
    Marshall et al. v. Moseley.
    
      Apportionment of Rent.—Parties.
    
    Rent is not apportionable between the executors of tenant for life, and the remainder-men; and this, notwithstanding the tenancy for life is created as a provision for a widow.
    Several persons interested, as tenants in common, in a sum of money in the hands of the defendant, may join in an action for its recovery.
    Appeal from the general term of the Superior Court of the city of Buffalo, where there "was an affirmance of a judgment entered on a verdict in favor of the plaintiffs.
    This was an action for money had and received, brought by the devisees in remainder, under the will of Bela D. Coe, deceased, against the executor and residuary legatee of the widow, to whom the testator had given an estate for life, to recover the rents of the real estate which accrued after the decease of the tenant for life, and were collected by her executor.
    '"'The defendant, who had intermarried with the widow, claimed to apportion the rents for the current quarter, which became due after the death of the tenant for life; and also contended that the plaintiffs could not maintain a joint action to recover the fund in his hands. On these grounds, he moved for a nonsuit, on the trial, which Avas refused, and the plaintiffs had a verdict and judgment; and, after an affirmance at general term, the defendant took this appeal.
    
      Sprague, for the appellant.
    
      Ganson, for the respondents.
   Comstock, C. J.

Mrs. Coe, by virtue of her husband’s Avill, had a life-estate in the premises, out of which the rents in question accrued, and the plaintiffs owned the remainder in fee. She died April 5th, 1855, the leases being then unexpired; on the first of May following, the rents became due for the preceding quarter of a year. The defendant is the executor and residuary legatee of Mrs. Coe, and having collected the rents for- the whole quarter, the principal question in the case is, whether he is entitled to apportion them, by dividing the fiuar^er *into *wo periods °f t-ime, one before and the other after her death, and by retaining in his own hands the portion which accrued before that event. . .

As rent follows the reversionary estate, the law allows it to be apportioned, where that estate becomes divided amongst different owners; this is according to the maxim, “ accessorium sequitur naturam sui principalisThus, if a reversion descend, on the death of the ancestor who gave the lease, and the coparceners or heirs make a partition, the rent will be apportioned in favor of each of them. So, if the reversion be severed by will, or even, by conveyance of the owner, the same result will take place. (2 Platt on Leases 131, 132, and cases cited.) But the same reasons never existed for apportioning rent on the principle of time, where the tenant was bound to pay it at stated periods. The sum accruing between each of the times of payment was a single entire debt, and was due only on the condition precedent of the tenant being entitled to enjoy the premises for the time in respect to which it was payable. If, therefore, a person having a life-estate, with. no power to make a lease to continue longer than during his life, should make a lease for years, reserving rent half-yearly, and should die in the middle of a half-year, the rent, according to the principles of the common law, would be lost for the half of a year. The executor or representative of the lessor could not recover it, because, by the nature of the contract, the lessor was not -entitled to it, except in the sums and at the times specified in the lease. His successor in the reversionary estate could not claim it, for the additional reason, that the reversion was not his, until the lease itself' •was terminated by the death of the life-tenant who gave-it. If the lessee continues to hold afterwards, such holding is necessardy under some new contract with the party on whom the estate has devolved. (Woodfall’s Land, and Ten. 248; 1 Salk. 65; 1 P. Wms. 892; 2 Id. 501, 502; 1 Man. & Gr. 589; 13 N. H. 343; 11 Mass. 493.)

If, however, the lease continues, although, intermediate the days of payment, the reversion passes wholly into new hands, the obligation of the lessee to pay rent continues also. Thus, *in the middle of a quarter, ^ ’ the lessor may convey the whole estate which is under the lease, or it may be sold under execution or mortgage, or he may die, leaving it to descend to his heirs, or he may dispose of it by will. The lease itself is unaffected by these events, and the rent is, therefore, payable as though they did not occur; but it is payable only in the sums and at times specified in the demise. The reversion maybe transmitted-to a new owner, during a period between the days of payment, but such an event does not divide the obligation of the tenant; the accruing rent follows the reversion 'wheresoever that goes, and neither the former owner nor his representative can recover any portion of it. Being recoverable only in a single sum. and not until the prescribed day of payment, the common law gives it to him who is the reversioner atv that time, and no case can be found where a court of equity has adopted a different rule. Says Mr. Woodfall. (Law of Landlord and Tenant 248), “ at'common law, rent cannot be apportioned, but the reversioner becomes entitled to the accruing rent from, the rent-day antecedent to the decease of the tenant for life, whose representative was entitled to the arrearages due at some rent-day before the death of the testator,.or the intestate; for the= law does not apportion rent in- point of time, nor does ■equity.” (See also 2 Greenleaf’s Cruise, p. 116, §§ 44, 45, 46; Ex parte Smyth, 1 Swanst. 337, and note; and other cases cited supra.)

