last cases on this point, the court held that even in the absence of other statements of actual fraud, the mere neglect of the life tenant to pay taxes, whereby ultimately the property might be lost to the remaindermen, was in itself a fraud upon them.

b. To Pay Interest on Mortgages.

1. The Tenant in Possession.

A. Accruing Interest.-As between the owners of the fee and the life estate in mortgaged property, the owner of the life estate is charged with the duty of paying interest upon the encumbrance, and the life tenant cannot, by neglecting his duty and allowing the mortgage to be foreclosed, acquire title through the foreclosure sale, and cut off the remainderman: Bowen v. Brogan, 119 Mich. 218, 75 Am. St. Rep. 387, 77 N. W. 942; McCall v. McCall, 159 Mich. 144, 123 N. W. 550; Jefferson v. Bangs, 197 N. Y. 35, 134 Am. St. Rep. 856, 90 N. E. 109. This case and Damm v. Damm, 109 Mich. 619, 63 Am. St. Rep. 601, 67 N. W. 984, form a valuable compendium of the law on this subject and on ancillary topics. The opinion in the last-named case affirms the principle that as between a life tenant in possession and the remainderman, the former is bound to pay the interest and the latter the principal of any encumbrance to which the estate of both is subject.

B. Interest Due Before Tenant for Life in Possession.-The tenant for life is not chargeable with interest accrued due before his possession. Such interest will remain a charge on the estate: Jones v. Sherrard, 22 N. C. 179. In the case last named, the court says: "Hence the husband of a mortgagor in fee is not obliged to keep down the interest during their joint lives. How then, is that arrear of interest to be disposed of? It was held by the house of lords in Ruscombe v. Hare, 6 Dow. P. C. 1, 19 R. R. 1, upon the opinion of Lord Eldon, that such arrear of interest must, upon the death of the wife, be turned into principal, so as to make the original principal and that interest together the capital, on which the husband, as tenant by the curtesy must keep down the interest. There seems, indeed, to be no other mode of dealing with arrear of interest, although it violates the general rule that interest shall not be paid on interest."

2. The Tenant in Expectancy.-If an encumbrance exists to which the interest of a life tenant in expectancy is subject, and to which the interest of the remainderman is also subject, and the encumbrance does not affect the life tenant in possession, and the encumbrance is discharged by the remainderman, the life tenant in expectancy must contribute his proportion of the amount so paid, to be computed on the basis of the relative value of the estates. The method of making this computation is dealt with post, V, VI.

c. Not to Renew Leases for His Own Benefit.-If the life tenant of renewable leasehold estate renews a lease, the law will not permit him to do so for his own exclusive use, but will make him a trustee for the reversioner or remainderman. But if the life tenant pay out money that he was not required to pay, or more than his proportionate share, he becomes to that extent a creditor of the estate, and will be subrogated to the rights of the persons whose claims he has paid off. He and those claiming under him occupy a position analogous

to that of a mortgagee in possession after condition broken, and cannot be ejected until all sums due him or them from the estate have been repaid: Whitney v. Salter, 36 Minn. 103, 1 Am. St. Rep. 656, 30 N. W. 755.

d. To Repair.-The duty of the tenant for life to make repairs sufficient to preserve the property and prevent its waste is well recognized, and he is only excused when the instrument creating his tenancy makes express provision for such purpose: Griffin v. Fleming, 72 Ga. 697; but otherwise his duty is paramount: Stansbury v. Inglehart, 9 Mackey, 134; Smith v. Blindbury, 66 Mich. 319, 33 N. W. 391; St. Paul Trust Co. v. Mintzer, 65 Minn. 124, 60 Am. St. Rep. 444, 67 N. W. 657, 32 L. R. A. 756; Perrine's Exrs. v. Newell, 62 N. J. Eq. 14, 49 Atl. 724; Matter of Very, 24 Misc. Rep. 139, 53 N. Y. Supp. 389; Thurston v. Thurston, 6 R. I. 296; Ballentine v. Spear, 2 Baxt. 269. He must keep the premises in reasonable repair, but not in a better state of repair than when he got them: Murch v. J. O. Smith Mfg. Co., 47 N. J. Eq. 193, 20 Atl. 213; especially if they were then untenantable: Sohier v. Eldredge, 103 Mass. 345. No duty is cast upon him to repair damage caused by accidental fire or the act of God: Miller v. Shields, 55 Ind. 71; Sampson v. Grogan, 21 R. I. 174, 42 Atl. 712, 44 L. R. A. 711. Repairing sidewalks comes within the circle of his duty: Hackworth v. Louisville Artificial Stone Co., 20 Ky. Law Rep. 1789, 50 S. W. 33; Brodie v. Parsons, 23 Ky. Law Rep. 831, 64 S. W. 426; Hitner v. Ege, 23 Pa. 305. Plate glass is not necessarily a permanent improvement in a building so as to entitle the life tenant to immunity from paying for it. The court said that it did not constitute a permanent improvement to a building any more than other improvements which do not form a substantial and material part of the structure: Hancox v. Meeker, 95 N. Y. 528. The tenant for life is not called upon for extraordinary repairs: Wilson v. Edmonds, 24 N. H. 517; and consequently when, as in Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621, the expense of repairing would exceed the value of the house, the tenant is not bound to repair it.

