#### Frank Haynes, Executor, Appellant, v. Warren A. McDonald, Appellee.

1. Landlord and tenant—when rent payable. In the absence of special custom or agreement the time of payment of rent is at' the end of the term.

2. Descent—to whom, rent passes. Rent accruing after the death of the owner of demised premises is a chattel real and goes to the heir or devisee of such deceased owner and not to his executor or administrator. -

*295Assumpsit. Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.

Heard in this court at the May term, 1910.

Affirmed.

Opinion filed October 18, 1910.

Elting & Hainline, for appellant; Don P. Pennywitt, of counsel.

Theodore B. Switzer and Flack & Lawyer, for appellee.

Mr. Justice Baume

delivered the opinion of the court.

The question presented for our consideration in this appeal involves the propriety of the action of the Circuit Court of McDonough county in sustaining the demurrer interposed by the defendant to plaintiff’s declaration and in entering judgment against the plaintiff in bar of his action.

The declaration alleges in substance that the defendant, Warren A. McDonald, on, to wit, March 1, 1909, was and now is indebted to the plaintiff as executor of the last will and testament of Josiah McDonald, deceased, in the sum of $1,000 for rent accruing to Josiah McDonald in his lifetime; that the said Josiah McDonald on March 1, 1908, demised to the said defendant a certain tract or parcel of land of the said Josiah McDonald, with the appurtenances thereunto belonging for and during the term of one year next ensuing, the defendant paying to the said Josiah McDonald as rent for the same the sum of $550 by virtue of which said demise on the day first aforesaid said defendant entered into said demised premises and was possessed thereof from and thenceforth until March 1, 1909, in consideration whereof, the said defendant at the time of the said demise aforesaid then and there promised the said Josiah McDonald to pay him the said money during said term; that the said Josiah McDonald departed this life on or about the 14th day *296of October, 1908, seized in fee simple of the aforesaid demised premises; that the said Josiah McDonald in his lifetime made and published his last will and testament whereby he devised to the defendant the said tract of land for the term of his natural life, with remainder to the daughter of said defendant for the term of her natural life and at her death to the children of her body share and share alike, and whereby also the said testator bequeathed to his daughter Mary M. Haines the sum of $20,000; that the total amount of the personal estate of said testator exclusive of the uncollected rents on the premises demised by him in his life time was $20,093.37, and that the plaintiff as executor had paid on account of debts, legacies and costs the sum of $19,913.20, leaving in his hands $180.17; that the total liabilities of said estate amounted to $23,211.53 leaving a deficiency of personal assets, exclusive of rents, of $3,118.16; that the sum of $550 so agreed to be paid by the defendant to the said testator as rent was not devised to the defendant or to any other person by the said testator and that the plaintiff as executor is of the opinion that it would be of advantage to the said estate to collect the said unpaid rent and apply the same to the payment of debts and legacies; that since the death of the said testator the defendant being so indebted for said rent promised the plaintiff as executor to- pay the same, etc.

In the absence of any averment in the declaration of a special custom or contract as to the time of payment of the rent for the premises demised by the testator in his lifetime to the defendant for the term of one year beginning March 1, 1908, such rent was not payable until the end of the term, March 1, 1909, almost four months after the death of the testator. Dixon v. Niccolls, 39 Ill. 372; McFarlane v. Williams, 107 Ill. 33; Dauchy Iron Works v. McKim, 85 Ill. App. 584; Bradley v. Peabody Coal Co., 99 Ill. App. 427.

It is the settled law in this state that rent accruing *297after the death of the owner of the demised premises is a chattel real and goes to the heir or devisee of said deceased owner and not to his administrator or executor. Green v. Massie, 13 Ill. 363; Sherman v. Dutch, 16 Ill. 282; Foltz v. Prouse, 17 Ill. 487; Dixon v. Niccolls, su pra, Stark v. Brown, 101 Ill. 395; LeMoyne v. Harding, 132 Ill. 23.

Tested by these well-established rules of law the declaration failed to allege a cause of action in favor of the plaintiff as executor against the defendant, and the action of the court in sustaining a demurrer to said declaration, and upon the election of the plaintiff to abide the same, in entering judgment against him in bar of his action and for costs was proper. Other questions sought to be raised by the plaintiff are not pertinent on this appeal and not, therefore, considered and determined.

The judgment of the Circuit Court was right and is affirmed.

Affirmed.