It is true, there are in the English books some cases of a peculiar kind, where, on the death of a tenant for life, before the day of paying rent for the current quarter or ■other period, the rent has been divided between his representative and the remainder-man; but these are all cases in which the lease terminated on the decease of the life-tenant ; either because he had no power to lease, so as to ■affect the remainder-man, or because, if such a power was .given to him, it had been defectively executed, and the lessee, holding the premises until the rent-dajq voluntarily paid the whole to the person who succeeded to the estate. In all the cases of this kind, the lessee was not, at common law, bound to pay at all for so much of the time since the last rent-day, as had elapsed ^before the death of the tenant for life, but having conscientiously paid for the whole time, the person Avho took the estate in remainder Avas held by the courts of equity •to have received for the use of the executor of his life-tenant, so much of the rent as accrued beyond his decease. (Ex parte Smyth, supra; Paget v. Gee, 1 Amb. 199.) In these instances, the rent actually paid Avas apportioned or divided on the principle of time; but cases of this kind have no tendency to show that such an apportionment can be made, when the lease remains as before, notAvith■standing a change of parties entitled to the rents takes place intermediate the rent-days. The lessee, in that case, is bound to pay for the Avhole time, and the reversioner, or remainder-man, takes the rent as an entire sum due to him by the terms of the contract.

The Avell-ascertained rules of the common laAv are, therefore, opposed to the claim of the defendant to retain any portion of the rents received by him for the quarter during which his testator, the life-tenant, died. The leases Avere.not determined by that event, and the plaintiffs, who as remainder-men succeeded tb the reversion, Avere entitled to the Avhole of those rents. It has also been observed, that the courts of equity have never departed from the rule of hnv on this subject. •

It seems hardly necessary to say notv, that there is no legislation of this state Avhich the defendant can invoke in support of his claim. In England, one of the rules of laAv in regard to apportionment of rent Avas abrogated by an act of parliament, passed in the reign of George II. That statute. (2 Geo. II., c. 19), after noticing that, by the existing rule, rents Avere frequently lost, where a lessor having only a life-estate died before or on the day Avhen it Avould be payable, declared, that Avhen any tenant for life should happen so to die, his executor or administrator might recover the Avhole rent in arrear, in case such death took place on the day fixed for payment, or if it happened before that day, then a proportion, according to time, making all just alloAvances, &c. That legislation, with some change in phraseology, has been folloAved in this state. Our statute (1 R. L. 438; 1 R. S. 747, § 22) provides that AAdien a tenant "x"for life, Avho shall have demised lands, shall die before the day Avhen any rent is to become due, his executors' may recover “the proportion of rent Avhich accrued before his death.” In the case provided for, therefore, rent can be apportioned in opposition to the rule of the common laAv, and a recovery had, Avhere, but for the statute, the rent would be lost. But the statute does not include the present case: the leases in question Avere not given by a tenant for life, but by the OAvner of the fee, and the disputed rent Avas not liable to bo lost, because the plaintiffs, succeeding to the reversion, could recover the Avhole of it by action founded on the very leases themselves. The English statute, like ours, Avas enacted to remedy the apparent injustice of the rule Avhich absolved a lessee from paying any rent, where his interest Avas determined betAveen the rent-days, by the expiration of a life-estate on which the lease depended.

More recent legislation in England has gone still further. The-statute of 4 Win. IV., c. 22, after reciting that by law rents due at fixed periods were not apportionable, and after reciting the inconvenience of that rule, proceeds to declare that all rents made payable at such periods, under any instrument executed after the passing of the act, should be apportioned, so that on the termination, by death or any other means, of the estate of the person entitled to the rents, such person, or his representative, should have a nortion of such rents, according to the time elapsed since the last period of payment. By a further provision, the entire rent is to be received and recovered from the tenant, by the person who would be entitled to recover it, if the act had not been passed, and is to be held by him subject to apportionment, which can be enforced against him by suit at law, or in equity. It will be seen, that this statute recognises the old rule, while it declares a new one for future leases, and that it also carefully protects the tenant against more than one action for the entire rent.

