) 1 Dem. 425.

In Stagg v. Jackson (1848) 1 N. Y. 206, it appeared that the testator intended that his whole estate, both real and personal property, should be distributed to legatees named. It was held that by the will the executor was entitled to the real property, including the rents, on the principle of equitable conversion, and was bound to account for the rents and the proceeds of the sale as assets of the personal estate distributed to legatees.

It appeared in Coann v. Culver (1907) 188 N. Y. 9, 80 N. E. 362, that a testator devised and bequeathed all the rest, residue, and remainder of his real and personal estate in equal shares to five cousins named. It was said: "Under the provisions of this will, the title to the testator's real and personal estate had vested in the five persons, to whom, in the fourth clause, he had given the residue and remainder of his estate, subject only to the exercise by the executor of the power of sale con

ferred upon him in the fifth clause. They alone were entitled to the rents and profits of the land, and, if that be true, they alone were entitled to maintain such an action. . . The executor was not empowered to receive the rents and profits of the estate."

It was held in Hunter v. Hunter (1853) 17 Barb. 25, that rents reserved on a perpetual lease were incorporeal hereditaments, and as such descended to the devisees on the death of the landlord.

In Hubbard v. Housley (1899) 43 App. Div. 129, 59 N. Y. Supp. 392, affirmed in (1899) 160 N. Y. 688, 55 N. E. 1096, the will appearing in the record contained the following provision: "I give, devise, and bequeath all the rest, residue, and remainder of the property and estate, real and personal, of which I shall die seised or possessed, unto my executors hereinafter named," etc., "in trust to take possession of my residuary estate, and to convert the same, or such part or parts thereof as it may be necessary so to do, into money, by public or private sale," and to make conveyances thereof, and, "upon the final settlement of my estate, to divide the net proceeds of my said residuary estate into four equal parts, and dispose of said parts as follows, viz." The court said that under this provision the executor was authorized to take possession of the land and to collect the rents as a necessary incident to the land, and that the heirs had no right to interfere with it.

The question in Ingrem v. Mackey (1882) 5 Redf. 357, was whether or not the executor should account for the rents of the real estate in his representative capacity. It appeared that the testator left all his personal property and also a part of his real property to his widow. The executor was directed by the will to sell and dispose of the remainder and to dispose of the proceeds among legatees named therein. The executor collected the rents until the land was sold. The court held that the rents collected by the executor became assets in his hands by virtue of the

will, and must be accounted for along with the proceeds of the sale.

In Re Hughey (1887) 7 N. Y. S. R. 732, it appeared that the testator leased a farm to his son from year to year. He also devised the farm to his son by his last will and testament. After the death of the testator the executor claimed the rent for the year. It was held that the executor was not entitled to the rent, as it had not fallen due prior to the death of the landlord, and the devisee's right to the rents merged in his right to the land.

In the case of Re Spears (1895) 89 Hun, 49, 35 N. Y. Supp. 35, the record showed that the deceased made the following will: "New York, Feb. 28th, 1891. I, William C. Spears, being of sound mind, and being about to go to Florida, make this, my last will and testament. I hereby make my brother Joseph Spears my sole executor, and leave to his judgment, as he may see fit, the disposal of all my real and personal property, to be divided among my heirs as his judgment may deem best and most fitting to him, and to be sold or held as long as he may deem best for the interest of my heirs. William C. Spears." It was held that under the will the executor had no right to collect the rents of the real estate.

In Marshall v. Moseley (1860) 21 N. Y. 280, it was held that on the death of a life tenant who leased for years, and died in the middle of a term, the accruing rent went with the reversion, and could not be apportioned as between the executor and the reversioner, but could be apportioned among the various persons who received the reversion.

The holding in the case of Re Dunn (1909) 63 Misc. 179, 118 N. Y. Supp. 560, 7 Mills, 174, was to the effect that a tenant in common, who was also administratrix, could not in her official capacity collect the rents which accrued on the testator's real estate after his death, but received them as trustee, and was accountable to the other tenants for their shares.

In Jay v. Kirkpatrick (1899) 26 Misc. 550, 57 N. Y. Supp. 476, it was

In Loveless v. Erie R. Co. (1914) 2 Ohio App. 404, 35 Ohio C. C. 87, whereîn it was shown that the executor collected the rents and profits of the leased real property of the decedent, the court held: "Rent accruing after the death of the testator under a lease made by him belongs to the devisee, unless specially excepted by the terms of the will. . . . Rent collected by an administrator or an executor which accrued after the death of the testator is held by him in trust for the heirs of the estate or the devisee, and they can recover from him.”

23.. Pennsylvania.

