PERIODICAL PAYMENTS WHICH ARE ΤΟ BE APPORTIONED, 4 & 5 Will. 4, AND THE RECOVERY OF APPORTIONED PARTS. ties and other periods to be ap c. 22, s. 2. 2. From and after the passing of this act, all rents service All rents, annulreserved on any lease by a tenant in fee or for any life* interest, payments coming or by any lease granted under any power (and which leases due at fixed shall have been granted after the passing of this act), and all portioned; rents charge and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description, in the United Kingdom of Great Britain and Ireland, made payable or coming due at fixed periods under any instrument that shall be executed after the passing of this act (or being a will or testamentary instrument) that shall come into operation after the passing of this act (b), shall be apportioned so and in such manner that on the death of any person interested in any such rents, annuities, pensions, dividends, moduses, compositions or other payments as aforesaid, or in the estate, fund, office, or benefice from or in respect of which the same shall be issuing or derived, or on the determination by any other means whatsoever of the interest of any such person (c), he or she, and his or her executors, administrators or assigns, shall be entitled to a proportion of such rents, annuities, pensions, dividends, moduses, compositions and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (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 and de- subject to all just ductions in respect of charges on such rents, annuities, pensions, dividends, moduses, compositions and other payments 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, annuities, pensions, dividends, moduses, compositions and other payments, when the entire portion of which such apportioned parts shall form part shall become due and payable, and not before, as he, she or they would have had for recovering and obtaining such entire rents, annuities, pensions, dividends, moduses, compositions and other payments, 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 rents of which such portions shall form a part shall be received and recovered by the person or persons who if this act had not passed would have been entitled to such entire rents; and such portions shall be recoverable from such person or persons by the parties entitled to the same under this act in any action or suit at law or in equity. • Sic, sed quære less. (b) In all cases of apportionment occurring after the 1st August, 1870, reference must be made to 33 & 34 Vict. c. 35 (post). The following note refers to the law before that date. deductions. Remedies for obtaining the appor tloned parts. 4 & 5 Will. 4, c. 22, s. 2. Cases under 4 & 5 Will. 4, c. 22. Act does not apply to rents not reserved by writing. Act applies to all cases where either the lease reserving the rent or the instru- A lunatic's estates, of which he was seised in fee, were let by parol agreement from year to year, the rents payable half-yearly at Lady-day and Michaelmas. The lunatic died in June: it was held, that the proportion of the half-year's rents from the last Lady-day before the lunatic's death up to the day of his death, was not apportionable under this statute. Lord Cottenham, C., was of opinion that the statute does not apply to this case. First, it enumerates the most worthy subject, namely, rents service, that is, rents reserved under leases; then it proceeds to give an enumeration of various other subjects, concluding with a general clause, large enough to embrace every kind of payment coming due at fixed periods; and it requires that they should be under an instrument executed after the passing of the act. But there was no intention on the part of the legislature to make any distinction between the several matters which are the subject of the enactment, as to whether the payments should or should not be under an instrument in writing. Even in the case of the least worthy of the subject-matters which the section enumerates, it was intended that the instrument creating or evidencing the payment should be in writing; and à fortiori, that was so as to the most worthy, the only question being as to the time at which the instrument was to be executed. (Re Markby, 4 M. & Cr. 484; 3 Jur. 767; and see Cattley v. Arnold, 1 J. & H. 660; Mills v. Trumper, L. R., 4 Ch. 320.) This act applies to all cases where either the lease reserving the rent, or the instrument creating the life interest in it, has been executed since the passing of the statute. Rent reserved by a lease granted after the act, under a power in a settlement executed before the act, was held to be apportionable between the executors of the tenant for life under the settlement and the remainderman. (Plummer v. Whiteley, Johns. 585; 5 Jur., N. S. 1416; 29 L. J., Ch. 247.) Wood, V.