We have no such legislation in this state. If we should adopt the principle of that statute, in regard to apportionment, without legislative interference, we should not only change the existing law, but the change must be made without the protection to tenants which English ^statute secures. If we declare rent tobe apportionable in cases like the present, it will' follow, according to our rules of pleading and practice, that each party entitled to a share may sue the tenant to recover it. To illustrate, if the defendant has no interest in the rents now in question, then he cannot retain the portion in his hands; if he has an interest, then, to that extent, he could, under our practice, recover so much as belonged to him, by suit against the tenants, if they had not paid these rents. And I think, that even a notice to the tenants of his claim to a share, would take away from them their right to pay the entire sum to the persons who, as remainder-men, would be entitled to the other share. To conclude, on this point, we find that the rule of law denying apportionment in a case like this, has never been shaken; and whatever may be the arguments, founded in justice or expediency, in favor of a different rule, we think those, arguments should be addressed to the legislature, rather than to the courts.

The life-estate and the remainder in fee, between which the apportionment is claimed, were created by the will of Mr. Coe, by whom the leases were given, and it has been insisted, that we ought to construe the will favorably to his widow, and on that ground allow the apportionment to take place. But we see no room for any construction which will take the case out of the general rule of law. Of course, the life-estate given was intended by the testator as a part, and perhaps the principal part, of the provision made for his widow, but it was given simply as a lilo-estate, with remainder over to the plaintiffs; and it does not appear even to have been in lieu of dower in any other real estate -which he may have owned. The widow became entitled to the rents as incident to her life-estate in the reversion; but as that estate terminated between the periods for payment, the rent accruing, but not yet due, became at once annexed to the estate of those who succeeded her in such reversion. No part of it could be severed at that point of time; to make an exception, in such a case, to the general rule, would be virtually to deny the existence of the rule altogether. It may be well to observe, that rents are unlike annuities, and unlike *the interest of money; they issue out of land, and are a part of the land; they are less capable of division, or apportionment, according to a precise measure of time, because the value of the tenant’s enjoyment may be quite different at different periods of the year, and the value, moreover, may very much depend on the enjoyment for the full time-specified in the lease.

It was also claimed in the argument, that an amicable apportionment of the rents in question was made between the defendant and the other parties interested—they allowing him to retain, without objection, such portion as accrued before the death of Mrs. Coe—and that this arrangement ought to be held conclusive; but we think that nothing 'was done having any legal significance. If the plaintiffs had collected the rents from the tenants, and then, under a mistake of the law, had voluntarily paid to the defendant the share which he claimed, it is quite likely they could not recover the money back. But such are not the facts; the defendant appointed an agent, who collected the entire rents of the quarter for him, and he then divided them according to time, and paid over to the plaintiffs so much as accrued after the death of the tenant for life. The most that can be said is, that they received so much of the fund, without claiming, at the time, any more. I do not doubt, that all the parties misapprehended the rule of law on the subject, but I see nothing in the facts which extinguished the right of the plaintiffs to the whole rent. Their right of action against the defendant .arose, when he received the whole, and nothing afterwards happened which impaired that right; their acceptance of a portion of the sum which belonged to them, without making further claim, at the time, clearly could have no such effect.

The remaining question is, whether the plaintiffs can maintain the action jointly? We are of opinion, that they can. If the rents had not been collected from the tenants, the plaintiffs, to whom it belonged, as tenants in common of the reversion, might have joined in an action to recover it. This rule appears to be extremely well settled; the only doubt suggested by the ^authorities being, whether they could sever in their suits, if they had elected to do so. (Sherman v. Ballou, 8 Cow. 304; Decker v. Livingston, 15 Johns. 482; Decharms v. Horwood, 10 Bing. 526; Martin v. Crompe, 1 Ld. Raymond 350; Hill v. Gibbs, 5 Hill 56.) These authorities will also show that the plaintiffs, having the same common interest in the money Avliich the defendant received, as rent Avliich belonged to them, can unite in their action to recover it out of his hands; and this Ave think is also clear on principle. We are, therefore, of opinion that the judgment must be affirmed.

Clerke, J.

(Dissenting.)—Bela D. Coe, of Buffalo, by his last Avill and testament, bearing date March 13th, 1852, devised to his wife Elizabeth, and to her heirs and assigns, for ever, his dwelling-house and lot of land in that city, Avith the appurtenances, and, for and during the term of her natural life, the premises knoAAm as “ the Mansion House,” and all and several the rents, issues and profits thereof; he also gives to her, for eA-er, his furniture and stock, and the family pew in the First Presbyterian Meeting House. After devising to two other persons some land at Black Rock, near Buffalo, and providing for the payment óf a mortgage on his dAvelling-house, and o.her debts, he bequeaths and devises all the residue of his re.il and personal estate to the three plaintiffs in this aedon.

