
    David Glover vs. John W. Hearst.
    
      Tenant for Life — Account.
    Tenant for life of a plantation and everything on it, received as an entire mass, and under one devise : Held liable, upon the principles declared in Calhoun vs. Ferguson, 3 Rich. Eq. ICO, to account for the provisions she received, as well as other personalty.
    BEFORE WARDLAW, OH., AT ABBEVILLE,
    JUNE, 1858.
    The testator, Christopher W. Mantz, after directing his executors to sell a tract of land for payment of his debts, and, also, if necessary for that purpose, “ such property as best could be spared from his plantation, devised and bequeathed, as follows:
    “ Item 4th. It is my will and desire, that my plantation be kept up, and that the remainder of my property, after the payment of my just debts, be kept by my beloved wife, Mary P. Mantz, upon my plantation; to be controlled and governed by her, and for her to enjoy all the benefits and profits arising merely from the use of same, after fully supporting and supplying all the wants of the plantation, during her natural lifetime; and here let it be understood, that all future increase will not be regarded as profits, but will remain and be regarded as a part of my estate. To the foregoing part of this item, I wish my executor to give his attention and to render all such assistance in councelling and directing, as may be necessary for the interest of all therein concerned.”
    The will then directed that after the death of his wife, the property be .all sold, and the proceeds divided in the manner and among the remaindermen named.
    After the death of the tenant for life, this bill was filed by her executor against the executor of Chistopher W. Mantz, for account.
    The case came before the Court on exceptions, to the Commissioner’s report, which is as follows:
    This bill was filed by David Glover, executor of Mary P. Mantz, deceased, against John W. Hearst, executor of Christopher W. Mantz, deceased. Upon .appeal, the Court of Appeals decided that, under the will of C. W. Mantz, deceased, Mrs. Mary P. Mantz was a life tenant and entitled to the crop raised on the plantation for the year 1856, and that" the representative of the tenant for life must reimburse from the estate of his testator the executor of C. W. Mantz’s will, for his expenditures for the annual wants of the plantation, and for the capital without interest, during her life, any portion of testator’s estate sold for the payment of debts, not used for this purpose, and received by her; and also, the executor of the tenant for life must account with the executor of her husband, for all such estate of the husband as went into her possession at her husbands death, and not remaining in specie at her death, on the principles declared in Calhoun vs. Ferguson, 3 Rich. Eq. 160, and previous cases not therein overruled.”
    John W. Hearst, qualified as executor of C. W. Mantz’s will, and after the property went into Mrs. Mantz’s possession, supposing himself to be still acting in that capacity, sold some of the crops of cotton raised on the place, and received the proceeds, and made various payments on account of the annual expenses of said estate for several years. The statement of his receipts and expenditures is made with the view of ascertaining the amount to be reimbursed him by the executor of Mrs. Mary P. Mantz.
    In 1852, J. W. Hearst sold cotton of Mrs. Mantz, and received the proceeds as follows:
    
      1852,Sep. Proceeds 7 bales of Cotton..................$249 28
    “ « « 8 “ “ 256 50
    
