*172On Petition for a Rehearing.
Zollars, J.It will certainly not be difficult to discover the difference between a holding that appellant was not personally liable under and by force of the terms of the will for his mother’s living, which, as stated in the principal opinion, would make him liable regardless of the rents and profits of the land, and a holding which makes him personally liable by reason of having occupied a portion of the land, and received the rents and profits thereof. '
Under the will appellee was, and is, entitled to a living from the land.
The sjtecial finding of facts shows that appellant, while occupying a portion of the land and receiving the rents and profits, recognized that right. He, certainly, can not complain that she claimed nothing from him on account of the rents and profits until recently. Nor can it be of any consequence, as affecting her rights, that during many year’s she was able or managed to live without looking to the land. She would have been entitled to a living from the land although she might have received a fortune from other sources subsequent to the death of the testator. The will unconditionally gave to her a right to a living from the land. That right was not made dependent upon the condition that she might be able to live without looking to the land, nor upon any other condition. Having a right to a living from the land, appellee might each year have demanded from appellant, who occupied one-third of it, to turn over to her an amount equal to one-third of the amount necessary for her living, provided the rental value of the land so occupied amounted to that much. That she was entitled to a living from the land he was bound to know without any notice from her. The will which lodged the fee in him was notice to him that his .mother was entitled to a living from the land. The special finding, however, as we have seen, shows that he had actual knowledge of her rights, and recognized those rights in frequent conversations with her. He has occupied the *173land and received the rents and profits with the knowledge, both constructive and actual, of her rights.
Filed June 13, 1888.The law raised an implied promise on his part to account to her for such an amount of the rents and profits of the land so occupied as. would amount to one-third of her living, if the rental value of the land amounted to that much. To that extent he became indebted to her by reason of his occupancy .and use of the land. Betts v. Quick, 114 Ind. 165.
We can think of no statute, except the six years’ statute of limitations, which will bar an actiou for that indebtedness, and that statute, we think, applies. Suppose, for example, that during the six years immediately preceding the bringing of the action, appellee had gone in debt to some one for her living, or had borrowed money on which to live, could it be said that because she had not, each year, or at the beginning of those six years, made a demand upon appellant she could recover nothing from him with which to pay for her living, or to repay the money upon which she lived ?
By failing to require appellant to account as above indicated, appellee, by reason of the statute of limitations, is limited in her right of recovery to the six years preceding the commencement of her action, but to hold that she can not recover for those years would be to destroy, in a measure, the provisions made for her by the testator.
Complaint is made that we did not, in the principal opinion, decide upon what basis the rental value of the land occupied by appellant should be estimated; as, for example, what account, if any, should be taken of the improvements which appellant may have put upon the land by way of clearing, fertilizing and otherwise, if any, which may have increased the rental value. We did not go into that question, and must decline to do so now, for the reason that the record does not so present it as to make a decision necessary or proper.
Petition for a rehearing overruled.