
    GEORGE F. ALLEN, JOHN W. ALLEN, PAMELIA HARRIS AND HER HUSBAND, WILLIAM A. HARRIS, AND NANCY FOSTER, vs. CATHARINE BAYLISS AND HER HUSBAND, BUCKLER BAYLISS, MARY ANN COYLE, AND JOHN F. COYLE.
    In Equity. —
    No. 1375.
    Where the husband of one of the tenants in common of real estate had been in the receipt of an undue share of the rents and profits in his life-time, but who died after the bill was filed for an account, his surviving wife cannot be charged with the amount of such rents and profits so received by her husband.
    STATEMENT OE THE CASE.
    The bill was filed by complainants against the defendants, claiming that they were joint heirs with defendants of one Catharine Anderson, deceased, who died seized and intestate of the real estate mentioned and described as lying and being in the city of Washington.
    The bill prayed for a partition or sale of the property, and also án account of the rents of the same and a fair distribution. A decree was entered in favor of the complainants. Buckner Bayliss, the husband of the defendant, Catharine Bayiiss, had died before any decree was made in the case. Under this decree the property was sold, and the whole of the proceeds were applied to the payment of the rents and profits found due to complainants, leaving a balance still due complainants from defendants, on account of rents, amounting to $1,890.26.
    It also ought to be stated that Mrs. Bayliss’s share of the rents had been collected by her husband, and there was no evidence tending to prove that she had ever received any part of them.
    On the 21st of March, 1873, the cause was again referred back to the auditor, to ascertain and state an account by whom and in what proportion, if any, the amount referred to above should be paid to said complainant by said defendants, or either of them.
    
      On the 21st of March, 1874, the auditor filed his report on last reference in the court, stating “ that said balance is due from Catharine Bayliss, Mary Ann Coyle, and John F. Coyle, defendants in said cause, said balance to be paid by said defendants ratably; that is to say, each defendant pays one-third, the three several amounts bearing interest from November 1,1870, at which time said balance was first ascertained to be due, at the rate of 6 per cent, per annum until paid.”
    No exceptions to this report were filed.
    On the 2d day of June, 1874, the court passed a decree that complainants have judgment and execution against Catharine Bayliss for $630.08, also against Mary Ann Coyle for $630.08, and also against John F. Coyle for $630.08, with interest on each amount.
    On the 8th of September, 1874, over two months after the ratification of said reports and passing of the decree of 2d of June, 1874, said defendant, Catharine Bayliss, by her petition, prayed an appeal to the general term from said decree rendered by the court at special term on 2d of June, 1S74.
    The question presented by the appeal is whether a widow is liable for an excess of the rents and profits of her real estate collected by her husband during his life-time.
    
      William J. Miller for complainants :
    There is no evidence on file showing that Mr. Bayliss did or did not pay to Mrs. Bayliss and the others the rent collected by him, and the same may be said as to rent collected by John F. Coyle, the codefendant.
    The presumption of law would be that the auditor did take evidence to.satisfy himself that the property was occupied by the defendants, Mrs. Bayliss and the Coyles, or the by Mr. Bayliss and Mr. Coyle, were paid over to Mrs. Bayliss, rents were received by them, or that the rents, when collected Mary A. Coyle, and John F. Coyle; in fact, the auditor in his report charges Mrs. Bayliss, Mary Ann Coyle, and John F. Coyle with receiving the rent, and says they must pay each one-third thereof to complainants.
    If this be true, then we contend and ask the court to hold:
    
      1st. That, if a woman takes possession of real estate, claiming title as heir, and enjoys the same either by occupancy or receiving the rents thereof, and then marries and still continues in possession, claiming as heir, and receiving the rents thereof by her husband, until another is proved to be coheir with her in the property and rents thereof, then she should be held liable to her coheir for the rents.
    In this case Mrs. Bayliss (with her sister and brother) went into possession of the property before marriage, claiming as heirs to Catharine Anderson, enjoying the property by occupancy or receiving the rents thereof, and after marrying still enjoying the property by occupancy or by receiving the rents thereof through her husband, Mr. Bayliss, until the decree in this cause making her and the others account to complainants for the rent.
    We respectfully submit the decree against Mrs. Bayliss should be affirmed.
    
      Walter S. Cox for Mrs. Bayliss:
    Defendants’ share of proceeds was applied to the rents and profits found due to complainants, leaving a balance of $1,890.20.
    It was referred to the auditor to state in what proportions this was to be borne by defendants. He reported that each of the three defendants, Mary Ann Coyle, John F. Coyle, and Catharine Bayliss, should be chargeable with one-third, or $630.08; and the court thereupon decreed payment of that amount by each.
    From this Mrs Bayliss appeals, on the following grounds, viz:
    1. As a married woman, whether owning the property or in possession claiming the title, she would not be entitled to the rents, but they would inure to her husband.
    As she was not entitled to them, she ought not to be charged with them, unless it appears that she actually received them.
    2. The only evidence as to receipt of the rents is that the widow and children of Francis Coyle lived on the property for some years together, and afterward the rents were collected by B. Bayliss for the widow, Mrs. Matilda Coyle, his mother-in-law, and paid over to her.
    It is submitted that the decree against Mrs. Bayliss sho uld be reversed.
   Mr. Justice Wylie

delivered the opinion of the court:

This was a bill seeking partition and division of the property against the several tenants in common.

The husband of one of the tenants in common had been in the receipt of an undue share of the rents, issues, and profits in his life-time, but he died before the bill was filed, and his surviving wife, who was entitled to share, was charged by the bill with the amount of rents, issues, and profits which were received by him as her husband, and she is called upon to account. The auditor to whom the question was referred by the court below made a report, binding her to make good the shares of the rents and profits which had been received by her husband in her life-time, and the auditor’s report, after .a delay of thirty days, was ratified. The case has come up to this court.

We think that the decree confirming the auditor’s report -below in this respect was erroneous; and that she could not beheld accountable for the rents, issues, and profits which were received by her husband.

There is another objection probably, but not much relied upon; that is, that the account goes too far back $ part of it over twenty years. The decree is reversed as regards Mrs. Bayliss.

The others have not appealed. There seems to be no error in regard to them.  