
    MILLER v. CRAWFORD.
    
      N. Y. Supreme Court, First Department, Chambers;
    
    
      February, 1891.
    1. Administrator's right to rents.] An administrator is entitled to rents that have accrued, but are not collected until after the death of intestate.
    2. The samei] Rent due a few days before the death of intestate although payable in advance, has accrued within the meaning of the Rev. Stat. Pt. 2, Tit. 3, c. 6, § 6, and belongs to the administrator. L. 1875, chap. 542, does not apply to such a case. Matter of Weeks, 5 Dem. 194, followed ; Matter of Eddy, 10 Abb, N, C. 396, disapproved.
    3. The same.] The common law rule prevails as to rent falling due after the death of owner.
    Application for instructions by a receiver of rents -of property of a decedent.
    
      William D. Murray, for receiver.
    S. H. Little, for administrator.
    
      
       The statute is as follows :
      L. 1875, chap. 542, § 1. “ All rents reserved on any lease granted after the passing of this act, and all annuities, dividends, and other payments of every description, made payable or becoming due at fixed periods under any instrument executed after the passing of this act, or (being a last will and testament), that shall take effect after the passing of this act, shall be apportioned, so that on the death of any person interested in any such rents, annuities, dividends, or other payments as aforesaid, or in the estate or fund from, or in respect of which the same shall issue or be derived, or on the determination by any other means whatever of the interest of any such person, he or she, and his or her executors, administrators, or assigns, shall be entitled to a proportion of such rents, annuities, dividends, and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions on account of charges on such rents, annuities, dividends and other payments being made.
      
        § 2. Every such person, his or her executors, administrators and :assigns shall have the same remedies at law and in equity for recovering such apportioned parts of the said rents, annuities, dividends and •other payments when the entire amount, of which such apportioned parts shall form a part, shall become due and payable and not before, as he or she or they would have had for recovering and obtaining such ■entire rents, annuities, dividends and other payments, if entitled thereto; but so that the persons liable to pay rents reserved by any lease or demise, and the lands, tenements and hereditaments comprised therein, shall not be resorted to for such apportioned parts as .aforesaid, but the entire rents, of which such apportioned parts form .parts, shall be collected and recovered by the person or persons, who, if this act had not passed, would have been entitled to such entire ■rents; and such portions shall be recoverable from such person or ■persons by the parties entitled to the same under this act in any action •or suit at law or in equity.
      § 3. This act shall not apply to any case in which it shall be ■expressly stipulated that no apportionment shall be made, or to any :sums made payable in policies of insurance of any description.”
    
   Lawrence, J.

This is an application for instructions by a receiver of the rents of certain property belonging in fee simple to Thaddeus C. Kinnier at the time of his death, which occurred on February 4, 1890.

The rents of said real estate collected by the receiver .are conceded to fall into three classes: First, rents which were payable in advance and were due on the first day of February, 1890, before Kinnier’s death. Second, rents which were not payable in advance and1 which did not become due until after Kinnier’s death,, but which were partly earned before his death; and,. Third, Rents which were entirely earned, but which hard not been collected, when Kinnier died.

Section 6, title 3, chap. 6, part 2 of the Revised Statutes (3 Banks. 7 ed. 2295). provides that there shall be included among the property of a decedent’s, estate which shall be deemed assets and shall pass as. such to his executors and administrators as part of the personality, “ rents reserved to the deceased which had accrued at the time of his death.” In this case it is. claimed by the counsel for the administrator of Thaddeus C. Kinnier that the administrator is entitled to all the rents collected by the receiver that had accrued and were unpaid on or before February 4th, 1890. There can be no doubt that such administrator is-entitled to the rents which were entirely earned, but which had not been collected by Kinnier when he-died, for the reason that such rents, in the language of the Revised Statutes, had accrued at the time of his death. I am also of the opinion that the administrator is entitled to the rents which were payable in advance, and which became due on the first of February, 1890, three days before Kinnier’s death. Although payable in advance, the rent was due or had accrued at the time of Kinnier’s death, within the meaning of the provision of the Revised Statutes above-referred to.

The act of 1875, chapter 542 of the laws of that year, is relied upon in opposition to this view, and the case of the Matter of Eddy (10 Abb. N. C. 396), decided by Mr. Justice Westbrook, favors that contention. In-the Matter of Weeks (5 Demarest, 194), Surrogate Rollins had occasion to examine the provisions of that act, and he came to a conclusion different from that of Westbrook, J. After a critical examination of that act, which he declared to have been modeled upon the-statute of 4th and 5th William IV., chap. 22, and of the English decisions construing that act, the learned sur rogate held that its purpose was to provide not for the apportionment of rents, as between those entitled to the testator’s personal estate and the devisees of his real estate, but'for such apportionment as between successive takers of the realty ; that the estate of absolute owner, which in that case, as in this, was admittedly possessed by the decedent, did not determine, or, in other words, was not extinguished by death; but, on the contrary, that it was through him or by operation of his will that it passed to his executors in trust and would ultimately be enjoyed by the several remainder-men. In this case the estate of the decedent passes from him by operation of law, and is enjoyed through him by such heirs at law. This construction given to the act by the surrogate seems to me to be the correct one. It, therefore, follows under the provisions of the revised statutes that the administrator of the decedent is entitled to all rents collected by him that had accrued and were unpaid on or before February 4, 1890. As to the rents falling under the second clause above stated, if the act of 1875 does not apply, it would seem that the common law rule still prevails (see Matter of Weeks, 5 Demarest, 197; Brown v. Amyot, 3 Hare,, 173).

Provision should be made in the order for the payment of the charges and commissions of the receiver. Settle order on notice.  