V. The Proportional Value of the Estate for Life and the Reversion or Remainder.

It frequently happens that the present value of an estate for life has to be computed, and the courts and mathematicians for centuries have been engaged in placing such value having regard to the probable duration of life. In a masterly opinion occupying about one hundred pages of the Maryland reports, 3 Bland, 186, Williams' Case covers the entire legal and historical ground, and to that case we must refer the reader, since, notwithstanding its voluminous form, there is little or nothing that can be better condensed. The tables of mortality which are in use by the insurance companies are dealt with their origin and their development, and generally the learning on the subject finds a place in the valuable opinion referred to. We mention it here for reference, only regretting space will not permit its entire reproduction. We must content ourselves with the following excerpt from page 282 of the opinion: "There being no difference between a tenant in dower and any other tenant for life, except that the one is entitled to no more than a third and the other is entitled to the whole for life, and there having been no distinction

made in relation to this matter between particular tenants who are and those who are not punishable for waste; and the rule of this court, in relation to dower, being a much nearer approximation to truth and justice than that of the legislature; and having been approved of by the court of appeals, and directed to be applied, by analogy, to ascertain the present value of a reversionary payment, it has been deemed proper to follow its principles, and to consider it as a general rule in regard to estates for life in land, and life interests of all descriptions, other than dower, or those embraced by any legislative rule, of which this court may be called upon to ascertain the present value; that is to say: The allowance to a healthy person in lieu of his or her life interest in the whole to be as follows: If under thirty years of age, one-half; if above thirty and under thirty-six, nineteen-fortieths; if above thirty-five and under forty, eleven twenty-fifths; if above forty and under forty-five, two-fifths; if above forty-five and under fifty-one, three-eighths; if above fiftyone and under fifty-six, one-third; if above fifty-six and under sixtyone, three-tenths; if above sixty-one and under sixty-seven, one-fourth; if above sixty-seven and under seventy-two, one-fifth; if above seventytwo and under seventy-seven, one-sixth; if above seventy-seven, threetwentieths of the net proceeds."

The leaning of the courts is to take the mortality tables as a basis on which the health of the individual and the circumstances of his particular case will help the court to arrive at a proper valuation: Steiner v. Berney, 130 Ala. 289, 30 South. 570; Williams' Case, 3 Bland, 186; Jones v. Sherrard, 22 N. C. 179; Carnes v. Polk, 5 Heisk. 244. The rule in England of valuing the life estate as one-third and the remainder at two-thirds appears to have been adopted in Pennsylvania. In Appeal of Datesman, 127 Pa. 348, 17 Atl. 1086, 1100, we find: "The court adopted the latter principle, and followed the old common-law rule in force in England, and recognized in this state in Dennison's Appeal, 1 Pa. 201, and in Shippen's Appeal, 80 Pa. 391, that one-third of the capital sum is the measure of the life interest."

VI. Contribution on the Discharge of Encumbrances.

As this question may arise where encumbrances are discharged, it will be briefly considered here. In the currency of the life estate, there being encumbrances, it often happens that the payment of such encumbrances is called for, and they may be paid by any of the interested parties. In the case of a mortgage the tenant for life, as we have shown, must pay the interest, but he is not called upon to pay the principal: Barnum v. Barnum, 42 Md. 251; Plympton v. Boston Dispensary, 106 Mass. 544; Whitney v. Salter, 36 Minn. 103, 1 Am. St. Rep. 656, 30 N. W. 755; Peck v. Glass, 6 How. (Miss.) 195; Thomas v. Thomas, 17 N. J. Eq. 356; Cogswell v. Cogswell, 2 Edw. Ch. 231; Bourne v. Maybin, 3 Woods, 724, Fed. Cas. No. 1700.

On the discharge of the mortgage by the remainderman, the strict rule is that the tenant for life should pay the interest during his life, but for convenience the rule is relaxed, the value of the annuity estimated and paid at once in gross: Van Vronker v. Eastman, 7 Met. 157; Plympton v. Boston Dispensary, 106 Mass. 544; Swaine v. Perrine, 5 Johns. Ch. 482, 9 Am. Dec. 318; Bourne v. Maybin, 3 Woods, 724, Fed. Cas. No. 1700. On the discharge of the mortgage by the tenant

