
    Noble v. Tyler, Adm’r.
    
      Rents not apportionable between the Administrator of a life tenant and the remaindermen, when — Disposal of “annual crops raised by lobor" — As assets of the estate of the deceased, whether severed or not at his death — Sections 6026 and 6027 Revised Statutes.
    
    1. Rents are not apportionable between the administrator of a tenant for life and the remaindermen, where there is no privity and the estate of the latter -becomes an estate in possession, immediately upon the death of the life tenant, and puts an end to the lease made by him.
    2. The administrator of the estate of a tenant for life, or his lessee, is entitled under sections 6026, and 6027, Revised Statutes, to the “ annual crops raised by labor,” as assets of the estate of the deceased, whether severed or not at his death.
    ¿5. M., the owner of a life estate, remainder to certain other persons, on August 15,1892, leased the land to a tenant, to be farmed for a year, for which the lessor was to receive as rent $800. She died Aug. 22,1893. The wheat sown in the fall of 1892, together with the crops of 1893, had all been cultivated and harvested before her death, except the corn which had been cultivated and laid by in July, and was harvested in November. The rent was secured by a note, payable March 1,1894. Held, that the note for the rent is assets of the estate of the deceased life tenant.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Butler County.
    The suit in error in this case grew out of exceptions filed in the probate court by the plaintiff in error to certain items in the inventory of the estate of Marcella McLean, deceased, as filed by her administrator, D. L. Tyler. The exceptions were overruled, and an appeal taken to the common pleas. It, as requested, found the facts, and thereon overruled the exceptions; and the judgment was affirmed by the circuit court.
    It appears from the finding of facts, that Marcella McLean was the owner of a life estate in two certain farms, one of 208 acres and the other of 83 acres, which estate had been devised to her by the will of her father, Elias Ayers, who died March 13, 1885, the remainder being devised to certain of his grand children, Walter Ayers, David Ayers and Bertha Ayers. Marcella died August 22, 1893, testate, leaving the residuum of her property to Agnes Noble; and D. L. Tyler was duly appointed her administrator with the will annexed. Among what is claimed to be assets of her estate are two notes, one for $800, made by John Burch, due March 1, 1894, and given for a year’s rent of the 208-acre tract; and the other for $350, given by Charles McLean, due at the same time, and given for the rent of the 83-acre tract. The leases and the notes were made August 15, 1892, and September 3, 1892, respectively. The administrator, assuming that the rent should be apportioned between the estate of Marcella McLean, the life tenant, and the remainder-men, inventoried each note at half its value; the makers being perfectly solvent. The residuary lega-« tee, Agnes Noble, filed exceptions to this, claiming that each note should be inventoried as an asset of the estate at its full value. The finding of fact in regard to the leasing of the farms and the giving of the notes is as follows:
    “That Marcella McLean held possession of said tract of 208 acres and 83 acres from the death of her father, Elias Ayres until her death, 22nd August, 1893; that on 15th August, 1892, she leased the said 208 acres to John Burch to be seeded in the fall of 1892, and farmed for the year 1893; that Burch seeded about 36 acres in the fall of 1892 in wheat, which was by him harvested in June, 1893, fifteen acres timothy harvested July, 1893, and that in the spring of 1893, he planted about 42 acres in corn on said farm, and it was all laid by as early as July, 1893, but which was not gathered and harvested until November, 1893; that at the date of said lease said Burch gave his note for $800.00 for said rent, payable to Marcella McLean or order, on or before the 1st day of March, 1891; that on the 3rd day of September, 1892, said Marcella McLean leased said 83 acres to Charles McLean (which was to be seeded by him in the fall of 1892, in part, and the balance farmed during the year 1893); that, in the fall of 1892 he seeded on said tract 21 acres in wheat, and that the same was harvested in June, 1893. The balance of said farm he planted in corn in the spring of 1893; and it was all laid by as early as July, 1893, but which was not gathered and harvested until November, 1893; that for the rent for said year 1893, said Charles McLean gave his note for .$350.00, the same payable to Marcella McLean or her order .on or before March 1, 1891; each of said notes was written (,on same piece of paper as the lease. Said two notes so given by John Burch and Charles McLean were in the possession of Marcella McLean at her death and held by her, and came into the hands of said D. L. Tyler as her said administrator, with the will annexed, no part of the same having been paid.”
    