Under the Fiduciary Act of 1917 (P. L. 447) it has been held that rents accruing after the death of the testator, on lands which she had previously leased, become assets for the payment of her debts. In Reel's Estate (1919) 263 Pa. 248, 106 Atl. 227, the act provides as follows: "Rents of real estate accruing after the death of the owner of such real estate, who shall die on or after the day on which this act shall go into effect, shall be assets for the payment of debts of such decedent whenever the personal estate shall be insufficient therefor. . . . In such case the executor or administrator shall have power to collect such rents by action at law, dis

tress, or otherwise; . . . and rents so collected shall be accounted for by the executor or administrator in his account of the personal estate of the decedent." The court said: "This is new and very wise legislation, for before its passage the rents accruing from the real estate of a decedent owner went to his heirs and devisees from the time of his death,

and the heir or devisee of an insolvent decedent took such rents at the expense of the creditors of the estate.

The legislative intent, as clear by implication as if expressed in words, is that neither heir nor devisee shall profit from the real estate of a decedent when it or the rents issuing from it are needed for the payment of debts.

Rents which accrued

after the death of Almatia L. Reel, on leases executed by her, undoubtedly became assets for the payment of her debts under the Act of 1917."

But, prior to the Act of 1917, the following opinions appeared: In Cobb v. Bibble (1850) 14 Pa. 444, in an action by an executor to recover rent from a tenant, it was said that ground rent was real estate, and in case of intestacy went to the heirs, but in case of testacy it went to the executor to be disposed of according to the will, and that on the death of the testator the executor was entitled to receive the accruing rents which fell due.

The executrix cannot be required to account for the rents of real estate, though she used the term "executrix" in collecting the rents and leasing the properties. Miller's Estate (1895) 4 Pa. Dist. R. 408.

"Although an executor or administrator may undertake to collect rents received from the real estate, he does so, not in his official capacity, but merely as agent for the heirs." Kreise v. Cartledge (1918) 262 Pa. 55, 104 Atl. 855.

In Landis v. Scott (1859) 32 Pa. 495, it was held that the executor collecting rents of the real property of the testator after his death was liable to account to the devisees as trustee or agent.

In Anck's Estate (1876) 11 Phila. 118, 33 Phila. Leg. Int. 54, it was held

that, where the executor collected rents accruing after the death of the lessor, the rents were improperly included in the executor's account, but should have been accounted for separately as held in trust for the beneficiaries.

In Burnell's Estate (1880) 13 Phila. 387, 37 Phila. Leg. Int. 464, it was said that rents accruing since the death of the decedent were not assets for the payment of debts, but belonged to the devisees.

So, it was held that there was no duty on the part of the executor to collect the rents which accrued after the death of the testator, and he was not chargeable in the court for a failure to collect them. Myers's Estate (1872) 9 Phila. 310.

Even where the executor took general charge of all the deceased testator's property, real and personal, collected the accruing rents, and paid debts of the real estate, it was said that he was "not authorized to receive the rents or profits of the real estate," or to discharge the incidental charges against the realty. Walker's Appeal (1887) 116 Pa. 419, 9 Atl. 654.

The facts and the conclusion in Young's Estate (1894) 4 Pa. Dist. R. 44, were stated by the court as follows: "The testator bequeathed and devised his entire estate, real and personal, to his two daughters, and gave his executors a mere naked power of sale. That this conferred no authority on the executors to collect the rents, lease the real estate, and manage or control it in the slightest degree has been repeatedly decided. It is no part of their duty to intermeddle with the real estate until necessary for the payment of debts or legacies under an order of the court, or authority contained in the will, and for the reason that the lands are vested in the devisees or heirs, and they, being the owners, are entitled to the rents, and the same cannot be applied to the payment of debts without their consent. An executor or administrator who assumes charge and control of the real estate is liable to account to the devisees or heirs as a trustee or agent."

Where a testator directs his execu

tors to sell the land, it descends to the heir at law, who may enter and enjoy the rents for his own use until the sale. Burr v. Sim (1836) 1 Whart. 252, 29 Am. Dec. 48.

In another Pennsylvania case the record showed that the testator devised his real property to his executor, to apply to debts if necessary. The land was leased during the testator's lifetime, but the rent did not fall due until after his death. On the death of the landlord the executor collected the rents, and treated them as assets of the estate. The opinion of the court contained the following: "The general rule, doubtless, is that an executor who receives rents of the real estate of a testator holds them in trust for the devisee. But the rule is not without exception. The testator may in his will, by express directions, order different a disposition of the rents, issues, and profits of his real estate. So he may by implication, as when he places such real estate under the control of his executors for the purpose of paying debts or satisfying legacies. It is evident that the testator in the will before us supposed it possible that his personal property might prove insufficient to pay his debts. He therefore gave to the executrix and executor control over his real estate." Jones's Appeal (1858) 3 Grant, Cas. 250.

Where a testator devised to his wife a life interest in a leased coal mine, the widow was entitled to the royalties of the mine after the death of her husband. The executor had no right to the rents or royalties. Duffy's Estate (1904) 209 Pa. 390, 58 Atl. 840.

