
    Louisa Ross Nesbitt, Plaintiff, v. Sarah J. Thompson, Margaret A. Lunan and Joseph La Page, Defendants.
    (Supreme Court, Franklin Trial Term,
    January, 1916.)
    Lease — by life tenant — use and occupation — partition — termination of lease upon death of life tenant — landlord and tenant.
    Where the life tenant of a farm which she leased by a written instrument under seal for five years dies within the term, the tenant if he continue in the use and occupation of the premises without agreement with the remaindermen is a tenant at sufferance.
    Where the lease ran from March 17, 1913, and the life tenant died August 27, 1914, and the remaindermen duly served upon the tenant a notice to quit on or before March 17, 1915, and, pending the decision of defendants' motion for the dis- . missal of the complaint in an action of partition on the ground that plaintiff was not in possession of the farm at the commencement of the action, the question whether or not the lease had been adopted by the remaindermen was answered in the affirmative by the jury, a motion by plaintiff to set aside' the verdict and for judgment will be granted on the ground that as the evidence failed to show an oral agreement of adoption of the lease there was no question for the jury and the oral agreement, even if shown, would have been insufficient.
    The payment and acceptance of rent and the subsequent acts of the tenant, assuming that he did as claimed in his testimony, did not and could not effect an adoption of the lease because it terminated absolutely upon the death of the life tenant.
    Action upon a lease.
    George J. Moore, for plaintiff.
    Kellas, Genaway & Kellas, for defendant La Page.
    Charles A. Burke, for defendants Thompson and Lunan.
   Whitmyer, J.

On November 30, 1912, Sarah Boss, widow of John Boss, late of the county of Franklin, in this state, leased a farm located in said county to the defendant La Page, by a lease in writing and under seal, for five years from March 17, 1913, for two hundred dollars per year, to be paid from the proceeds of the farm milk, which was to be delivered at a certain creamery at the rate of thirty dollars per month from the first day of May in each year until pajd, with a proviso that the rent for each year should be paid on or before the twentieth day of December in the year. The lease required La Page, among other things, to plow as much land each fall as was plowed at the time of taking possession, to pay all highway taxes, to keep buildings and fences in repair, to cut logs, if Mrs. Boss wanted any, and draw same to mill and lumber from mill to farm for repairs, without expense to Mrs. Boss, to cut six cords of wood for her house each year and draw same out at the beginning of sleighing, and to seed down eight acres of plowed land to meadow each year, except the last. Mrs. Boss had a life estate in the farm under her husband’s will. Plaintiff and defendants Thompson and Lunan are daughters and the remaindermen under their father’s will, plaintiff being seized of an undivided one-half, Mrs. Thompson of an undivided one-third and Mrs. Lunan of an undivided one-Mxth. La Page entered and paid the rent for the first year and the May and June instalments of thirty dollars each for the second year, when Mrs. Boss died. She died on August 27, 1914, leaving a will, in and by which she gave all of her property to Mrs. Lunan and named her as executrix. ' The July check for thirty dollars' was dated August 25, 1914, was made payable to Mrs. Boss and was received by Mrs. Lunan after her mother’s death. On the day after the funeral the sisters consulted Mr, Bellas, who is now attorney for La Page, about the rights of the parties. He read the lease to them and advised them that La Page had the right to remain for the balance of the year and that they had the right to receive the rent for that time and to have the. checks for same made payable to the “ John Boss Estate.” A few days later plaintiff and Mrs. Lunan went to the creamery and plaintiff directed that the checks be made payable to the estate for the remainder of the year. From the creamery they went to the farm. Mrs. Thompson was not with them. La Page claims that they asked about the payments of rent, that he told them, and that plaintiff said that everything was to go on as before until his time was up, except that the Checks were to run to the estate. He testified further that he told them that Mrs. Boss had agreed to shingle the hog pen and shed and one side of the bam, but that plaintiff said that she was short and that he replied, if she could shingle the hog pen and shed that he would wait until the next year for the barn, and that she told him to do so. And he testified also that they asked him if he-had finished- shingling and that he told them that he wanted to do a little more but that he did not have the' shingles, and that plaintiff directed him to get them from Mrs. Lunan and finish. -Mrs. Lunan testified that plaintiff directed him to dp as he had been doing, but that no time was mentioned. Plaintiff testified that she did not talk with him about the farm on that day but that Mrs. Lunan did, thinking that she could handle him better. And she testified further that Mrs. Lunan told him that she wanted to let him know about the change and that they wanted the farm in the spring so as to settle the estate, and that he said that he had repaired and seeded and that he showed the seeding and that she- replied, “we will make that right.” La Page remained on the farm and claims that he subsequently obtained three-quarters of a bundle of shingles from Mrs. Lunan and finished the shed, that he repaired the cow-stable floor, that he plowed and top-dressed about twenty acres of new -seeding, that he cut six cords of wood and drew same to the sugar house and that he paid -a road tax the latter part of March, 1915, for the next year. He said that the wood is at the sugar house now. The tax was paid after the commencement of the action, and plaintiff and Mrs. Lunan testified that, so far as they knew, he simply