
    BIDWELL v. GREENSHIELD.
    
      Buffalo Superior Court; Civil Trial Term,
    
    
      March, 1876.
    Will.—Bemainder.—Annual Charges.—Apportionment.
    The will of the husband gave the use of his real estate to his widow for a term of years, remainder in fee to his children ; the widow continued to occupy after the term expired, some of the children living with her, but her dower was not assigned or admeasured. In an action by some of the children for a partition,—Held, that the taxes accruing during the term were' chargeable upon, the dower interests, but the taxes levied after the term expired, were to be paid out of the fund.
    Action of partition, tried before Sheldon, J.
    This was an action for the partition of real property. John Greenshield died in 1863, at Buffalo, leaving a will, bearing date, January 16, 1863, which was duly proved. He gave and devised to his wife Eliza, all his real estate and household furniture, to be used, occupied and enjoyed by her, for and during the space of thirteen years, from and after the date of the will; remainder in fee to his children and heirs-at-law, to be divided equally among them, share and share alike. He further directed that all the rest of his personal estate should be disposed of by his executors, and that they should put out the proceeds at interest, to create a fund, the interest of which should be used, first, in the payment of all taxes and other matters which might become a charge or lien upon the real estate; and secondly, in the necessary support of his family. He also directed, that if the interest of the fund should not be sufficient to pay the taxes and liens, the executors should use so much of the fund as was necessary to satisfy the same. He requested that his family might continue to remain together and occupy the real estate until his daughter Kate should arrive at the age of fourteen years. The will also provided, that in case the executors deemed it necessary for the support and maintenance of the family, a part of the fund might be used by them for that purpose, and when his youngest child Kate arrived at the age of fourteen, the fund so created, if any remained, was to be divided among his heirs-at-law, share and share alike.
    It appeared that the devisee Eliza Gfreenshield has continued in the occupation of the premises from the time of the decease of her husband; that the fund attempted to be created by the will, amounted only to $237.84, out of which the executors paid about $75 upon debts of the deceased, and the remainder was used in payment of taxes. That dower has never been assigned to the widow by the heirs, and that about $600 in amount of taxes and assessments now remain unpaid upon the property. The plaintiffs and defendants, except the widow Eliza, are the children of the deceased, and each entitled to an equal one-fourth part of the property, subject to the dower rights of their mother, and own no other land in common, and the estate sought to be partitioned is a loto in Buffalo, which cannot be divided, and has a dwelling-house thereon.
    The plaintiffs claimed that the amount of the unpaid taxes should be deducted from the dower interest
    
      of the widow ; but the defendants insisted they should be paid by the whole property, and this was the main question submitted.
    
      George Wing, for plaintiff.
    
      S. B. Porter, for defendants.
   Sheldon, J.

The testamentary provision for the defendant, Eliza Greenshield, was not in lieu of dower ; if it was so intended, the intention failed for the reason that it was not expressly declared so to be, as is required by the well-settled rules of law upon that subject. And the action proceeds upon the admission that upon the termination of her life estate, the right of dower still remained, and that the owners in fee took the remainder subject to that right. The possession of the widow to January 16, 1875, must be considered as having been that of a tenant for years, and it is a rule of general if not of universal application, that it is incumbent upon the tenant for life or for years to pay all taxes assessed upon the lands subject to the tenancy. So that, unless there is in this case something to take it out of the rule, the tenant for years was liable to pay all taxes and assessments accruing during the tenancy. If she did not pay, the heirs or remainder-men could pay, to protect their estate, and recover the amount from her in an action at law, or, as in case of waste permitted by the tenant, they probably could procure a receiver to be appointed of the rents and profits, who would pay or care for the property.