-C., said he considered that the first branch of the commencement of the 2nd section of this act refers to two classes of subjects, to each of which the enacting words are applicable; that in fact the section must be read thus: in the first place, that after the passing of the act all rents reserved by tenants in fee or for life, or by donees of powers of leasing, such leases being granted after the passing of the act, shall be apportioned; and in the next place, that all other rent-charges and other rents, &c., made payable or coming due at fixed periods under an instrument executed after the passing of the act, shall also be apportioned. According to this construction, the former portion of the section provides for interests existing at the passing of the act, whilst the latter looks to and provides for the future. Wood, V.-C., thought that this was a rational interpretation of the statute, and although open to the objection that to a certain extent it renders the statute ex post facto legislation, he thought it must have been the ground upon which Lock v. De Burgh (post) was decided; he therefore followed that decision in deciding the present case, and declared, that the rents in question ought to be apportioned. (Plummer v. Whiteley, Johns. 585; 5 Jur., N. S. 1416.) Certain real estates were settled by deeds, dated in 1828, upon A. B. for life, with remainder over, and a power of leasing for twenty-one years was given to the tenant for life. After the passing of this act A. B. exercised as to some of the estates his power of leasing, and died in 1849, between two quarterly days of payment of rent: it was held by Knight Bruce, V.-C., that the case was within the act, and that his personal representative was entitled to a portion of the rent which accrued between the last day of payment and his death. (Lock v. De Burgh, 15 Jur. 961; 20 L. J., Ch. 2, 384; 4 De G. & Sm. 470.) In Fletcher v. Moore (5 W. R. 421), Kindersley, V.-C., came to a decision opposed to Lock v. De Burgh; but in a subsequent case, the same judge said that some of the reasoning in Fletcher v. Moore could not be supported consistently with the view he afterwards took of the act. (Wardroper v. Cutfield, 12 W. R. 459.) The construction of the act adopted by Wood, V.-C., in Plummer v. Whiteley, seems now to be accepted in England. Where a lease was granted after the passing of the act under a power in a settlement executed prior to the act, Lord Romilly, M. R., held that the rent reserved by the lease was apportionable between the tenant for life and remainderman under the 4 & 5 Will. 4, settlement. (Llewellyn v. Rous, L. R., 2 Eq. 27.) Where under a will which came into operation before the act, A. was tenant for life of tithes, which after the act were commuted for a rentcharge under 6 & 7 Will. 4, c. 71; it was held by Malins, V.-C., that upon the death of A. the rent-charge was apportionable under the act. (Heasman v. Pearse, L. R., 8 Eq. 599.) Where leases were granted before the act, and after the act the lessor died having devised his real estates, including the lands comprised in the leases to trustees in trust to pay part of the rents to his widow for life, it was held that the rents were apportionable. (Knight v. Boughton, 12 Beav. 312. See Swan v. Bookey, 4 Ir. L. R., N. S. 582.) Where a testatrix, under a power of appointment dated in 1821, appointed by will, dated in 1838, the dividends of certain stock to her husband for life, with remainders over, it was held that the dividends must be apportioned. (Wardroper v. Cutfield, 12 W. R. 458.) A life estate in realty was created by deed in 1787. The estate was sold, and in 1821 invested in consols. The tenant for life died in 1841. It was held, that her executors were not entitled to an apportionment of the dividends, the settlement having been made before the act. (Michell v. Michell, 4 Beav. 459; and see Re Lawton Estates, L. R., 3 Eq. 469.) For the construction placed upon this section by the Irish Courts, see Swan v. Bookey, 4 Ir. L. R., N. Š. 582, and Re Alexander, 4 Ir. Ch. R. 266. c. 22, s. 2. The question has been raised whether the "instrument" referred to in Meaning of the second part of the first clause of this section means the instrument "instrument." creating the periodical payments or the instrument creating the life interest therein. It seems that it means the latter. (Knight v. Boughton, 12 Beav. 312; Plummer v. Whiteley, Johns. 585; Wardroper v. Cutfield, 12 W. R. 458; but see Heasman v. Pearse, L. R., 8 Eq. 599.) An order of the Court of Chancery directing payment of dividends to a Order of court tenant for life is not an instrument within the meaning of the act. (Re not an instrument. Lawton Estates, L. R., 3 Eq. 469; Jodrell v. Jodrell, L. R., 7 Eq. 461.) By a will, which came into operation after the act, real estate was devised to A. for life, subject to impeachment for waste, with remainder to B. for life without impeachment for waste, with remainders over. With the sanction of the court, timber on the estate was cut down and sold, and the proceeds of sale invested, and the dividends were ordered to be paid to A. during his life. It was held, that upon A.'s death the dividends were not apportionable. (Jodrell v. Jodrell, L. R., 7 Eq. 461.) Where in 1838 a lease was granted which expired on the 23rd Nov. 1850, Agreement to and in 1843 the defendant agreed to purchase the lease and pay an annual purchase lease. rent of 