      “ Nov. 20. «8 “ “ 257 43
    “ Dec. 17. “ 7 “ “ 210 07
    $973 28
    1852. Expended by 1st Return.............................644 37
    18.53, June 13. Proceeds 7 bales...........$225 57
    “ Feb’y 2. “ 7 “ .............205 83-$431 40
    $760 31
    1853.Expended by 2d Return.............................$440 22
    $320 09
    1854.Received nothing and expended by 2d Return, $221 12
    $98 97
    1856. Received nothing and expended....................$43 80
    $55 17
    1857. Received nothing and expended.................$312 00
    Amount due executor, $257 17
    On the 22d April, 1855, Mrs. Mary P. Mantz received from the executor excess over proceeds of property sold to pay debts, the sum of......$111 10
    Interest thereon from the death of Mrs. Mantz in July, 1856, to 6th Nov., 1857.......$9 85 — 120 95
    $378 12
    C. W. Mantz died in December, 1851. In February, 1852, an inventory and appraisement of his estate was had by the executor, and returned to the proper office. Mrs. Mary P. Mantz, in accordance with the will of said C. W. Mantz, took possession of the plantation, and every thing on it used for farming purposes, including a large quantity of provisions, &c., and used the same till her death in 1856, in the month of July. No inventory and appraisement was made of her estate, or of the estate of C. W. Mantz, deceased, remaining at her death, until some time afterwards, in consequence of a controversy between the executor of C. W. Mantz and the executor of Mary P. Mantz, as to who was entitled to the possession of the property till the end of the year. In the latter part Of October, 1856, an inventory and appraisement of the estate of Mrs. Mantz was made by her executor, and returned to the Ordinary’s office, including, among other things, the crop of corn, &c., which was then partly gathered.
    On the 5th November, 1856, an inventory and appraisement was made by the executor of C. W. Mantz, of the property which went into Mrs. Mantz’s possession, under the will of C. W. Mantz, and which remained at her death, including the crop, &c., raised that year, and on the 6th, a sale thereof was made by the executor. In addition to the other property which went into Mrs. Mantz’s possession at the death of C. W. Mantz, and which was turned over to him by the executor of the tenant for life, she also received the crop of provisions, bacon, &c., then on hand, valued at the time of the appraisement at the sum of § 1,321 20, and it is insisted upon by the executor of C. W. Mantz that the estate of the tenant for life must account for the value of the same; and also, for the value of a horse not forthcoming at Mrs. Mantz’s death, which she had sold in her life time, for ninety dollars. In other respects it is admitted that the estate was turned over in as good plight as when it went into possession of the tenant for life, and was substantially the same.
    I am of opinion that the estate of the tenant for life should not account to the remaindermen for the value of the provisions, &c., on hand at the death Mr. Mantz. The testator seems to have intended to give to his wife the use and benefit of the property specificalty for her life, with all the rights and privileges incident to its possession and enjoyment. The pro^ visions, &c., were articles consumable in their use, and the very consumption of them was necessary for the enjoyment of the property by the tenant for life, and the preservation of the estate for the remaindermen. The testator directed his plantation to be kept up, and it can scarcely be supposed that he intended Mrs. Mantz’s estate should he at the expense of supporting it. There was no evidence that the tenarft for life had made merchandise of the provisions on hand at the death of Mr. Mantz, or had made any other than a specific and legitimate use of them, or that her management had been other than prudent and judicious, and indeed I had no evidence of the quantity of provisions on hand, if any, at the death of the life tenant.
    But in reference to the horse sold, I think she ought to • account for its value — ninety dollars. She got the benefit of its sale, or is to be presumed to have done so, and there was no evidence that it was replaced, and that that sum was invested in anything necessary for the farm. At,her death, the same number of horses were not turned over to the executor of the testator, and there was no evidence that any of those that went into her possession had died. If, however, the respective money value of the horses, at the dates of the death of the testator and the tenant for life, should be the measure of her accountability, her estate should not he held responsible for that sum. At the death of testator the value of the horses and mules, as appraised, amounted to $606 00. At the death of the tenant for life they were sold for $815 00, most of them being the same. The value of the estate, received by the tenant for life, was appraised at $1,846 88, exclusive of the provisions, &c. At her death the property delivered to the executor of testator amounted to $1,970 10, being an excess of $123 22; but as most of the property delivered to the executor of C. W. Mantz, and sold by him, was the same which had been received by the tenant for life, I think her estate ought to account for the value of the horse not forthcoming.
    J. W. Hearst, as executor, sold the crop which had been raised on the place in the year 1856, on 6th November, 1856 —due 6th November, 1857. Its value, as appears from the sale bill, was $1,824 26, which has been decreed to belong to the executor of Mrs. Mantz; and the accounts between the two estates will stand thus :
    Amount due by J. W. Hearst, executor................$1,824 26
    “ due to executor of C. W. Mantz, (ante)...............................$378 12
    Amount due to executor, value of horse sold................................ 90 00 — $468 12
    Amount due by estate of C. W. Mantz to estate of Mary P. Mantz, 6th Nov., 1857.............$1,356 14
    But should the view I have taken, as to the accountability of Mrs. Mantz’s estate for the provisions, &c., which went into her possession at her husband’s death, be erroneous, and her estate be chargeable with the value thereof, then the account will stand as follows, viz:
