Case 70. — ACTION BETWEEN SALLEE A. PENN’S EX’R AND JACOB A. PENN’S EX’R, INVOLVING CONSTRUCTION OF JACOB A. PENN’S WILL.

May 23.

#### Penn’s Ex’r v. Penn’s Ex’r.

Appeal from Scott Circuit Court.

James E. Cantrill, Circuit Judge.

From the judgment defendant appeals.

Affirmed.

Wills — Real Estate — Taxes Thereon — Life Tenant — ¡Duty to Pay— Funeral Expenses1 — Debts^-MDevise of Real Estate — Subsequent Lease by Testator — 'Notes for Rent.

1. Wills — ¡Real Estate — Taxes Thereon — Life Tenant — Duty to Pay —(P., who died in June, 1902, by his will devised to his wife ■all -his personal' estate absolutely, .and certain real estate during her life. At his death there were unpaid taxes assessed against ’his real and personal estate amounting to $326.50. Bis widow died! September 16, 1902. Beld — It was the duty of the personal representative of the widow to pay the said taxes, as under our statutes the taxes were a lien on the lands, and it is the duty of one to whom land is devised for life to pay the taxes and keep it free from lien as against the remaindermen.

2. Funeral Expenses1 — Debts1—Where testator directed the payment of all his funeral expenses and debts out of his personal estate, the balance of which he gave to his wife, together with a life estate in certain land, the personal estate was liable for taxes assessed against the real and personal estate and unpaid at the time of testator’s death, as taxes, while not “debts,” strictly speaking, are obligations or liabilities.

3. -Same — Devise of Real Estate — Subsequent Lease by Testator— Notes for Rent — Effect—P. owned two tracts of land, and by his will, dated September 8, 1894, devised to hisl wife all ¡his personal estate absolutely,' and all his real estate during ¡her life, and by a codicil, dated November 13, 1899, directed that the “home tract” he sold at his death and the proceeds divided among the children of his two sisters, and on July 30, 1901, after the date of the will and codicil, leased thé other ¡tract of land for the term of three years at $800 per year, *558for which he held the three notes of the lessee at the time of his death, in June, 1902. Held — That the will speaks as of the date of the death of the testator, and the three notes were payable to the testator and were his. personal property, and passed with his- other personal estate under the will to his widow.

WALLACE '& HARRIS, W. O. DAVIS and FIELD MicLEOD for appellants.

PROPOSITIONS AND AUTHORITIES CITED.

1. Rent accruing after the death of an owner in fee goes to the heir of devisee, and is not assets in the hands of his personal representative. (Ky. Stats., sec. 3865; Minor’s Institutes, vol. 2, pp. 80, 39 and 53; Blackstone’s Com., vol. 2, p. 42, N. 46 DSharswood’s Ed.]; 1 P. Wms., 178; Toller on Ex’rs, 177-178; Kent’s -Com,, vol. 3, p. 494; Ball v. First National Bank, 80 Ky., 501; Rank v. Hill’s Adm’r, 8 Bush, 67; Oa-ss v. Smith, Blair & Co., 7 Ky. Law Rep., 305; Eastin v. Batchitt, 15 Ky. Law Rep., 780; Anderson v.- Richards, 18 Ky. Law Rep., 455.)

2. Under the will' of Jacob A Penn the taxes on his estate due at the time of his death must he paid out of his personalty. (8 Ben Mon., 461.)

3. A life tenant of real estate must pay the current, taxes. (B-rodie v. Parsons, 23 Ky. Law Rep., 833; Arnold v. Smith, 66 Ky., 163; Fox v. Long, 71 Ky., 551.)

JAS. BRADLEY and MONTGOMERY & LEE for appellants.

1. Although the -consideration- of the notes was the rent of land, we -contend that the notes themselves were not rent, hut personal property, and passed under the 5th clau-s.e of the will of Jacob A. Penn, in which he say-s; “I will to my wife, Sallie A. Penn,- -all the -balance of my personal property of every description.”

'2. But even if we concede that these rent notes- can be held to be rent, and governed- by the s-ection of the statute quoted, then we say that this is a clear ease coming under the exception which -says: “In case of a -devi-see the will shall otherwise direct.”

'Testator -had no claim against Lawless for rent as rent, hut simply a claim for the amount of the notes, the s-ame as if they had been -executed for borrowed money or for the sale of cattle or other personal property.

3. .It -seems to- us in construing the will of Jacob A. Penn it is -an important fact to remember that he rented out this land *559in July, 1901, and died in June, 1902, nearly a year afterward, and that he must have regarded these notes as personal property during .all that time; 'and if he h'ad not intended for them to pass under the fifth clause of his will, he had ample time to have made a codicil to his will and provided otherwise.

4. The total value of the personal estate was about $4,800, and the total value of the real' estate was a litle more than $27,650. Our contention is that -it would be unjust and inequitable to make the personal estate bear the whole burden'of the taxes or any .part of it except in proportion to the value of the personal estate. (Childers v. Smith, 10 B. Mon., 235.)

Opinion by

Judge Nunn

Affirming.