4007., payable quarterly in March, June, September, and December, it was held, that (the case not being within the Apportionment Acts), the defendant was not bound to pay an apportionment of the rent from the 29th Sept. to the 23rd Nov. 1850. (Peers v. Sneyd, 17 Beav. 151.) The provisions of this act have been extended to all rent-charges payable Rent-charges under 4 & 5 Vict. c. 35. (4 & 5 Vict. c. 35, s. 50.) under 4 & 5 Vict. c. 35. This act only applies to rents reserved at fixed periods, and does not apply to royalties in the nature of rents payable at uncertain periods, such Royalties. as royalties payable upon the selling of ore from a mine. (St. Aubyn v. St. Aubyn, I Dr. & Sm. 611.) auditor. The salary of an auditor and superintending manager of an estate, hold- Salary of ing office during the joint lives of the employer and himself, is not apportionable under this section. (Lowndes v. Stamford, 18 Q. B. 425.) Interest on money secured on bond was, according to the old law, con- Interest. sidered as accruing de die in diem, and though the condition of the bond reserved it half-yearly, it was apportioned. (. (Banner v. Lowe, 13 Ves. 135.) The interest of money secured on mortgage, although reserved half-yearly, was considered as accruing from day to day and not in the nature of rent: and on the death of a person entitled to the interest for life, the current interest was apportioned between his executors and the remainderman. (Edwards v. Countess of Warwick, 2 P. W. 151.) And 4 & 5 Will. 4, c. 22, 8. 2. Annuities. it has been held that interest payable on coupons to debentures, though payable half-yearly, accrues due de die in diem, and is therefore subject to apportionment. (Re Rogers' Trusts, 1 Dr. & Sm. 338.) But interest given by a will, in the nature of an annuity, was not apportioned in favour of the executor of the tenant for life. (Franks v. Noble, 12 Ves. 484.) The half-yearly interest on a share in a loan to the East India Company, redeemable after a certain period at the option of the Company, but not at that of the creditor, was held to be in the nature of an annuity and not of interest, and therefore not to be apportionable between tenant for life and remainderman. (Warden v. Ashburner, 2 De G. & Sm. 366.) Though annuities were not apportionable before this act, yet in equity the maintenance of infants was always apportioned up to the day of their deaths, because it would be difficult for them to find credit for necessaries, if the payment depended on their living to the end of the quarter. (Hay v. Palmer, 2 P. Wms. 501; Reynish v. Martin, 3 Atk. 330.) An annuity was given for maintenance, and charged upon land for a certain time, which ceased before the time of the year at which the annuity was payable: the annuitant was held entitled to an apportioned part of such annuity for the time between the last payment and the cessation of the charge. (Sheppard v. Wilson, 4 Hare, 395. See Longmore v. Elcum, 2 Y. & Coll. C. C. 363.) And upon the same principle, an annuity secured by bond for the separate maintenance of a feme covert, where the quarterly payments were not made in advance by way of maintenance for the ensuing quarter, but payable at the end of each quarter, was apportioned at the death of the wife. (Howell v. Hanforth, Bl. R. 1016. See 16 Q. B. 362, 363.) But an annuity given by will to a married lady, living with and maintained by her husband, for her separate use, payable half-yearly, was not apportioned. (Anderson v. Dwyer, 1 Sch. & Lef. 301.) Independently of 4 & 5 Will. 4, c. 22, annuities were not apportionable unless granted for the maintenance of infants or married women living separate from their husbands. (Leathley v. French, 8 Ir. Ch. R. 401.) When the master of a charitable corporation was to receive the income for the support and maintenance of himself and five poor persons, it was held that the income was apportionable between the new master and the representatives of the deceased master. (Att.-Gen. v. Smythies, 16 Beav. 385.) Where a bond expressed that an annuity was to be paid on the four usual quarter days, and the annuity was charged by the will of the obligor on his realty in aid of his personalty, an order was made for the payment of the annuity out of a fund in court half-yearly at Midsummer and Christmas. The annuitant died between Lady-day and Midsummer, and her representatives obtained an order for payment of the quarter to Ladyday. (Webb v. Shaftesbury, 11 Ves. 361.) King William the Fourth, by indenture, in pursuance of the stat. 1 & 2 Will. 4, c. 11, granted to trustees, for his consort, Queen Adelaide, an annuity of 100,000l., to commence on the decease of his Majesty, and "continue," "during the natural life of her Majesty," payable out of the consolidated fund," at the four most usual days of payment in the year (that is to say), the 31st March, 30th June, 30th September and 31st of December, by even and equal portions, the first payment thereof to be made at such of the said days as shall first and next happen after the decease of his Majesty in case her Majesty should survive him." His Majesty died on the 20th June, 