
    Jennie Callicott et al. v. E. M. Parks.
    
    1. Charge on Land. Life-estate. Remainder. Apportionment of burden.
    
    W. died, leaving a will devising his land to L., his widow, for life, with remainder to C. and others. “W.’s estate was declared insolvent, and the land was sold, and bought by L., who enjoyed it for some years, and died. Her title was not good, because of a defect in the proceedings of sale, and after her death the remainder-men recovered the land in ejectment. Thereupon a suit was brought by the representative of her interest to fix a charge upon the land for the money ($5,000) paid by her on her purchase, on the ground that it went to pay off the debts of the estate. The remainder-men insisted that the land should not be charged with the $5,000 paid by L., but only with such an amount as, with six per cent interest per annum from the death of the testator to the time of such payment, would produce the $5,000, the interest not to be included in the charge upon the land. But the chancellor rendered a decree charging the life-estate with interest on the $5,000 after the payment thereof and during the life of the life-tenant (which was accomplished by denying to the life-estate any interest during that period), and charging the estate in remainder with that amount of principal at the death of the life-tenant, and interest thereafter. Held, that the decree of the chancellor was correct.
    2. Same. Life-estate. Remainder. Rule of apportionment.
    
    Where a tenant for life and a remainder-man sell the estate consisting of their united interests, the share of each in the proceeds, in the absence of an agreement, is to be determined by the value of the respective interests at the time of the sale, and the best mode of fixing the value of the life-estate is by the common tables of life-annuities. But where a court is called upon to apportion a burden between such estates, after the termination of the life-estate, it will make the apportionment on the basis of actual enjoyment, by requiring the life-estate to pay the interest of the encumbrance during the continuance of such estate, and leaving to the'estate in remainder the rest of-the burden. Foster v. Hilliard, 1 Stoi'3, 77, and Clyatt v. Batteson, 1 Yern. 404, cited and approved.
    Appeal from the Chancery Court of Tate County.
    Hon. R. W. Williamson, Chancellor, presiding, in place of Hon. J. B. Morgan.
    In 1862, James H. Wilkins died, and by his last will and testament left all of his estate to his widow, Lucinda M. Wilkins, for the period of her natural life, and at her death to Jennie Callicott and others, the appellants herein. Mrs. Wilkins qualified as administratrix of the estate, and acted in that capacity for four years, when she resigned, and an administrator de bonis non with the will annexed was appointed and took charge of the administration. On the 5th of December, 1865, Mrs. Wilkins married E. M. Parks.
    In July, 1867, the estate of James H. Wilkins, deceased, was declared insolvent, and on the fourth day of November, 1867, the land belonging to the estate was sold by the administrator, and Mrs. Parks, nee Mrs. Wilkins, became the purchaser thereof, at the price of $5,000. She was then in possession of the land, and continued to hold the same until her death, in September, 1874. E. M. Parks was then left in possession of the land as the sole heir of his deceased wife. There was some defect in the proceedings of the sale in insolvency, so that Mrs. Parks did not get a good title by her purchase ; and on the 20th of October, 1876, Jennie Callicott and the other devisees of the remainder recovered a judgment in ejectment against Parks for the.possession of this land and for the rents thereof accruing after the death of his wife.
    Mrs. Parks owed no debts at the time of her. death, and there was no administration upon her estate. In 1878, E. M. Parks filed the bill in this cause, claiming that the $5,000 paid by Mrs. Parks should be a charge on the land, because it went to pay off the debts of the estate, and asking for an account to ascertain the amount due upon such claim, and that the land be sold to satisfy the same. An account was stated under the directions of the chancellor, and a decree was rendered charging the land with the $5,000 paid by Mrs. Parks, and interest on that amount after the date of her death, from which was deducted the judgment in ejectment against E. M. Parks for rents received while the land was in his possession, after the death of his wife. From- this decree the defendants below appealed.
    
      T. W. White, for the appellants.
    On what principle is the appellee to be reimbursed for the money paid out by Mrs. Parks on her purchase, and which went to pay valid debts of J. H. Wilkins, deceased? The case of Foster v. Hilliard, 1 Story, 88, is directly to the point. In that case the tenant for life had died, as here. Certain lands in which there was a life-tenancy were sold. The money was all paid to the life-tenant, who enjoyed it during his life. After his death a bill was filed by the remainder-men to recover their share of the proceeds of the sale of the land, claiming it all. Judge Story held, that although the life of the tenant for life had determined, as in this ease, yet the transaction was fixed from the day of sale, and that the share of each was to be determined by the life-tables, notwithstanding the life-tenant was already dead. The objection was made there, as here, that what was once uncertain had been made certain by the death of the life-tenant, and that no tables were necessary to compute what death had fixed, quoting Olyatt v. Batteson, 1 Vem. 404. Judge Story said no, Olyatt v. Batteson is not opposed to this rule. It was decided under the old rule, now exploded, that the interest of the life-tenant is to be fixed at one-third, and he used the following language : “It strikes me, therefore, that the true rule in the present case is to apportion the money between the tenant for life and the remainder-man according to the relative values of their respective estates in the land, unaffected by subsequent events. It is said that the duration of the life of the tenant for life, calculated according to the common tables, was over twenty years, whereas he died in less than four years. Be it so. The event has turned out unfavorably for the remainder-man, as contingent events sometimes do. But the tenaut for life might have lived thirty years, and then the apportionment would have been favorable to him. The fact‘does not shake the propriety of the rule.” He ordered the money to be divided according to the value of the two interests, giving the life-tenant’s estate the benefit of twenty years, when in fact he died in less than four.
    