for life, he is entitled to call for contribution from the remainderman, and until payment he becomes a creditor of the estate and will be subrogated to the rights of the persons whose claims he has paid off: Jones v. Gilbert, 135 Ill. 27, 25 N. E. 566; Whitner v. Salter, 36 Minn. 103, 1 Am. St. Rep. 656, 30 N. W. 755; Callicott v. Parks, 58 Miss. 528; Downing v. Hartshorn, 69 Neb. 364, 11 Am. St. Rep. 550, 95 N. W. 801; Thomas v. Thomas, 17 N. J. Eq. 356; Hunt v. Watkins, 1 Humph. 498. The rules as to the amounts of such contribution are contained in Foster v. Hilliard, 1 Story, 77, Fed. Cas. No. 4972, and Clyat v. Batteson, 1 Vern. 404, and were adopted in Callicott v. Parks, 58 Miss. 528. When a tenant for life and remaindermen sell the estate consisting 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 proportion of those interests according to the 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. After the termination of the life estate, the court makes the apportionment on the basis of actual enjoyment, and will require the life estate to pay the interest of an encumbrance during the continuance of such estate, because it is not then a matter of uncertainty as to the duration of the life estate. "It does not then depend on expectation, based on life tables, but has become fixed, and the question is, not as to the value at the time of sale-which, in case of a 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 are charged with the payment of the money, and that is determined by the facts and not by life tables": Foster v. Hilliard, 1 Story, 77, Fed. Cas. No. 4972; Callicott v. Parks, 58 Miss. 528. The case of Clyat v. Batteson, 1 Vern. 404, illustrates the rule applied when the apportionment is made after the termination of the life estate, not as the result of a sale by the parties, and therefore made conformably to their presumed intention, but by the court upon the facts, as a matter of justice between the independent interests and without regard to any presumed intention: Callicott v. Parks, 58 Miss. 528.

VII.

The Conditions Under Which the Remainderman or Reversioner may Claim the Benefit of the Purchase by the Tenant for Life of Outstanding Interests.

While the courts of equity have thus plainly pronounced the doctrine, it is founded on certain basic conditions imposed upon such as seek equity. The courts call upon him also to do equity by paying his share of the sum paid. What that sum is we have dealt with earlier in this note. In Whitney v. Salter, 36 Minn. 103, 1 Am. St. Rep. 656, 30 N. W. 755, the court, after stating the established doctrine that the tenant for life in such case is regarded as having made the purchase for the joint benefit of himself and the reversioner or remainderman, said that the law will not permit him to hold it for his own exclusive benefit if the reversioner or remainderman will contribute his share of the sum paid. If the life tenant in such case has paid more than his proportionate share, he becomes

a creditor of the estate for that amount: Daviess v. Myers, 13 B. Mon. 511. So that two questions at once present themselves as conditions upon the one seeking equity: First, he is not allowed to seek the benevolent help of equity without offering to pay his proportion of the amount expended; and, secondly, that he will carry that offer into effect within a reasonable time to be named. In Peak v. Peak, 228 Mo. 536, ante, p. 638, 128 S. W. 981, these two conditions are dealt with, and the proposition that the purchase of land at a foreclosure sale under a mortgage or deed of trust by a life tenant will be deemed to have been made for the benefit of the remaindermen only if they contribute their portion of the purchase money within a reasonable time is emphasized in the array of authorities cited. In the application of this first rule the law of reimbursement by cotenants is almost identical, and on that subject Mr. Freeman, in Cotenancy and Partition, section 154, says: "A cotenant cannot take advantage of any defect in the common title by purchasing an outstanding title or encumbrance and asserting it against his companions in interest. The purchase is, notwithstanding his designs to the contrary, for the common benefit of all the cotenants. The legal title acquired by him is held in trust for the others, if they choose, within a reasonable time, to claim the benefit of the purchase by contributing, or offering to contribute, their proportion of the purchase money: Titsworth v. Stout, 49 Ill. 78, 95 Am. Dec. 577; Sullivan v. McLenans, 2 Iowa, 437, 65 Am. Dec. 780; Jones v. Stanton, 11 Mo. 433; Keller v. Auble, 58 Pa. 410, 98 Am. Dec. 297; Rothwell v. Dewees, 2 Black, 613, 17 L. ed. 309.”

KAHN V. MERCANTILE TOWN MUTUAL INSURANCE COMPANY.

[228 Mo. 585, 128 S. W. 995.]

CONSTITUTIONAL QUESTION-Waiver by Delay in Raising. The right of a defendant to raise a constitutional or federal question is waived if, his motion to quash the return of service being overruled, he makes no attempt to exercise his right until the next term and after judgment by default has been taken. (p. 670.)

SHERIFF'S RETURN.-Courts Will Permit Amendments to be made to a sheriff's return of a writ to correspond with the facts, even at a subsequent term, and the return will relate to the proper return day. (p. 671.)

PROCESS.-It is the Service of a Writ and Petition upon the defendant, not the return, that gives the court jurisdiction over his person. The return is merely evidence by which the court is informed that the defendant has been served. (p. 671.)

SHERIFF'S RETURN-Time Within Which Amendment may be Made. There is no specific limitation of time within which an amendment to a sheriff's return of service of a writ of summons must be made. (p. 671.)

SHERIFF'S RETURN -Discretion in Allowing Amendment.— The allowing of an amendment to a sheriff's return of service of a