Some time after his death, his AvidoAV married the defend mt, William A. Moseley. The Mansion House property, Avliich Mr. Coe left to his Avife, during her life, was subject te certain leases executed by him, which were unexpired at the time of Mrs. Moseley's death. The rents of this property were payable quarterly, on the 1st of February, 1st of May, 1st of August, and 1st of November, in each year, except under a supplementary lease upon a portion of the premises, by the terms of which the rent was payable semi-annually on the 1st of November and 1st of May. In fact, however, the rent reserved in this supplementary lease was paid quarterly.

*^"rs‘ ^oe> afterwards Mrs. Moseley, became legally possessed of the premises thus given to her for life, and received the rents which fell due during her lifetime. She died on the 5th of April 1855, and by her will, which was proved on the 11th" of July, following, the defendant was made her sole executor and residuary devisee and legatee.

It will be seen, that she died twenty-five days before a quarter’s rent was due; and the principal question in this case is, whether her executor is entitled to the proportion of the quarter’s rent accruing up to the 5th of April 1855, or whether the plaintiffs, as remainder-men, are entitled to the whole quarter’s rent falling due on the 1st of May 1855.

It will be perceived, that the position of Mrs. Coe, in relation to this property, was not that of an ordinary tenant for life, but that of a widow, whose husband, by careful provisions in his will, endeavored, with but a small exception (the devise made in the second section), that she should enjoy, during her life, the whole income of his estate. He gives her the house in which he lived and died, with its grounds, appurtenances, furniture, books, pictures, his horses, harness, barn and garden utensils, barn-stock; and he also gives her the family pew. This evidently shows that he intended she should continue the family establishment in its accustomed style; ■ and for this he appropriates nearly the whole income of his estate, Avliich he expressly says she shall enjoy" “for and during the term of her natural lifenot until íavo months and five days, or any time, short of her natural life; but for the term, the Avhole term of it. Can any one say, from the entire plan and context of this will, that he intended to have her income cut short, under any contingency? Where is the ground for this supposition? Is it in any principle of law? Is it in any phraseology employed in the will? He intended one thing or the other; he intended either that she should enjoy this income to the very day of her death, or for a shorter period, absolutely or contingently; certainly not absolutely, and I see no possible pretext for saying that lie intended she should have it for a shorter term than that of her natural life, under any contingency whatsoever.

*As I have said, the dwelling-house was given to her to live in, and the income to defray the expenses of supporting the establishment. We must presume, that he expected his wife would expend the income, for this purpose, as it accrued; and, as it became payable, that she would apply'it for the payment of her debts and her current expenses. After the quarter-day previous to her death, she would employ her rents, then coming in, to defray her household and personal expenses incurred to that day, which, probably, required the whole of the receipts to which she was entitled at that time. But if her estate is not entitled to any proportion of the rent accruing in the subsequent quarter, she would have absolutely nothing with which to support her establishment, and defray her personal expenses, for two months and five days. Her money being legitimately expended, and expended in conformity with the wishes of the testator, in maintaining the family establishment up to the 1 fc of February 1855, she would he destitute of resource s to satisfy the wonted expenditure, necessary after that t:me, if she should happen to die one day before the 1st of M ry, following. Surely, he never intended this; at least, we find nothing in the language or scope of the will to warrant such a conclusion.

It will not he denied, if he said in express terms, (hat his wife should have the due proportion of the qu :r er’s rents, if she should happen to die before the expir >n > i of the quarter, that her estate would bo entitled to it. The rule of the common law, contended for h)Tthe rc^o-.i”' ■ it, certainly could not deprive her representative of it. I am just as well satisfied, from the language and tenor of the will, that such was his intention, or, at all events, that 'he contemplated no other intention, as if he had expressly declared it. These considerations, in my opinion, would be sufficient to determine the principal question in this case; at all events, they show the testator’s intent so satisfactorily, that the rule adverted to must be absolute, unbending, and beyond all question imbedded in our jurisprudence, to warrant its application in this case.

Does this ancient rule so positively retain its position *n our **aw’ as produce this effect? Or has it any vitality at all? Or may it not be considered in fact obsolete?