    
      iShands & Johnson, for the appellee.
    The authorities show that the courts have proceeded upon three different principles in enforcing contribution between life-tenants and remainder-men to discharge an encumbrance or pay off a claim against the whole estate : 1. The life-tenant was compelled to pay one-third of the whole debt charged against the estate. This method has become antiquated, and the courts have abandoned it as unreasonable. 2. The life-tenant contributed “ whatever the present worth of an aunuity equal to the amount of the annual interest would be, computed for the number of years the tenant will live.” The length of life of the tenant is calculated from tables of longevity. 3. The life-tenant was compelled to keep down the annual interest during his life. This was the principle the chancellor applied in this case, and is the one applicable to the facts in proof. The true principle, the one underlying all methods of computation, is that the life-tenant is bound to pay the annual interest during his life on any encumbrance or charge that may rest upon the whole estate. If the mortgageor or encumbrancer enforces collection of his claim during the life of the life-tenant, the remainder-men are not bound to receive the share that should be contributed by the life-tenant in annual instalments, but the amount to be paid by him at' once may be ascertained in the second method above indicated. This, however, would not be the method of ascertaining the share to be contributed by the estate of the life-tenant, should the mortgageor delay enforcing collection of his claim till the death of such tenant. What before was in doubt and uncertainty, and only ascertainable approximately, now is susceptible of the clearest proof. And it is useless to speculate as .to the length of life when it can be accurately measured. 4 Kent’s Comm., side-pp. 74, 75 ; 2 Washb. on Keal Prop., top-p. 197, side-p. 573, sect. 10 ; 1 Story’s Eq. 487 ; ClyattY. JBatteson, 1 Yern. 40.4 ; Swaine v. Ferine, 5 Johns. Ch. 491; Cogswell v. Cogswell, 2 Edw. Ch. 231 ; Stillwell v. Doughty, 2 Bradf. 311.
    
      
       Chalmers, C. J., and George, J., being disqualified to sit upon this case, tlie governor, by authority of the statute, appointed W. L. Nugent and Frank Johnston special judges, who, with Campbell, J., constituted the court by whom the case was heard and decided.
    
   .Campbell, J.,

delivered the opinion of the court.

The life-estate should not be charged with interest accrued on the $5,000 before it was paid. In this suit we are dealing-with the rights of the parties in reference to the $5,000 paid for the land, and are content to charge the life-estate with the interest accrued on that sum during the continuance of that estate.

The chancellor adopted the correct rule, as. applicable to this case, for apportioning the burden of the charge between the life-estate and the remainder. He held that the estate for life should pay the interest during its continuance, and accomplished this result by allowing to the appellee no interest on the $5,000 during the existence of the life-estate. ,

We approve the rule declared by Judge Story in Foster v. Hilliard, 1 Story, 77, which is, that when a tenant tor life and remainder-men sell the estate consisting of their united interests, the share of each in the proceeds, in the absence of agreement, is to be determined by its value at the time of the sale, as fixed by the common tables of life-annuities ; in other words, the respective owners of independent interests are entitled to share in the proportion of those interests according to present value when sold, because they are assumed to have disposed of them on that basis, and the best mode of ascertaining such value is by the tables mentioned ; but when the court is called on to apportion burdens after the termination of the life-estate, it will make the apportionment on the basis of actual enjoyment, and will require the life-•estate to pay the interest of an encumbrance during the continuance of such estate, for then it is not a matter of uncertainty as, to the duration of the life-estate. It does not then depend on expectation, based on life-tables, but has become fixed, and the question is, not as to the value at the time of sale, — which, in case of a sale by the parties, is the inducement of each, and with reference to which it is assumed to have been made, — but the value at the time when the parties are charged with the payment of the money, and that is determined by the facts and not by life-tables.

The case of Foster v. Hilliard, 1 Story, 77, illustrates the rule of apportionment in sales by the parties, and Clyatt v. Batteson, 1 Vern. 404, illustrates that applied when the apportionment is made after the termination of the life-estate, not as the result of a sale by the parties, and therefore made •conformably to their presumed intention, but by the court upon the facts, as matter of justice between the independent, interests, and without regard to any presumed intention.

Reversed and remanded, for a decree to be entered in the court below in accoi’dance with this opinion.  