On the 8th of September, 1898, Jacob A. Penn was the owner of two valuable tracts of land in Scott county, ICy., and something near $3,000 worth of personal estate. On that date he made and executed his will, and, after making several .special bequests, the testator, in the fifth clause of his will, used the following language: “I will to my wife, Sallie A. Penn, all the balance of my personal property of every description. I also will to my said wife for her life all real estate of which I die possessed; at the death of my said wife, should she survive me, it in my will that all of said real estate shall be sold and the proceeds thereof distributed in the following manner: To the children of my two sisters, Charlotte McLeod and Mary Ellen Russell, both of Montgomery county, Ind.,” etc.

On the 13th day of November, ,1899, the testator added the following codicil: “It appearing that the personal property bequeathed absolutely by me to my wife, together with the income from my other real estate, will be ample to meet my wife’s needs, I desire and direct that place on which I now reside, containing about 275 acres, be sold as soon'as practicable after my death and the proceeds at once divided *560among the children of my two sisters, Charlotte McLeod and Mary Ellen Russell, ’ ’ etc.

On the 30th day of July, 1901, after the date of the will and the codicil, Jacob A. Penn leased the farm other than the home place to one Alex. Lawless, for the term of three years, for the price of $800 per year, Lawless executing his three promissory notes to Jacob A. Penn, due March 1, 1903, March 1, 1904, and March 1, 1905, respectively. Jacob A. Penn died in the month of June, 1902, and his will was probated July 21, 1902, and the appellant, Field McLeod, qualified as his executor. McLeod took possession of these n'otes. The widow, Sallie A. Penn, departed this life testate on the 16th tof September, 1902, and the appellee, Frank Kearney, was appointed and qualified as her executor. It further appears from the agreed state of facts that at the time of the death of Jacob A. Penn there were taxes assessed against the real and personal estate, which were unpaid, amounting to $326.50.

The questions to he determined by this court are these: Who is entitled to the Lawless rent notes or their proceeds under the will of Jacob A. Penn? Whose duty is it to pay the $326.50 taxes for 1902, and shall it he paid out of tire personal estate only, or proportioned so as to charge the real estate with part of the taxes, and, if so, what part? Whose duty is it to pay the taxes for the year 1903 on the real estate or farm devised toi Sallie A. Penn for life, she. having died on September 16, 1902? We will consider these questions in the reverse order from that stated.

Mrs. Penn was devised the farm, other than the home place, for life. Under our statutes it was her duty to pay the taxes and keep the property free from lien, so that it might pass to the remaindermen *561free of all charges. Under the statutes, taxes become a lien on the land on the 15th day of September. Hence the taxes which would become due for the year 1903 were a lien on this land the day before the death of Mrs. Penn, and under the plain and positive provisions of the statute her estate was liable for these taxes. (Brodie v. Parsons, 64 S. W., 426, 23 Ky. Law Rep., 833, and the cases therein cited.)

As to the second question — that is, who should pay the taxes for 1902 for $326.50 — we are of the' opinion, from an inspection of the will of the testator, that they should be paid out of his personal estate. By his will he directed that all of his funeral expenses and debts be paid as soon as practicable after his death out of his personal estate, and he then gave all the balance of his personal estate of every description to his wife, Sallie A. Penn. While taxes are not, strictly speaking, debts (which has been decided by this court in the case of Jones v. Gibson, 82 Ky., 561, 6 Ky. Law Rep., 528), yet they are obligations or liabilities, and we are convinced that the testator used the word “debts” intending to include all obligations and liabilities against his estate of every character.

On the first question — as to who was entitled to the Lawless rent notes — the executor of Jacob A. Penn claims that the widow was entitled to that proportion of the rent which had accrued up to the date of her death, to wit, September 16, 1902, and that the rents accruing after that time follow the reversion, and go to the niece and nephews, the beneficiaries in remainder, and contend that the case is governed by sec. 3865 of the Kentucky Statutes of 1903, which is as follows: “When a person who has a freehold, or an uncertain interest in land, shall rent *562out the land, and die before the rent shall have become due, the rent of the land shall be apportioned between the personal representatives of the deceased and the person who shall succeed to the land as heir, personal representative, devisee, or person in reversion or remainder, unless in the case of a devisee the will shall otherwise direct.”

Appellant’s contention in this case would be correct if the will did not otherwise direct. The rule in construing wills is to the effect that they shall be construed as speaking at the date of the death of the testator. These Lawless notes were payable to the testator, and were his personal property, and they passed, with his other personal estate, to his widow, under the positive provisions of his will. If the testator, prior to his death, had sold these notes to a third party for their full value, and h'ad deposited the cash received .for them in the bank, under the provisions of the will the widow would certainly have taken this cash as a part of the personal estate, and it could not reasonably be contended that the purchaser of the notes could not have collected the whole of the' notes. H|e could not have been stopped in the collection of them at the date of the death of the testator or his widow.. Under the privisions of the will of Jacob' A. Penn he passed these notes to his wife as effectively as he could have passed them to a third party by a sale thereof.

The judgment of the lower court being in conformity with the views herein expressed, it is therefore affirmled. Petition for rehearing by appellant overruled.