      Millikin, Shotts & Millilkin, for plaintiff in error.
    The general rule as stated in Taylor, Landlord and Tenant, is that the rents which have accrued previous to the death of the lessor, are collectable by the personal representative; those that accrued afterwards, by the heir. 25 Wendell R., 156; 20 Ind., 386; Taylor, Landlord and Tenent, Section 390.
    But this is where the heir and the personal representative both represent the same estate, the one representing the real and the other the personal estate, and the only question was which representative should receive the rent and administer it. Besides we claim that the statute laws of Ohio Section 6026 and 6027,. have settled the rule that the administrator is entitled to the rent whether in the shape of crops or money.
    There is a direct privity between the heir and the administrator. If the administrator receives money he uses it in paying the debts of the estate and thereby relieves the land belonging to the heir.
    The spirit of the law as shown by Sections 6026 and 6027, Revised Statutes, is that the administrator of one who owns an estate for life in the land, and plants and cultivates the crops or rents the same for money rent, is entitled to receive the same and appropriate it to the payment of her debts and be distributed as she directs by her will. There is no reason for making any distinction between grain rent reserved by the life tenant and money rent reserved by her for the use of the land. It is a conceded fact that Marcella McLean had a right to rent the land for money rent and fix the terms of payment. How did it concern the remainderman as to when she would have that rent made payable? 1 Washburn Real Property, 132, Section 3.
    It is significant that the three grandchildren are not claiming any portion of the crops that were raised. They don’t disturb Burch or McLean, the tenants. They are simply endeavoring, through Tyler, administrator, to acquire one-half the money rent the tenants agreed to pay. The law is well settled in Ohio that growing crops are personal estate and do not pass by judicial sale. Cassily v. Rhodes, 12 Ohio, 88; Houts v. Showalter, 10 Ohio St., 125; Albin v. Riegel, 10 Ohio St., 339.
    And this rule applies as well to the tenant’s share as to that of the landlord. The only case we have been able to find in Ohio that bears directly upon the question before the court is, the case of Van Hays, Exr., v. West, 3 C. C. Rep., 65, 2 C. D., 37.
    
      Slayback & Harr, for defendant in error.
    The question under consideration is not one of emblements, but of money rent. We have no statute in this state providing for the disposition of rents which accrue after the death of the owner of real estate; this matter is controlled by the common law as stated in Van Hays, Ex., v. West, 3. C. C. Rep., D., 37,65, 2 C. D., 37, in which plaintiff in error considers precisely in point in this case. Nothing is better settled in this state than that upon the death of a life tenant the right of possession passes at once to the reversioner or remainderman; and Sections 6026 and 6027, Revised Statutes (upon which the entire argument of plaintiff in error is based) plainly recognizes this, for in the absence of these provisions the personal representatives would not even be entitled to emblements.
    These provisions of the statute are intended to secure to the life tenant the right to reap what he sows, not to enable him to deprive the reversioner or remainderman of his heritage by leasing the land for a period beyond his own term.
    For the respective rights of the administrator and the reversioner or remainderman we must look to the rules of the common law, where we find the matter fully settled. Giauque’s Decendent’s Estates, pp. 285 and 286, Sections 26 and 28.
    This statement of law by Mr. Giauque is based upon numerous authorities and decisions, which are cited by the author: Woerner’s Adm’r, Secs. 300, 301; Sohier v. Eldridge, 303 Mass., 345; Fay v. Halleran, 35 Barb., 295; Bloodworth v. Stevens, 51 Miss., 475; 
      Ball v. Bank, 80 Ky., 501; King v. Anderson, 20 Ind., 385; McDowell v. Hendrix, 67 Ind., 513; Loyal v. Caldwell, 23 Mo., 372; Price v. Pickett, 21 Ala., 741; Redfield on Wills, Vol. 3 p 184 Sec 12; citing Morris v. Harrison, 2 Vol. 268; William’s Executors, 736, 737; King v. Anderson, 20 Ind., 385; Sutliff v. Atwood, 15 Ohio St., 186.
    But plaintiff in error argues that, in the case under consideration, the rent “accrued” when the written promises to pay were given by the tenants to the life tenant, Marcella McLean; but that such is not the law was decided in said case of Sutliff v. Atwood, cited above; Millikin v. Welliver, 37 Ohio St., 460.
    If Mrs. Me Lean had been farming this land herself, or if she had leased it for grain rent, most of the crop would have been harvested before her death, August 23, and the owners of the subsequent estate could have had possession of the land from and after her death, subject to the right of the personal representative of Marcella McLean to go upon the land, harvest and remove the emblements, the growing crops, as provided by sections 6026 and 6027.
    But in the case at bar, Mrs. McLean had leased these farms for money rent, for a period of more than six months after the termination of her life estate, during all of which time those entitled to possession were kept out.
   Minshall, J.

