The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-03-10
ITO be reported.
p. F. CALCoTT EFT AL,
V. No. 1864.

E. NJ PARKS
Error to the Chancery court of Tate coun-
ty, Hon. J. B. Morgan, Chancellor.
Certain property was devised to Lucinda
Parks for life, with remainder in fee to
plaintiffs in error. There was a lien or
charge on the land in favor of the life ten
ant, amounting to $4,000. She died, and
her husband, f. NJ. Parks, sole heir, filed
this bill to subject the property to the lien
The life estate being then terminated, the
question was as to the proper mode of ap-
portioninS the burden as between the two
estates. This is the only question in the case
of general Importance that was passed upon
| by the supreme court. So much of the
opinion as relates to the point is given in
/ full.
! CAMPBELL, J.
/ The chancellor adopted the correct rule,
as applicable to this case, for apportionng
the burden of the charge between the life
estate and the remainder. He held, that
the estate for life should pay the interest
during it's continuance, and accomplished
| this result, by allowing to the appellee no
interest on the So, 900, during the existence
of the life estate.
! We approve the rule declared by Judge
Story in Foster q. billiard, l Story's Rep,
II, which is, that when tenant for life,
and remainder-men sell the estate, consist
ing 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 pro-
| portion 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
requ ire the life estate to pay the interest of
an encumbrance during the continuance of
such estate, for then it is not matter of
uncertainty as to the duration of the life
estate. 1t does not then depend on eKpec-
tation, based on life tables, but has become
! fixed, and the question is, not value at the
time of sale (Which in case of 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 charged with the payment
of the money, and that is determined by
the facts, and not by life tables.
! The case of Foster q. Hiltiard l Story's
| Rep, II, illustrates the rule of apportion>
ment in sales by the parties, and Clyat ..
Batteson, | Vernon, 404, illustrates that
applied when the apportionment is made,
after the termination of the life estate, not
as the result of sale by the parties, and
therefore made conformably to their pre-.
sumed intention, but by the court upon the
facts, as matter of justice between the
/ independent interests, and without regard
! to any presumed intention.
The rent for the years 1877 and 1873 was
! fixed too low. 1t should have been put at
! five hundred dollars year, instead of three
hundred dollars, and for this error the de-
cree will be reversed. The appellee should
be allowed for the taxes on the land paid by
him since the judgment in eiectment.
Decree reversed, and cause renldnded for q
decree to be entered IN accordance Nth this
opinion.
T. w. White, for plaintiffs in error.
| Stands & johnson and T. II. Johnston,
! c0ufya