1837, and on the 30th of June, the trustees received a full quarter's payment of 25,000l. Her Majesty died on 2nd December, 1849. It was held, that the annuity was not apportionable; and Lord Campbell, C. J., observed, "Were it an annuity granted in similar terms between subject and subject, we conceive there can be no doubt upon the subject, and there certainly would have been no apportionment either in the first quarter or the last." (Reg. v. Lords of the Treasury, 16 Q. B. 357, see pp. 362, 363.) Where an annuity was granted to A., during the joint lives of B. and C., charged upon the lands of Blackacre, and payable by two equal portions, on the 1st of May and 1st of November in each year, upon trust to pay the c. 22, s. 2. same to B. during the joint lives of B. and C., and then to C. if she sur- 4 & 5 Will. 4, vived: it was held, that C. having survived B. and died on the morning of the 1st May, was entitled to the entire sum due upon that day. (Robinson v. Robinson, 2 Ir. L. R., N. S. 370.) A tenant for life granted a rent-charge, chargeable on lands, for the life of the grantor, provided the grantee should so long live, with a power of distress and a covenant for further assurance, to a relative as a suitable provision for her, with an apportionment clause in the event of the death of the grantee between two days of payment. The grantor died between the days of payment, leaving the grantee surviving: it was held, first, that, independently of this act, there could be no apportionment. (Leathley v. French, 8 Ir. Chanc. Rep. 401.) Secondly, that the court could not imply an intention that there should be an apportionment on the death of the grantor, having regard to the express apportionment clause on the death of the grantee in the lifetime of the grantor. (Ib.) Where a testator gave an annuity for life and another for twenty-one years, both payable on the usual quarter days: it was held, that a proportional part of both the annuities was payable on the first quarter day after his death. (Williams v. Wilson, 5 N. R. 267.) It has been doubted whether an annuity payable on certain days, as half- Whether the payyearly or quarterly, determinable on the death of the grantor, would come ment must be a within this act, which enables the annuitant to recover the apportioned continuing one. parts, “when the entire portions of which such apportioned parts form part shall became due and payable," because if the annuity ceased by the death of the grantor on any other day than that appointed for payment, the entire portion would never become payable. It was, therefore, recommended that the usual apportionment clause in the grant of such an annuity should be retained. (9 Jarman's Prec. 578, n.) Lord Campbell, C. J., observed, the words in italics contemplate "a case where the party who has to pay will have to pay for the whole period to some one, and not a case where the payment entirely ceascs with the determination of the interest of the person receiving the apportionment, and where the entire portion of which this forms a part never does become due or payable." (Lowndes v. Earl of Stamford and Warrington, 18 Q. B. 439.) A testator, who died in August, 1834, after directing a fund to be formed, by investing the rents of his estates in the purchase of bank annuities, charged it with the payment of 150l. a-year to his wife during her life: it was held, that, though the 150l. was not a continuing payment, the executors of the wife, who outlived the testator between seven and eight years, were entitled to a proportionate part of the 1507, a-year for the interval between the death of the wife and the last preceding yearly day of payment. The act creates an apportionment; but the time for making it does not arrive until another dividend becomes due. (Carter v. Taggart, 16 Sim. 447.) A testator gave an annuity to A. B. for life, no period of payment being mentioned. Under the decree of the Court of Chancery the first payment was directed to be made at the expiration of one year after the testator's death. The annuitant died eight days before the end of the year. It was held, that the annuity must be apportioned, although it was not continued to any other person after the death of the annuitant. (Trimmer v. Danby, 23 L. J., Ch. 979; 2 W. R. 380.) This decision has been followed in Ireland, where a terminable annuity has been held to be apportionable under this act. (Sutton v. Ennis, 18 W. R. 882; I. R., 4 Eq. 325.) Before the passing of this act, if a testator was entitled to the dividends Dividends of stock in the public funds for his life, and he died between the two days when they were due, his executors could not claim any apportionment, but the whole half-year's dividend went to the remainderman. (Rashleigh v. Master, 3 Br. C. C. 99; Pearly v. Smith, 3 Atk. 260; Sherrard v. Sherrard, 3 Atk. 502; Wilson v. Harman, 2 Ves. 672; Amb. 279.) But where a tenant for life of stock died on the day on which a half-year's dividend became duc, it was held, that the dividend belonged to his estate. (Paton v. Sheppard, 10 Sim. 186.) Dividends out of profits, from time to time declared by a commercial |