The real question in this case is, When did the rent for which these notes were given, accrue? If upon the facts as found, it accrued, in the proper sense of the term, in the life time of Marcella McLean, the notes, to their full value, should have been inventoried as assets of her estate. The lease, in each case, or more properly speaking, the agreement for the occupation and farming of the land, was made, the one August 15, 1892, and the other September 3, of the same year. They gave to the tenant, in each case, the right to seed part of the land in wheat in the fall of 1892, and to farm the land for the year 1893. This is the common way among farmers of renting lands to be farmed for a year — wheat in our climate being sown in the fall and harvested in the following summer. No one would claim, under this letting, either tenant could have sown his tract in wheat in the fall of 1893, with the right to harvest it in 1894, for all his rights in the premises were to end with the harvesting of the crops, cultivated in that year, and the rent then accrued; and would have been payable but for the agreement by which the time was extended to the first of March following.

By an indulgence of the common law in favor of agriculture, incorporated in the statute law of this state, Sections 6026 and 6027, Revised Statutes, one whose estate may be terminated by an event, the time whereof is uncertain, has the right to reap what he has sown, although this may, to some extent, trench upon the occupancy of the tenant of the next estate in remainder or reversion. This, however, cannot be said to impair the next estate; for it is an incident, created by law, of every estate in reversion or remainder — a burthen, if it be one, imposed, as we have said, in the interest of agriculture; for, when the termination of an estate is uncertain, it would greatly discourage the cultivation of the land, if every such tenant must sow at his peril. Hence it is that the right to harvest growing crops, sown and cultivated before the termination of the partícula,.' estate, in no légal sense infringes upon the next estate in possession. Every such estate is created subject to such contingency; and the right is an inch dent to every estate whose termination is not fixed by some definite time. When the time of the termination of an estate is definitely known, the reason ceases, and no such right exists; and this is why we have said, that if either of the renters of Mrs. McLean had sown the land rented to him in wheat in the fall of 1893, he would have done so at his peril, as the termination of his tenancy was a fixed period, limited to the time in which annual crops are usually harvested in the fall.

It therefore follows, as we think, that the agreement for the cultivation of the particular farms of the deceased, terminated in her life time, and the rent agreed to be paid on or before March 1,1894, had accrued, and the notes should have been inventoried at their full value as assets of her estate. The makers of the notes could make no defense to their collection, as they had fully enjoyed, under the agreement and the law, the consideration for their respective promises to pay.

Much confusion has arisen in the case from the fact that the rent did not, by the agreement of the parties, become due until March 1, 1894, about six months after the death of the life tenant, from which it is assumed that the rent then accrued. This would imply that the term, instead of being for a year, was for a year and six months, which is contrary to the fact. The accrual of rent does not necessarily depend upon the time fixed by the parties for its payment. The accrual of rent has respect to the term of the lease. It accrues as the term elapses and is fully accrued when the term is complete. The term and the enjoyment of it is the consideration for the rent; when the term is complete the rent has accrued. If, as claimed, the question depends upon when the rent is made payable,, irrespective <of the time of its accrual, then the next in estate might be .entitled to it any number of years after it had been earned, for any number of years may be given for its payment. It is then evident that the accrual of rent depends upon the lapse of the term for which it is to be paid, and not upon the lapse of the time given for its payment. The latter is a matter of agreement between the parties. If there were no express agreement the rent would become due on its accrual; but, by agreement, it may be made to become due at any time that will best suit the convenience of the parties. Here, by agreement, it was made to become due in six months after its accrual, or, in other words, after it had been earned by the land. Hence the remaindermen have no claim to this rent — it was all earned, or had accrued, in the legal sense, in the lifetime of Marcella McLean, and is consequently assets of her estate, though the notes given for it did not become due until after her death.

