
    Mary Priester, Respondent, v. Friedericka Hohloch, as Administratrix, etc., of Jacob Priester, Jr., Deceased, Appellant.
    
      Lease reserving, the rent accruing after the lessor's death to Ms widow — it gives her no right of action therefoi'— the rent passes to the heirs of the lessor dying intesiate.
    
    
      A provision in a lease that, in the event of the death of the lessor before the expiration of said lease, the rent for the unexpired term shall be paid to the lessor's wife, who was not a party to the lease, and who, so far as appeared, /gave no consideration for the promise, is invalid and will not support an action / by the widow for rent accruing after the testator’s death.
    Where the lessor dies intestate the right to such rents vests in his heirs at- law, and his administrator, as such, has no interest therein.
    
      Appeal by the defendant, Friedericka Hohloch, as administratrix' etc., of Jacob Priester, Jr., deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 24th day of October, 1901, upon the decision of the court rendered after a trial at the Saratoga Special Term overruling a demurrer to the complaint.
    This action is brought by the widow of a deceased lessor to recover rent reserved in a lease executed by him prior to his.death: The complaint, in substance, avers that the plaintiff’s husband leased to Jacob Priester, Jr., his farm for the term of five years from' January 25, 1897, for the annual rent of $500, payable October first in each year; that, by the terms of such lease, it was further provided “ that in case of the death of said lessor before the expiration of said lease, that the rent for the unexpired term should be paid to the wife of said lessor; that in and by said lease the rent for the unexpired term after the death of said lessor was duly assigned to plaintiff, who was the wife and is now the widow of said lessor, and by the terms of said lease and the death of said lessor, plaintiff became and now is the owner of the rent which became due under said lease on October 1st, 1900.” It further avers that such lessee entered under such lease on January 25, 1897, and that he died January 2, 1898, intestate, and that this defendant is his duly qualified administratrix; that the lessor died intestate December 22, 1898; that on October 1, 1900, there became due “ under the terms of said lease,” from the defendant as such administratrix of said lessee, to the administrators, successors or assigns of said lessor, the sum of $500 ; that the administrators of said deceased lessor, on December 4, 1900, for value received, sold and assigned to plaintiff the said lease and all moneys due and to grow due thereunder, and all their rights and claims therein and thereunder. It further avers that the lessor was the owner in fee of the said prem-1 ises, and that the plaintiff, as the widow of said deceased lessor, has a dower interest in the premises so leased. It further avers a proper demand upon the defendant, as administratrix of said deceased lessee, for the $500 of rent so becoming due on October 1, 1900, and that she has rejected the claim and refused to pay it; the complaint then prays judgment for a recovery of the same.
    
      The defendant demurred to such complaint on the ground that it .does not set forth a cause of action. The court at Special Term overruled such demurrer, and from the interlocutory judgment entered upon such decision this appeal is taken.
    
      Hiram C. Todd and Edgar T. Brackett, for the appellant.
    
      John Foley, for the respondent.
   Parker, P. J.:

The theory that the plaintiff acquired the right to maintain this action as the assignee of the administrators of her deceased husband cannot be sustained, for the reason that such administrators never themselves acquired any right to the rent in question. It is rent /accruing for the year beginning January 25, 1900, and the lessor had been dead more than a year prior to that date.-. Unless the plaintiff’s claim, that she took this rent under the terms of the lease, can be sustained it passed with the title of the farm to the heirs of such lessor, and they alone could collect it. The administrators, as such, under the statute took no interest in it (Fay v. Holloran, 35 Barb. 295), and I understand that the plaintiff’s counsel does not now ui’ge any such claim upon us.

The averments in the complaint that, by the lease, this rent for the unexpired term was assigned to the plaintiff, and that, by its terms, upon the lessor’s death, she became the owner of this rent, can be considered as conclusions of law only. Ho provisions of the lease are given except those above cited, and the plaintiff’s rights, if any, are given by that provision. ...

. Does such a provision give to the wife a right of action for the rent in question ?

It cannot be construed as a gift to her of such rent, for the one sufficient reason, if for no other, that there is no delivery to her of the thing given, either actual or constructive. 3STo effort at a symAbolical delivery is attempted. - Her whole interest rests upon a mere ^promise, which becomes operative only after her husband’s death,

-- It cannot be deemed a trust created for her benefit, for the reason that it does not- assume to put the title to such rent in any person as Ntru'stee for her. The relation of the lessee is but that of a debtor for the rent as it accrues. The fund, upon which it is claimed a trust is impressed, was not in existence when the lease was executed. It could not come into existence until after the lessor’s death, and it might never come ■ into existence. No words importing a trust, or indicating that the lessee had any purpose of assuming such a position, appear in the lease.. As to so much of the rent as might accrue after the lessor’s death, the lessee agrees, as a debtor, to pay* it to the wife; but surely we cannot reasonably construe such lan-' guage as an undertaking on his part to be liable to account to her as a trustee for the same, nor as indicating an intent, on the part of either, that he should do so. It is to be noticed that there is no claim of any indebtedness from the husband to the wife, and, in cases of “ voluntary settlements or gifts, the court will not impute a trust where a trust was not, in fact, the thing contemplated.” (Young v. Young, 80 N. Y. 438.) And no exception to this rule is made in favor of a wife or children. (Id. 437.) (See, also, Sullivan v. Sullivan, 161 N. Y. 554, 558.)

Moreover, it is plain that this provision in the lease amounts to nothing more than an attempt to make a voluntary disposition of a' portion of the lessor’s property, for the benefit of his widow, after his death. Had the lease contained no provision as to the payment of rent, save that it be paid on the first of October annually, it would be payable to the lessor for the whole term. In the event of his death, all rent that accrued afterwards would be payable, under the statute, to his heirs. The provision in question seeks to change the statutory succession; to divert such rent from the heirs to the widow. It operates in no other way. The promise to pay the widow is not operative until after the death of the lessor, and she neither acquires any interest nor is there any that she can acquire until after such death. The lessor, during life, parts with nothing; on the contrary, he is to have the entire rent during that period. The promise, therefore, is clearly in the nature of a will, or a testamentary disposition (Matter of Diez, 50 N. Y. 88, 93; Gilman v. McArdle, 99 id. 452, 461), and hence is inoperative because not properly -executed.

Being inoperative on that account, of course no action can be maintained upon such promise. Hence the demurrer to her complaint should have been sustained.’ The interlocutory judgment must be reversed, with., costs, with leave to the plaintiff to amend upon the usual terms.'

All-concurred.

Kellogg, J. (concurring) :

The plaintiff cannot maintain an action on the lease for the reason that she is not a. party to the lease- and there is no consideration for the promise to pay rental to her. If she acquired any property right through the terms of the- lease, she did so at the time the lease was executed and such property right could not be subsequently ^destroyed without her consent. The contingency of payment of rental, to her. only in case she should survive the lessor does not. affect the legality of the promise; it is only a measure of the property interest intended to be vested in her. The bare fact that plaintiff was the wife of the lessor is not a sufficient consideration to support the promise for her benefit contained in the lease.

This seems to be the conclusion reached in the following cases : Lawrence v. Fox (20 N. Y. 268); Durnherr v. Rau (135 id. 219); Buchanan v. Tilden (158 id. 109). And for the reasons here stated, I concur in the reversal of the order.

Smith, J., concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with usual leave to plaintiff to amend on payment of costs.  