24. Rhode Island.

In Belcher v. Branch (1875) 11 R. I. 226, it was held that the administrator de bonis non, in his official capaccity, had nothing to do with the rents which accrued on his testator's real estate, after his death, and that if he collected such rents he did so as trustee, and was not accountable to the probate court.

Where real estate is devised by will, the right to rents accruing after the death of the lessor passes at once

to the devisee on the death of the testator. Hendrick v. Probate Ct. (1903) 25 R. I. 361, 55 Atl. 881.

25, South Carolina.

In the reported case (STATON V. GUILLEBEAUX, ante, 1) the court says that in the absence of express provision by will the right to the accruing rents after the death of the landlord is in the devisees or heirs, and not in the executrix; but where the rent is left to the executrix by will, she has a right, in her official capacity, to collect and apply the rent as assets of the estate.

It was said in Huff v. Latimer (1890) 33 S. C. 255, 11 S. E. 758, where the landlord died testate, that the rent generally belongs to the devisee, and not to the executor, but where the rent accrued during the lifetime of the landlord, or where the same was secured by the note or other obligation of the tenant, made payable to the landlord, the rent belongs to the personal representatives.

26. Tennessee.

"While real estate, unless specially exempt, is made assets for the payment of debts of a decedent, yet the title, subject to this liability, under such proceedings as are required by our law, goes directly to the heir or devisee where there is a will. It has always been held in this state that the heir or devisee is owner, and is entitled to the rents and profits. . . There is nothing in our statutes changing the rights of the heir or devisee in this respect; on the contrary, the remedy of the creditor, both under the Act of 1827, Thompson & Steger's Code, 2267, when there has been an exhaustion of personal assets in payment of debts, and under our insolvent laws, is only against the land itself." Smith v. Thomas (1884) 14 Lea, 324.

The holding in Read v. Franklin (1900) Tenn. -, 60 S. W. 215, was to the effect that the widow was accountable to the heirs for the rents in excess of her dower and homestead rights in the real estate of her deceased husband.

In Combs v. Combs (1914) 131 Tenn. 66, 173 S. W. 441, it appeared that the

testator leased his lands and took the tenant's rent notes. Before the rent fell due the landlord died. The question which arose was whether the rent was assets in the hands of the executor, or belonged to the devisees. The court held that the rent went to the devisees as real property, saying: "By the rule of the common law rents under a lease executed by the owner in fee, so accruing after death, cannot be said to be the goods, chattels, rights, or credits of the deceased, since they are incident to the reversion, and vest in the heir or devisee. In this state, as well as in many other states, this rule is in force. There is nothing in changing the rights of the heir or devisee. . . . An indorsement of the rent notes before maturity by the lessor would, of course, effect a severance as against one thereafter acquiring the reversion. . The mere representation of accruing rent in or by note, held at death by the lessor, cannot have the effect to sever."

27. Virginia.

our statutes

The case of Hobson v. Yancey (1845) 2 Gratt. 73, held that, until the lands of the decedent became charged with the debts of the estate, the rents accruing after the death of the testator belonged to the devisees or heirs, and that if the executor received them, he became a trustee, and was accountable for them to the devisees or heirs.

28. West Virginia.

In Daniels v. Bishop (1916) 79 W. Va. 240, 90 S. E. 828, it was held that under the West Virginia statute (Code 1913, §§ 3909 and 4134) the executor was entitled to collect the rents which accrued after the death of the testator, on lands devised to the executor for a term of years, and was authorized to apply them as assets of the estate to the payment of debts, or, in the absence of creditors, to the legatees or heirs.

29. England.

In Richmond v. Barker (1591) Hil. 33 Eliz. C. B. rot. 1315, 3 Dyer, 361b, pl. 15, 73 Eng. Reprint, 811, it appeared that the executor received the

rent which became due after the death of the landlord. The testator had reserved to himself, his heirs and assigns, the rent of the property. It was held that the rent was not assets in the hands of the executor, but belonged to the heir absolutely.

III. Rents accruing before death of landlord.

a. Where landlord dies intestate.

1. United States.

In Kendall v. Ewert (1922) 259 U. S. 139, 66 L. ed. 862, 42 Sup. Ct. Rep. 444, it was held that on the death intestate of the lessor of zinc and lead mines, the royalties which had accrued belonged to his administrator for the purpose of paying debts, and for distribution.

2. Alabama.

Rents accrued before the death of the landlord pass on intestacy to his administrator. Harkins v. Pope (1846) 10 Ala. 493; Palmer v. Steiner (1880) 68 Ala. 400.

3. Connecticut.

In a case wherein it appeared that a parol lease was made for a year by a guardian, of the land of his ward, and the ward died within the year, it was held that by the death of the ward before the expiration of the term, the lease was determined, and no rent became payable, and the heir could not maintain an action of assumpsit for the rent which accrued previously to the death of the ward. Welles v. Cowles (1821) 4 Conn. 182, 10 Am. Dec. 115.