1911 Encyclopædia Britannica/Apportionment
APPORTIONMENT (Fr. apportionement; Med. Lat. apportionamentum; derived from Lat. portio, share), distribution or allotment in proper shares; a term used in law in a variety of senses, (1) Sometimes it is employed roughly and with no technical meaning to indicate the distribution of a benefit (e.g. salvage or damages under the Fatal Accidents Act 1846, § 2), or liability (e.g. general average contributions, or tithe rent-charge), or the incidence of a duty (e.g. obligations as to the maintenance of highways). (2) In its strict legal interpretation apportionment falls into two classes, “apportionment in respect of estate” and “apportionment in respect of time.”
1. Apportionment in respect of Estate may result either from the act of the parties or from the operation of law. Where a lessee is evicted from, or surrenders or forfeits possession of part of the property leased to him, he becomes liable at common law to pay only a rent apportioned to the value of the interest which he still retains. So where the person entitled to the reversion of an estate assigns part of it, the right to an apportioned part of the rent incident to the whole reversion passes to his assignee. The lessee is not bound, however, by an apportionment of rent made upon the grant of part of the reversion unless it is made either with his consent or by the verdict of a jury. The assignee of the reversion of part of demised premises could not, at common law, re-enter for breach of a condition, inasmuch as a condition of re-entry in a lease could not at common law be apportioned. But this has now been altered by statute both in England (Law of Property Amendment Act 1859, § 3; Conveyancing Act 1881, § 12) and in many of the British colonies (e.g. Ontario, Rev. Stats., 1897, c. 170, § 9; Barbados, No. 12 of 1891, § 9). In the cases just mentioned there is apportionment in respect of estate by act of the parties.
2. Apportionment in respect of Time.—At common law, there was no apportionment of rent in respect of time. Such apportionment was, however, in certain cases allowed in England by the Distress for Rent Act 1737, and the Apportionment Act 1834, and is now allowed generally under the Apportionment Act 1870. Under that statute (§ 2) all rents, annuities, dividends and other periodical payments in the nature of income are to be considered as accruing from day to day and to be apportionable in respect of time accordingly. It is provided, however, that the apportioned part of such rents, &c., shall only be payable or recoverable in the case of a continuing payment, when the entire portion of which it forms part itself becomes payable, and, in the case of a payment determined by re-entry, death or otherwise, only when the next entire portion would have been payable if it had not so determined (§ 3). Persons entitled to apportioned parts of rent have the same remedies for recovering them when payable as they would have had in respect of the entire rent; but a lessee is not to be liable for any apportioned part specifically. The rent is recoverable by the heir or other person who would, but for the apportionment, be entitled to the entire rent, and he holds it subject to distribution (§ 4). The Apportionment Act 1870 extends to payments not made under any instrument in writing (§ 2), but not to annual sums made payable in policies of insurance (§ 6). Apportionment under the act can be excluded by express stipulation.
The apportionment created by this statute is “apportionment in respect of time.” The cases to which it applies are mainly cases of either (A) apportionment of rent due under leases where at a time between the dates fixed for payment the lessor or lessee dies, or some other alteration in the position of parties occurs; or (B) apportionment of income between the representatives of a limited owner and the remainder-man when the limited interest determines at a time between the date when such income became due.
The Apportionment Act 1870 extends to Scotland and Ireland. It has been followed in many of the British colonies (e.g. Ontario, Rev. Stats., 1897, c. 170, §§ 4-8; New Zealand, No. 4 of 1886; Tasmania, No. 8 of 1871; Barbados, No. 12 of 1891, §§ 9-12). Similar legislation has been adopted in many of the states of the American Union, where, as in England, rent was not, at common law, apportionable as to time (Kent, Comm. iii. 469-472).
An equitable apportionment, apart from statute law, arises where property is bequeathed on trust to pay the income to a tenant for life and the reversion to others, and the realization of the property in the form of a fund capable of producing income is postponed for the benefit of the estate. In such cases there is an ultimate apportionment between the persons entitled to the income and those entitled to the capital of the accumulations for the period of such postponement. The rule followed is this: the proceeds, when realized, are apportionable between capital and income by ascertaining the sum which, put out and accumulated at 3% per annum from the day of the testator’s death (with yearly rents and deducting income tax) would have produced at the day of receipt the sum actually received. The sum so ascertained should be treated as capital and the residue as income. (In re Earl of Chesterfield’s Trusts, 1883, 24 Ch.D. 643; In re Goodenough, 1895, 2 Ch. 537; Rowlls v. Bebb, 1900, 2 Ch. 107.)