finished shingling the shed. Checks were thereafter made out and received as follows : September 25, 1914, thirty dollars; October 26, 1914, thirty dollars; December 11, 1914, thirty dollars, and December 25, 1914 twenty dollars. The sisters indorsed them and divided the proceeds according to their rights. On December 11,1914, they talked about the sale of the farm at Mrs. Lunan’s house in Fort Covington. Plaintiff testified that the price was fixed before that. Mrs. Lunan and Mrs. Thompson testified that they did not want to sell and. that plaintiff did, but that she said that La Page could remain if they could not sell advantageously. A day or two thereafter plaintiff and Mrs. Thompson wrote to Mrs. Lunan from their homes, just over the line in Canada, not far from Fort Covington, and asked her to have a notice to quit prepared. She did so and signed it and sent it to plaintiff, after which plaintiff and Mrs. Thompson signed it. The notice was dated December 15, 1914, was served by plaintiff in the presence of Mrs. Thompson on December 16, 1914, and required La Page to quit on or before March 17,1915. Plaintiff tried to sell the farm to La Page at different times but they could not agree upon a price. He admits that she called upon him two or three times for that purpose, but he said that he did not tell her at any time ■that he wanted to buy, that “ he did not tell it that way,” He did not vacate, as required, and plaintiff commenced this action in partition on March 17, 1915. At the close of the evidence plaintiff moved for the' direction of a verdict and defendants for a dismissal of the complaint, on the ground that plaintiff was not in possession of the farm when the action was commenced. Decision was reserved and, pending same, the question whether or not the lease was adopted was submitted to the jury. The answer was in the affirmative and plaintiff has moved that the finding be set aside and for judgment, and defendants have moved for a dismissal. La Page is chargeable with notice of the title of Mrs. Boss, 24 Oye. 1043, n. 14. Her death terminated the lease absolutely. McAdam Landl. & Ten. (4th ed.) 209, § 65; 16 Cyc. 640; Torrey v. Torrey, 14 N. Y. 430; McIntyre v. Clark, 6 Misc. Rep. 377; Snedecker v. Thompson, 26 id 160. Thereupon he became entitled to emblements, namely, to the crops planted by him prior to her death. McAdam, supra, 836, 837; Gerard Titles (5th ed.), 214; 16 Cyc. 620, 621; 24 id. 1070, 1071; Harris v. Frink, 49 N. Y. 24. He continued in the use and occupation of the farm. Without an agreement he would have been a tenant at sufferance. 16 Cyc. 640, 641, n. 61; 24 id. 1043, n. 14. There was no writing, but . he claims that the lease was adopted. The sisters were acquainted with its provisions. Plaintiff and Mrs. Lunan were at the farm a day or two after the funeral.. ■ Mrs. Thompson was not with them. La Page testified that plaintiff told him about the directions for the change in the Checks and told him to continue until his time was -out. Mrs. Lunan agreed with him, except that she said that no time was mentioned. Plaintiff testified that Mrs. Lunan did the talking and fold La Page that they wanted the farm in the spring, so as to settle up the estate, and that La Page thereupon called attention to the repairs, which he had made, and the seeding which he had done, and that Mrs. Lunan replied, ‘; we will make that right. ’ ’ And Mrs. Thompson, so far as appears, did not talk with him until the time when the notice was served; so that the evidence fails to show an oral agreement. It would have been insufficient if there had been one. Real Prop. Law, §' 242. And the payment and acceptance of rent and the subsequent acts of La Page, assuming that he did what he claimed, did not and could not affect an adoption, because the lease was terminated. McAdam, supra, 509; 24 Cyc. 912, n. 50; Coakley v. Chamberlain, 38 How. Pr. 483. Undoubtedly the payment and acceptance of rent effected a new tenancy. McAdam, supra, 209; 16 Cyc. 640, n. 58. McAdam says that acceptance of rent by the remainderman, in a case where the lease is determined by the death of the life tenant, is evidence of a new tenancy from year to year, so as to render a notice to quit necessary. In this case, however, the facts and circumstances show that the parties agreed to a tenancy only for the balance of the farm year. The lease was a farm lease. The death of Mrs. Boss terminated it on August 27, 1914. The sisters were advised a few days thereafter that La Page had the right to remain until the end of the year and that they had the right to accept the rent for that time and to have the checks for same made payable to their father’s estate. Thereupon plaintiff gave directions accordingly and she and Mrs. Lunan went to the farm immediately thereafter to tell La Page about the change. The parties do not agree as to what took place there,.but the evidence tends to confirm plaintiff’s statement. She said that Mrs. Lunan told La Farge about the change and that they wanted the farm in the spring, and that La Page called attention to the repairs which he had made, and to the seeding which he had done, and that Mrs. Lunan replied that they would make that right. The sum of ninety dollars had been paid at that time. La Page remained on the farm and paid the balance for the year in three payments of thirty dollars each and one payment of twenty dollars. December 25, 1914, was the date of the last payment. On December 11, 1914, the sisters conferred about selling the farm. The price was fixed before that. On December 16, Í914, a notice to quit, signed by all of them, was served on La Page. At that time plaintiff tried to sell the farm to him, but they could not agree on the price. They talked ■ about the matter at different times. He admitted that she called upon him two or three times, but claimed that he did not tell her that he wanted to buy, that ‘ ‘ he did not tell it that way. ’ ’ There was no question for the jury, so that the finding made should be set aside and plaintiff should have judgment.

Judgment accordingly.  