Chamberlin v. . Gleason

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The city has not appealed, and we assume that it is content with the judgment. As between the city and the remaindermen, the city did not take the statutory steps to make this assessment against them personally, and did not assume to levy it against their respective interests in the lot in question. It assumed the plaintiff to be the owner of the lot. The tenant for life and the remaindermen are not tenants in common, since the possession of the tenant for life is exclusive of like possession by the remaindermen, and unity of possession, or promiscuous occupation, or the right to it, is one essential of tenancy in common. (2 Blk. Com. 191; 4 Kent, 367; Sullivan v. Sullivan, 66 N.Y. 37;Cromwell v. Hull, 97 N.Y. 209; Hughes v. Hughes, 30 Hun, 349.)

But the city did regularly make the assessment against the plaintiff personally, and the charter makes the assessment a lien upon her interest in the lot, and provides for the sale thereof for a term of years after default in payment of any installment, and this sale the city was proceeding to make. It is not urged that the plaintiff has any ground upon which to vacate the assessment, or prevent the sale, except by payment.

The remaindermen do not complain that the plaintiff has failed in her duty to them in not bringing their respective interests to the notice of the assessors. They were willing that the whole burden should fall upon her, and but for the interposition of equity, which takes cognizance of the facts which the assessment record does not disclose, it would so fall. In equity between herself and them she was only liable with them ratably according to their several interests and several benefits from the paving, the proper share of each one's liability being dependent upon the unknown duration of the plaintiff's life and the life of the improvement.

The plaintiff can have no relief at law. The charter provides that the expense of the repairs of the pavement shall be paid by general taxation, and thus the improvement becomes permanent in its nature. The general rule is that municipal assessments for permanent improvements are apportionable between the life tenant and the remaindermen according to the circumstances of the case and their respective interests in the property. (Thomas v. Evans, 105 N.Y. 601; Peck v.Sherwood, 56 N.Y. 615.)

Unless the creator of the several estates has otherwise provided, the life tenant should pay the usual current charges, such as ordinary taxes, interest and repairs, and the remaindermen the unavoidable charges for permanent improvements. (Matter of Albertson, 113 N.Y. 434; Stevens v. Melcher,152 N.Y. 551.)

In equity the remaindermen's share of the burden should not rest upon the plaintiff in the first instance, but upon them, and they should discharge it lest the whole burden prove greater than the plaintiff can bear without irreparable injury to her life estate.

The will of the testator, under which the life tenant and remaindermen derive title, provides: "My wife (the plaintiff) shall pay all taxes assessed against said house and lot during her lifetime, and also all premiums for insurance of said house not only for her interest as a life tenant but also her interest as mortgagee." The testator also provided that the plaintiff be paid twelve dollars per week out of his estate, the same to be secured by a mortgage to be given by the remaindermen upon the house and lot in question.

We think the testator did not intend to include assessments for permanent improvements in the word taxes as used by him in the will. (Peck v. Sherwood, supra.) It is not clear from the judgment whether the interest payable upon each installment is deferred until the principal shall become due, as the record does not show what is the promise of the bonds issued by the city to pay for the improvement as to the time of the payment of interest. We assume that the effect of the judgment is that the plaintiff must pay or provide for the payment of the interest which accrues during her life while the principal of the installment is maturing.

The appellants urge that the plaintiff ought to be charged in favor of the remaindermen with the interest upon the entire assessment during her life, since she is in the enjoyment of the property. (Cogswell v. Cogswell, 2 Edw. Ch. 231; Bates v.Underhill, 3 Redf. 365; Cairns v. Chabert, 3 Edw. Ch. 312.)

The whole assessment is $459.37; the plaintiff was sixty-nine years of age at the time of the trial, and it does not appear that the item of interest during her life, after payment of the principal, was deemed of sufficient importance to be brought to the notice of the court.

The judgment should be affirmed, with costs to the plaintiff against the appellants.

PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, MARTIN and VANN, JJ., concur.

Judgment affirmed.