The defendants contend that the testator intended that his estate should bear the burden of all these taxes, and that the tenant should enjoy the estate for the years mentioned without charge. This may be so, and it is evident that he expected the provisions made for that purpose would accomplish that result. But he went no farther than to direct the creation of a fund out of his other estate. Had he stated that in case of the fund- failing, the property devised for years should pay the taxes, virtually diminishing the value of it to the heirs or remainder-men, the parties would be obliged to submit to such declared will. That he endeavored out of other property to create such a fund, is no evidence of an intention to charge this property with the payment of the taxes. The endeavor so to do, was an additional gift or bequest in favor of his wife ; without it, she would be required to discharge those liens; with it, if it had substance and accomplished the purpose, she would be benefited. It would seem that the testator did not anticipate the exigency that has occurred; but the proof shows that all Ms other estate has been consumed for the payment of Ms debts, and in payment of the taxes as far as it was sufficient so to do.

I think, that as far as concerns all taxes and assessments levied before January 16,1875, it was incumbent upon the tenant for years to satisfy them, and that the amount unpaid remains equitably chargeable upon her dower interest.

When the tenancy for years expired, the situation of the parties changed. Her dower was not assigned, and she had no estate in the lands of which her husband died seized until assignment of her dower. The title went to the heirs, under the will, and they had and still have the undivided seizin. When dower is assigned, the widow becomes seized of a freehold estate in the portion allotted to her. The fee simple remains in the heir, and although, in point of tenure, the doweress holds of the heir, or, as in this case, of the remainder-men, yet her claims and rights are paramount to the heir. Her estate is a continuation of that of her husband, and her rights were such that could not have been defeated or affected by any will or disposition by the husband. When this occurs, the tenant in dower, being so seized of a freehold estate for life, that estate is necessarily subject to all the incidents of other estates for life. If the estate was charged with an incumbrance, she would be bound in equity to keep down the interest out of the rents and profits (4 Kent Com. 74). The object of the rule is to make every part of the ownership of real estate bear a ratable part of an incumbrance thereon, and to apportion the property equitably between the parties in interest when there is a possession ; and therefore the tenant for life is bound to contribute during the time of his enjoyment of the estate. The tenant for life, upon the same principle, is bound, out of the rents and profits, to keep down all incidental charges upon the land, which accrue during the continuance of his estate, as for repairs, taxes, and the like (2 Bouvier’ s Inst. 229 ; Whyte v. Mayor, &c. of Nashville, 2 Swan [Tenn] 364). Many of our States have statutes declaratory of the law. The statute of our State, declaring the effect of the admeasurement of dower and the recovery thereof (2 Rev. Stat. 491, § 18), provides, that the widow shall hold the same during her natural life, subject to the payment of all taxes and charges accruing thereon subsequent to her taking possession. This makes her liable for the taxes upon the premises assigned or admeasured to her, a rule founded in justice, and which has long been engrafted upon our statute law.

But this rule of law has no application to this case. Her dower was not assigned to her within the forty days of quarantine (2 Rev. Stat. 488, § 1), nor has she applied for its admeasurement. The plaintiffs, as some of the remainder-men, apply for partition, but until that is accomplished, either by a strict partition, which is impossible, or by a sale, which must be the result here, the widow’s rights are not to be diminished or impaired. The onus of discharging the incidental expenses, such as taxes, &c., was changed when the tenancy for years expired. That she remained in possession, created no liability on her part and no obligation of any nature. Her possession was of a nature paramount to the heirs or remainder-men, and she could not be ejected.„ The estate was not hers, and she was a mere occupant; she had no right or title to the land, or to one part of it in preference to another. She had a right of dower in the whole of it, which, when recovered by her, or admeasured to her, is a right to the use for life of the one-third part of it, but what that third part may be, depends upon the assignment or admeasurement of it, - and when that is made, if it could be made in this case, she claims and is in under her husband. It is true, she was an occupant, but some of the heirs-at-law or remainder-men were occupants also, and the legal title was in all of them (Beasson v. Yancey, 1 Dev. Eq. [N. C.] 77).

My conclusion is, that as to the taxes and assessments levied since January 16, 1875, they are to be paid out of the fund, and not to be deducted from the computed value of the dower.

Unless the parties agree upon the provisions of a judgment conforming to the above suggestions, and upon the value of the dower interest, so that a final judgment can now be entered, there must be a reference to the clerk to take proofs as to the taxes, value of dower, &c., and report the same for confirmation.  