
    THOMAS P. NILES and JOHN M. NILES, Executors etc., of SMITH SHAW, Deceased, Appellants, v. ALEXANDER CHACE, Respondent.
    
      Apportionment of rent — right of an executor to recover a portion aicrued, but not due, at the time of the testator’» death — by and against whom the action must be brought — 1875, chap. 543.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit."
    Smith Shaw, the testator, died- November 27, 1878. The plaintiffs are his executors. They bring this action to recover for the use and occupation of a farm of the deceased, N the defendant, from April 1, 1878, to the day of the death of the testator. It was proved on the trial that the defendant had occupied the farm for a number of years prior to the death of the testator, and continued to occupy it after the death of the testato', and down to the time of trial. The value of the use from Apri’ first to November twenty-seventh was also proved. No further p»of was given, and the plaintiffs were thereupon, on defendant’s notion, nonsuited. It appeared by the complaint and answer, that th< testator devised the farm to the defendant.
    The court at General Term said: “We tlink-that the learned justice was right in holding that, if there wa/ any tenancy, it must be presumed to be a tenancy by the year, tnder the facts shown. (<Jackson ex dem. v. Bryan, 1 Johns., 322.)
    “ The right to the proportionate part, givai by chapter 542, Laws of 1875, is qualified by the second section if the act. This gives the right of action to the persons who wouldhave been entitled if the act had not been passed, and limits the renedy to a recovery from such persons. The action, therefore, of he executors, in such a case, is against the heir or devisee. In the present instance the alleged tenant is the devisee. Very possibly, in such a case, upon a complaint properly framed, an action might be maintained by the executor against the heir or devisee who had been tenant of the deceased. But such was not the complaint here; nor was there any motion to amend.”
    
      McClellan c& Brown, for the appellants.
    
      MewTcvrk <&■ Chace, for the respondent.
   Opinion by the court.

Present — Learned, P. J., Boardman and Bockes, JJ.

Judgment affirmed, with costs.  