
    C. M. TOWNSEND, Executor, v. JOHN A. ROWLAND, Administrator.
    (Filed 3 November, 1915.)
    1. Estates — Remainderman—In Possession — Accounting—Rents and Profits— Promise to Pay — Reference—'Evidence—Conclusion of Law.
    While the life tenant, in the absence of a valid conveyance of the rents and profits, is ordinarily entitled to recover them from the remainderman when both live together upon the land, this does not apply between mother and son when they are living thereon, with the latter’s family, for a long term of years, the son taking full charge and management of the lands and supporting them all therefrom; and when the matter has been referred and the facts so found and approved by 'the trial judge, it is sufficient to sustain the conclusion of law, in the absence of a promise to pay on the part of the son, that he is not chargeable with the rents and profits.
    
      2. Estates — Remainderman in Possession — Rents and Profits — Burden of Proof. ■
    In an action to recover rents for the life estate in lands from the re-mainderman in possession, evidence of the value thereof for the time of such possession must he introduced hy the plaintiff in order for him to recover them.
    Appeal by plaintiff from Allen, J., at tbe October Term, 1914, of ROBESON.
    This action was originally instituted 9 December, 1910, by a mother against the administrator of her deceased son to recover the rents and profits of a tract in which the plaintiff was a life tenant and her son the remainderman. The mother dying in May, 1913, pending the action, her executor was substituted as plaintiff. There was a consent reference to Prof. N. Y. Gulley as referee, who found the facts and held as a matter of law thereon that the plaintiff was not entitled to recover anything. On exceptions filed by the plaintiff the judge approved all the findings of the referee, both as to law and fact, and from the judgment entered thereon the plaintiff appealed.
    
      Sinclair, Dye & Bay and J ohnson & J ohnson for plaintiff.
    
    
      T. A. McNeill, Jr., mid McIntyre, Lawrence & Proctor for defendant.
    
   Clark, C. J.

There was evidence to support the findings of fact, and they are therefore conclusive. The only question presented by the appeal is whether the court correctly applied the law to the facts.

It is true, as contended by the plaintiff, that the life tenant, in the absence of a valid conveyance of the rents and profits, was entitled to have them for her own use, and that the mere fact that she permitted, her son, the remainderman, and his family to live in the house with her for a number of years as one family would not estop the life tenant from recovery of the value of the rents. But in this case the referee finds as a fact that, during the period from 1888 to 1910, the plaintiff and her son and his family all lived together on the farm as one family, eating at the same table, the living expenses being paid from the products of the farm; that the son controlled and managed the farm, paid all expenses thereto, supported his mother and supplied all her, wants-just as he did the other members of the family; that the son cleared, drained and ditched the land, erected buildings thereon, listed and paid the taxes, and acted in all respects as though he owned the land in fee simple. The land was mortgaged several times by the plaintiff and her son, among these being a mortgage for $12,000, and this money was-with the consent of the mother used by the son in discharging his debts, and no part was used, by the mother. In 1907 the mother and son joined in a lease of the land for five years at $2,500 per year. The rents for 1908 and 1909 were collected by tbe son and applied to payment of tbe expenses of tbe family, including tbe plaintiff, to tbe payment of tbe interest due on tbe mortgage, to payment of taxes and to debts for tbe family expenses. Tbe rent for 1910 was paid to tbe administrator of tbe, son, wbo used tbe same in tbe same manner as tbe rents of 1908 and 1909 bad been applied. There was no agreement between tbe son and bis mother that be should pay any rent for tbe lands; no rent was ever paid by him, and at no time between 1888 and bis death in 1910 did plaintiff make any demand upon him for payment of rent. After bis death no demand was made by her upon tbe administrator of tbe son for rent. Tbe plaintiff made no demand upon tbe lessee for tbe rent.

Tbe court properly held that tbe mother, now represented by her executor, was not entitled to recover. She testified that she did not bring tbe suit (nor direct it to be brought), and did not know that it bad been brought; that she never collected any rent from her son nor bad any contract with him to pay rent; that she and her son with bis wife and children all lived together as members of tbe same family and were supported by what was made on tbe farm.

This course of living extended over a period of twenty-two years, and we think justifies tbe finding of tbe referee, approved by tbe court below, that there was no contract, express or implied, for payment of rents for tbe years 1908, 1909, and 1910. Tbe most that tbe plaintiff could recover is tbe cost of her support from tbe death of tbe son in April, 1910, till tbe end of tbe year. By tbe course of living for twenty-two years there was an implied agreement that she was to receive her support- in lieu of rents. It does not appear in tbe evidence what this support for last nine months of 1910 was worth, tbe burden of proving which was upon tbe plaintiff, nor that tbe mother did not receive such support, and tbe judgment should be affirmed.

It appears from tbe mother’s testimony that she bad loaned her son some money and that she thought this action bad been brought to collect that. Tbe rents for tbe years 1911, 1912, and 1913 are not involved in this action. After five years litigation tbe judgment is now

Affirmed.  