It is thought that the case of Sutliff v. Atwood, 15 Ohio, St., 186, sustains the contention of the defendant in error in this regard. All that this case decides, that can be in any way helpful to the claim of the remaindermen is, that the taking of the notes for rent did not change the character of the consideration for which they were given while they remained in the hands of the lessor, un-negotiated; and consequently, a suit on them by the lessor against the lessee, would be in fact a suit for rent. This is not questioned. But there is no such question in this case. The principle, however, on which the case was decided, applied to this case, disposes of any claim made for the remaindermen to any portion of the rent due on these notes. Sutliff leased his dairy farm to Atwood for the term of three years at an annual rent of $500, payable at the end of each year. He transferred the first note to one Quimby, who recovered a judgment upon it, levied on the lease, and purchased it in at the sheriff’s sale, and then assigned it to the lessor, Sutliff. The latter then brought suit on the notes for the rent that accrued after the assignment of the lease to him, and it was held that he could not recover. The ratio decidendi of the decision is, that being in possession of the demised premises under the assignment, his right to rent was compensated by his duty to pay it; in other words, he could not occupy the position of lessor and lessee at the same time. So, in this case, when the life tenant died the estate of the remaindermen, by operation of law, at once became an estate in possession, and they could not demand rent therefor from any other person. Whether they in fact took possession is immaterial; they had the right to it, subject to the right of the administrator of the deceased life tenant, or her lessee, to the growing crops; and we may assume, though there is no finding as to the fact, that they took possession, as possession generally accompanies the right. Therefore having the possession and the right to it, they cannot, in law or reason, demand rent from someone else, for a possession which they themselves have and enjoy.

In Millikin v. Welliver, 37 Ohio St., 460, 468, the corn in question was planted and raised after the death of the lessor, Smith, and so went to the devisees and not to the administrator.

We have examined the cases and authorities cited by the defendant in error, and fail to see how, on the facts of the case, they support his contention. He assumes that the lease did not terminate until the rent notes became due. In this, as we have shown, he is in error. Neither tenant had any right to enter upon the farm, leased to him, after the crops had all been harvested in the usual time. Most of the cases cited relate to leases made by the owner in fee, who died before the termination of the lease. In such cases, the death of the lessor does not terminate the lease, and as there is privity of estate between the administrator and the heir, the rent is apportioned, that which had accrued at the death of the lessor going to the administrator, and that which accrues afterward attends the reversion and goes to the heir or devisee. In some cases the death of the life tenant does not terminate his estate, as in the case of an estate per outer vie. In such cases, and in all other cases, where the death of a life tenant does not terminate an existing lease, there may be an apportionment between the administrator and the remainder-men on the above principles. But no case is produced, and we think no well considered one can be found, where an apportionment has been made between an administrator of the life tenant and the owner of the next estate, taking effect in possession, immediately upon the death of the life tenant. In such cases at common law, where the term had not ended at the death of the life tenant, no rent could be collected — not by the administrator, for the reason that the lessee was deprived of the consideration for his promise,— the possession of the land; nor by the remaindermen, for there is no privity of estate between him and the life tenant’s lessee; and, for the further reason, that rent, in his favor, cannot issue out of lands in his own possession. Whether this is so in Ohio as to the administrator, does not arise in this case; for, as above shown, the tenants enjoyed all they were entitled to under the letting to them and for which they promised to pay the notes in question; and do not, it seems, deny their liability to pay, either to the administrator or to the remaindermen. And it is worthy of note in this connection, that it is admitted that if Marcella McLean had farmed the lands as they were farmed by the tenants, her administrator would have been entitled to the crops raised in the year 1893, under the statute above referred to. It seems then a strange sort of logic by which the conclusion is reached, that having transferred this right to another for a consideration secured by a note, the note would not be hers, and so assets of her estate, without regard to when it was made payable.

The whole confusion, as we have said, arises out of not properly distinguishing between the accrual of rent and the time when it is made payable. It is generally made payable at the lapse of some particular period of the lease, as annually or by the month, and so becomes payable as it matures; and, in all such cases, the time of payment and the accrual of the rent are coincident. But, as before pointed out, it is not necessary that this should be so in order to reserve rent. Time for the payment of rent may be given irrespective of the time of its accrual.

Reversed and exceptions sustained.  