
    Maria J. Spencer v. Nathaniel Lewis.
    At common law every one who has an uncertain estate or interest in land, if his estate is determined by act of God before severance of the crop, is entitled to the whole as emblements, or it goes to his executor or administrator. If, therefore, the husband of a tenant for life is in possession and tills the land, and she dies before the crop is gathered, he takes the whole as emblements, and it is not a case for apportionment under the statute, which only applies in cases of demise, as where the tenant for life has rented out the land, and his life estate determines during the tenancy.
    A case stated. James Spencer, by his will, devised a tract of land in Little Creek Hundred to his wife, Celia Spencer, for the term of her life, and after her death to Maria J. Spencer, the plaintiff, in fee. Celia Spencer, the devisee for life, afterwards married Nathaniel Lewis, the • defendant, and she and her said husband were in possession of the said land and residing upon it, when, on the 7th day of October, 1854, the said Celia ,died, there then being a crop of Indian corn growing on the ground, planted. and tilled by Nathaniel Lewis, the defendant.
    The plaintiffj the devisee in remainder, demanded a share of the crop of corn for that year, as a casé for apportion- . ment of rent, under the act of Assembly;; Revised Code, chap. 120, sec. 15, pp. 422, 423; and the question' submitted to the Court was, whether she was entitled to a share of ' the crop for that year, or the defendant, as the husband of the devisee for life, was entitled to the whole of it, as emblements. If the Court should be of the former opinion, judgment is to be entered for the plaintiff", but, if not, for the defendant.
   The Court

gave judgment for the defendant. It is not a case for apportionment of rent, under the act of Assembly, because there was no demise or renting of the premises. The husband of the devisee for life was in possession and residing with his wife on the land at the time of her death, in October, 1854, and planted and tilled the crop for that year; and was therefore entitled to the whole of the crop upon her death, as emblements. The rule of law being that “ every one who has an uncertain estate or interest in land, if his estate determines by act of God before severance of the crop, shall have the emblements, or they go to his executor or administrator;, as if a tenant for life sows the land and die before severance. So if a man seized in right of his wife sows, and die before severance, his executor shall have the emblements; so if the wife die before severance the husband shall have them.” 2 Com. Dig. Biens (G. 2), p. 141, Co. L. 55 b. This principle of law is only changed and modified by our statute in eases of demise or renting, by such persons, and the rule for apportionment only applies in such cases; and not where the person seized of the uncertain estate is in possession and tills the' land, and dies before severance of the crop. "

C. S. Layton, for plaintiff.

Moore, for defendant.  