    Amount due by executor of C. W. Mantz, being the value of the crop of 1856, sold by him, and decreed to belong to the estate of Mrs. Mantz.......................................$1,824 26
    Amount due executor of C. W. Mantz, (ante) ..........................................$378 12
    Price of the horse sold by Mrs. Mantz.... 90 00
    Value of provisions consumed, &c.........1,321 20 — 1,789 32
    Balance due executor of Mary P. Mantz, 7th Nov., 1857......................................................... $34 94
    The decree is as follows :
    Wardlaw, Ch. This case is presented for judgment by exceptions to the Commissioner’s report on the account ordered by the decree of the Court of Appeals. This report, supplied where needful by the report on exceptions, states the fact clearly and succinctly, and discusses the principles involved fully and ably, so that all statement and much discussion on my part are rendered superfluous. I adopt and confirm the conclusions of the report in all particulars, except as to the liability of the estate of the tenant for life to account for the provisions, consisting of bacon, corn, oats, lard, fodder, &c., received by the tenant when she took possession. Indeed no other point was seriously contested before me; for the plaintiff abandoned the exception as to the gin, and insisted on the matter of interest only in the alternative that commissions claimed by the defendant were allowed; and as to these commissions I approve of the Commissioner’s reasoning and conclusion.
    The Commissioner was directed by the Court of Appeals to state the account “ on the principles declared in Calhoun vs. Ferguson, 3 Rich. Eq. 160, and other cases not therein overruled.” The case named discusses the liability of the representatives of the tenant for life in two aspects, first, when the bequest to the tenant for life is specific, or in such terms as exhibit the intention of testator that the estate shall be enjoyed in specie; and, secondly, where^ the bequest is residuary, or the whole mass of the estate is conferred on the tenant for life by one entire gift. Without adverting to ^he distinctions in the subdivisions of these two classes, it is sufficient to remark that the present case belongs to that class where the entire mass of property is bestowed by one gift. And as to this class Calhoun vs. Ferguson explicitly recognizes the general authority of Patterson vs. Devlin, McMul. Eq. 459, and Robertson vs. Collier, 1 Hill. Ch. 370, and affirms their doctrine that “ in such a case, the perishable articles cannot be considered as belonging absolutely to the tenant for life; neither can they be sold, because they are necessary for the preservation of the estate. The tenant for life must, therefore, be considered as a trustee for the remain-derman, and must preserve the estate with all its appurtenances in the situation in which he received, it. He will be entitled to the increase of the stock and the rents, and profits of the land; but he must keep up the stock of cattle, horses, provisions and implements of husbandry in the condition in which he received them; for although some of the articles may be consumable in the use, and others are wearing out, yet, when taken all together, being reproductive, the estate must be made to keep up its own repairs.” The Court proceeds to reason that in these two cases the doctrine may have been misapplied in extending the liability of the tenant for life beyond faithfulness as a trustee in the management of the estate generally, to liability for preservation of all particulars of the estate in the condition in which it was received. And in the particular case, which was like the present in the form of the bequest, adjudged that the representatives of the life tenant were not liable for an accidental deficiency of the crop of provisions in the year in which the tenant for life died, when general fidelity as a trustee was established, and the estate as a whole was turned over to the remaindermen in as good plight and condition as when received. I thoroughly approve the case of Calhoun vs. Ferguson, but I think it was not meant to decide generally that the tenant for life of an estate given in mass was not liable for provisions. What I suppose to be the error of the Commissioner, is in applying speculative remarks in that opinion, concerning specific bequests of particular portions of estate consumable in the use, to a different subject and class where perishable or consumable articles are given as appurtenances of a whole estate by a single donation. In the instance under consideration, there was no accidental 'deficiency of crops in the last year of the tenant for life; on the contrary, a crop of provisions was made, far exceeding that made in the year when the interest of the life tenant began.
    To allow the estate of the tenant for life to retain the crop of the year when her estate commenced and that of the year in which she died, would be doubling the advantage intended by the Act of 1789 to life tenants. I am of opinion thaMhe plaintiff must account to the defendant for the provisions received by Mary W. Mantz, according to quantity, and unaffected by the appreciation or depreciation which the lapse of time and the change in the affairs of the commonwealth may have produced.
    It is ordered and decreed that the report be recommitted to the Commissioner, to be corrected as to the provisions received by Mary W. Mantz, and that in all other respects the report be confirmed.
    The complainant appealed and now moved this Court to reverse so much of the decree as overrules a part of Commissioners report, allowing the complainant the crop made during the year the tenant for life died.
    1. Because, by law, the whole crop belongs to the representatives of a deceased life tenant.
    2. Because in this particular case, the money, and not property, is bequeathed to the remaindermen.
    
      Thomson, Fair, for appellant.
    
      McGowan, contra.
   Per Curiam.

This Court is satisfied with the decree appealed from; and it is ordered, that the appeal be dismissed.

Johnston, Dunkin and Wardlaw, CC., concurring.

Appeal dismissed.  