Undoubtedly, by the common law, in England, rent cannot be apportioned in point of time; and the reversioner or remainder-man received the rent accruing on the rent-day subsequent to the decease of the tenant for life, whose representative was entitled only to the arrears due at some rent-day before his death.

This rule originated in feudal times; and it arose, in all probabilit)’, in part, out of the nature of the services which the vassal rendered to his lord, as a compensation for the use of the land, and in part out of the nature of the remedy given to the lord to enforce those services. Those services were, in a great degree, personal and corporeal, accompanied, in rent-service, with fealty and homage. Indeed, from the very name of rent-service, for which, to use the language of Littleton, the lord may distrain as of common right, we find it had always some corporeal service incident to it. This service consisted of certain labor, as tilling the land occupied by the lord himself, following him or doing suit to him, in his courts, in times of peace, and in his armies or warlike retinue, in time of war. It would have been extremely inconvenient, and inconsistent with the usage and polity of the times, to have these services apportionable. If the vassal was bound to render one portion of them to one lord, and a second portion to another, he might, in those turbulent days, when the barons were continually in strife with each other, be compelled to serve two hostile masters, each having equal claims on him, at the same time, and it might have been a violation of his fealty to both, to serve either. The service could not, with any kind of convenience, be severed.

So, with regard to the great remedy by which the lord was able to enforce his claim on the vassal. It was deemed exceedingly oppressive, that the tenant should be subjected to two or more several distresses, of two or more several lords; and, therefore, Coke says, in his note to §'225, lib. II. of Littleton:—“If there be lord and tenant, by fealty and certain rent, and the lord by deed grant the rent in fee, saving the fealty, and *grant farther, by the same deed, that the grantee may distreine for the same rent in the tenancy, albeit a distresse were incident to the rent in the hands of the grantor, and although a tenant attorne to the grantee, yet cannot the grantee distreine; for the distress remains as an incident inseparable to the seignory, for then the tenant should be subject to two several distresses of two several men.”-

These, certainly, are reasons Avhich have no applicability to the condition of society in this country or state, or even modern England; and, I may as well remark here, that many of those ancient rules, Avhich have been incorporated into the common Iuav, are as incompatible Avith our social and political structure, as many of the maxims of the Koran are Avith the genius of Christianity. For this reason alone, they should cease to be part and parcel of our law. The common laAV, Ave knoAv, is not a stiff and inflexible system, immutable, like the Laws of the Medes and Persians; but, its distinguishing characteristic is, th'at. it is pliable, accommodating itself to the circumstances of society; and this characteristic is, in truth, as much a. part of the law as any of its direct and positive maxims. The judges, therefore, are not obliged, before they can pronounce a rule obsolete, to wait for the intervention of the legislature; ivhen the reason for the rule ceases, they have the right to renounce it.

I am not aware of any direct and positive recognition, in the courts of this state, of the rule, to the full extent, for which the respondent contends. He claims that it was an undoubted rule of the common law of England; and the common law, as it existed on the 19 th of April 1775, in the colony of New York, being the law of this state, except so far as it has been altered by the legislature, he claims that the rule is in full force now. The answer to this is, that the reason of the rule has ceased; that it is totally repugnant to our social condition; that it is manifestly unjust; that in its application to many analogous cases, it has been abrogated by judicial and legislative authority; and that it is, in this state at least, obsolete. Formerly, this rule was not confined to rents; anc^ servan*s’ waSes, annuities, *and any payments, payable at stated periods, could not apportioned. But it is, confessedly, no longer applicable, to these cases.

In conformity with this rule, if a tenant for life made a lease for years, and died the day before the rent was due, which was not payable until the last moment of the day upon which it is expressly reserved in the lease, the rent was lost both to the reversioner and the representative of the tenant for life; and the law being so, equity would not relieve. This, however, was expressly remedied in England, by 2 Geo. II., c. 19, § 15; which has been substantially adopted by the legislature of this state. (1 R. S. 747, § 16.) This statute provides “ when a tenant for life, loho shall have demised lands, shall die before the day when the rent becomes due, his executors or administrators may recover the proportion of rent which accrued before his death.” Now, there.was some reason for the application of the rule to the cases abrogated by this statute. The lessor made a lease for a longer period than he had the power to do; and the sudden termination of it, before the expiration of the term, in agricultural leases, would, in most instances, be very detrimental, if not ruinous, to the tenant. Perhaps, at great labor and expense, he planted and sowed and prepared the land for the harvest, and, by the unexpected termination of the lease, he would have no means of paying the rent; by the death of the tenant for life, the land becomes worse than useless to him; it causes him probably a severe loss. In such a case, it would appear equitable not to have required any rent from him. And yet the legislature has interfered, and declared that he must pay the proportion of rent which accrued before the death.

In cases like that now before us, the lessee would not, in the slightest degree, be prejudiced, and no principle of right be violated by the apportionment. The remainder-men would receive benefit from the property from the day on which they became the owners' of it; and the representative of the tenant for life would receive the proceeds of it, to the day in which he had an interest in it. I cannot suppose that the‘legislature would have changed the rule in the one case, and retained it, with all its obnoxious features, in the other, if they considered *that it was still applicable to the latter, or that it had still any vitality. In Paget v. Gee (cited in Burns’ Justice, title Distress), Lord Hardwicice decided in favor of apportionment, in analogy to the statute. The facts were these: tenant-in-tail leased for years, and died without issue, a week before the day of payment of the half-year’s rent; the lessee, on the day it fell due, paid all the half-year’s rent to the defendant, who was the remainder-man; the executor of the tenant-in-tail brought this bill for apportionment of the rent. Lord Hardwicks decided it on two grounds; first, in analogy to the statute; secondly, on the ground that the tenant voluntarily paid the rent, when, in law, he was not obliged to do so. Although, in the latter part of his opinion, he says that he grounds his opinion upon the tenant having submitted to pay the rent, he gives great weight to the first ground; he says, “ were it the case of a tenant for years, determinable for lives, he certainly must be included within the act, though it says only tenant for life; it would be playing with words to say otherwise; these cases show the necessity of construing the act beyond the words; as to the equity arising from the statute, 2 know no better rule than this, equitas sequitur legem; where equity finds a rule of law agreeable to conscience, it pursues the sense of it to analogous cases. If it.does so as to maxims of the common law, why not as to the reasons of the acts of Parliament? Naj, it has actually done so in the statute of forcible entry, upon which the court grounds bills, not only to remove the force, but to quiet the possession.” He remarks, that tenants-in-tail come expressly within the mischief, and that he would be inclined to extend the act to them.

The money, in the case before us, having been collected and in the hands of one of the parties, the question of its distribution is somewhat similar to that in Paget v. Gee. The tenant has nothing to do with the controversy; he cannot be molested by either party; and the court is merely called upon to declare whether one party should have the whole, and the other party no portion of it, although representing the person who owned the land for by the far greater proportion of the period during *which the rent accrued. Whatever the rule of equity may be, I think, we have a right to apply it in an action of this nature. The only respect in which it differs from Paget v. Gee is, that the rent was paid voluntarily, in the latter case, when the tenant was under no legal obligation to pay it; neither party had a legal right to the whole, nor to any part of it. The recipient of the rent could not be said to have received it for the use or benefit of the representative of the tenant-in-tail, without supposing that it was a case within the analogy of the statute, and Lord Hardwicice practically applied the reasoning which I have above copied, to his actual decision. Courts of justice will not interfere to enforce a gratuity, without some semblance of a right, legal or equitable. If, indeed, the tenant had paid the rent to the defendant, in that case, with the express direction that a proportion of it should be paid to the representative of the tenant-in-tail, that would, of itself, be a sufficient foundation for the reason upon which Lord Hardwicke says he grounds his opinion. Nothing of this kind, however, appears in the case; and, therefore, I say, that his reasons must have been, in a measure, founded upon analogy to the statute.

But I am inclined to decide this case upon broader grounds: the inapplicability of the rule contended for to the condition of society here, the fact that it has never been deliberately and expressly recognised, and its obvious hardships and injustice. There is not a particle of reason, founded upon abstract principles of justice, or arising from considerations of convenience or policy, why rents, in cases of this nature, should not be apportioned; and nothing but the pressure of an indubitable current of authority, should constrain us to recognise so anomalous and so technical a rule: When I add these considerations to the manifest intention of the testator, I have no hesitation in saying that the judgment of the superior court of Buffalo should be reversed.

Davies, J., and Bacon, J., also dissented.

Judgment affirmed. 
      
       Remedied by act of 1875, c. 542 ; which, however, has no retroactive effect. Irving v. Rankine, 13 Hun 147.
     
      
       The same point had been decided, in 1855, by the surrogate of New York, in Stillwell v. Doughty, 3 Bradf. 359; and it was followed by Boches, J., at the special term, in 1861, in the case of Fay v. Holloran, 35 Barb. 295.
     