#### David Wait, Appellant, &c.

A lease of a brick-yard in which the rent is to be a certain sum of money on every thousand of bricks manufactured by the lessee, and in which the lessee covenants to manufacture a certain number at least, every year, contains a provision, that in lieu of the money for the rent, the lessor may“ at his option from time to time, as bricks shall be manufactured by ” the lessee,e< take to himself and appropriate to his own use at the fair market price, at the kiln, such quantity of bricks as shall be fully equivalent to the sum which ” the lessee has stipulated to pay. It *seems9*that the lessor has no property in the bricks under this provision, until he takes possession of them, and that his right of election ceases at the death of the lessee.

Therefore, the lessee having died, and his administrator having inventoried all the bricks manufactured by him which remained on hand, as a part of his estate, which proved insolvent, and the lessor having afterwards entered and taken a sufficient quantity of bricks to pay the rent due to him ; it was *held,*that the ad® ministrator was chargeable in his administration account with the value of the bricks so taken, at the price at which they were inventoried.

This was an appeal from a decree of the judge of probate, which disallowed a certain charge in the account rendered by the appellant, as administrator of William Buckley. The item disallowed, was the following charge against the estate, *viz.*“ 39,570 bricks appraised belonging to Judge Ward, $217,63.”

The facts in relation to this charge, are as follows. These bricks were included in the inventory of the estate, with which the appellant was charged.

Artemas Ward, on January 1, 1823, leased by indenture to Buckley, the intestate, a brick-yard on Lechmere Point, to hold till January 1, 1828 ; “Ward reserving to himself the right of expelling said Buckley from the premises, if he shall fail to perform all and each of his several covenants hereinafter mentioned.”

“ Secondly, the said Buckley, during the term aforesaid, may manufacture bricks from the clay upon the premises, to *106any amount that he may think proper, and when made, appro priate the same to his own use.”

covenants, first, that every year, during the continuance of the lease, he will manufacture, at least to the amount of 400,000 bricks, and pay for the clay, for every thousand of bricks, the sum of fifty cents, and the like sum for each thousand he may make over and ab> ve 400,000. Secondly, that he will pay to Ward on the first day of December annually during the continuance of the lease, such su *i*of money as may at those times respectively be due to Wa d under the contract: “Provided, however, and it is expressly agreed and understood by and betwe/ n the parties to these presents, that in lieu of such sum of money, to be paid as aforesaid, said Ward may, at his option, from time to time, as bricks shall be manufactured by said Buckley, take to himself and appropriate to his own use, at the fair market price, at the kiln, such quantity of bricks as shall be fully equivalent to the sum which the said Buckley has stipulated to pay as aforesaid.”

A contract for the sale of a kiln of bricks by Buckley to A Townsend, dated November 16, 1824, contains the following clause, — “ The bricks are hereby sold to said Townsend, subject to the lien of Hon. Judge Ward, for the land rent, and to no other lien.”

Buckley, in 1825, dug clay in the brick-yard and manufactured 374,000 bricks ; and died November 23, 1825, leaving 187,000 bricks in the yard, not having paid Ward for any part of the clay. Ward, after Buckley’s death, entered into the yard for the non-payment of the money for the clay, the 187,000 bricks still remaining in the yard, no part of them having been taken, sold, or disposed of by the appellant. Ward, in May, 1827, which was as soon as a market' could be obtained for bricks at a fair price, took 39,570 bricks, part of the 187,000, at 5 dollars a thousand, at the kiln, as payment for the clay. The appellant afterwards took and sold the residue of the bricks at 5 dollars a thousand, and was charged for them at that rate by the judge' of probate, in the settlement of his account, Buckley’s estate was declared insolvent, but Ward did not exhibit any claim against it before the commissioners appointed to receive and examine claims.

*107*Jan.*1st, 1829, *in Suffolk.*

*S. D. Ward,*for the appellant.

Wait having inventoried the 39,570 bricks, is liable to be charged with them, unless he can show some good excuse for not being so. This he has done. Ward, by the terms of the lease, had the right to take these bricks to pay his rent. Buckley, during his lifetime, had no power to prevent him from taking the bricks. The death of Bucldey does not affect the rights of Ward. The administrator has the same rights with regard to the property that Bucldey had, and no more. The question here is not between Ward and an attaching creditor of Buckley, but between Ward and Buckley’s administrator. Suppose the case of a pledge, the administrator takes*the property pledged, subject to the rights of the pledgee. Though the landlord has in this State no right to distrain as in England, yet his claim for rent is always to be favored. In England, if the lessee dies before the expiration of the term, and his administrator continues in possession during the remainder of the term, the landlord may enter and distrain for the whole rent. *Braithwaite*v. *Cooksey,*1 H. Bl. 465. If the administrator in England cannot object to this, why should Buckley’s administrator be allowed to object here ? So in England the lessor may enter and distrain after an act of bankruptcy by the lessee, and hold against his assignees.

If land were let at the halves and the owner had leave to take his half of the produce, if the lessee should die before a division of the produce, could not the lessor still enter and take his half ? It may be said that in the present case the lessor has merely a power to enter and take the bricks, which ceased by the lessee’s death. But this is a power coupled with an interest in the thing itself, which survives the party giving it. *Hunt*v. *Rousmanier,*8 Wheaton, 203. Ward had a right to enter and take and sell the bricks for himself to pay himself; he did not act in the name or as the agent of Buckley. The contract was in fact an assignment of so many bricks as should be necessary to pay Ward. The property was at the time incapable of being delivered. If a seaman assigned his share in the proceeds of a whaling voyage, would not the assignee be entitled to the sailor’s share of the oil, in preference to the administrator, although it did not arrive, and therefore no possession had *108been taken during the life of the sailor ? If the indenture m this case ^oes not sb°w a ben, the contract with Townsend proves a contract giving a lien. It is an express averment by Buckley that Ward had a lien. It is written evidence of a contract with Ward creating a lien ; and it is not necessary that this contract should itself be in writing in order to take it out cf the statute of frauds ; it is sufficient if the evidence of it is m writing. *Penniman*v. Hartshorn, 13 Mass. R. 91 ; 2 Stark. Ev. 603, 605 ; *Welford*v. Beazeley, 3 Atk. 503. Acts done after a contract are evidence to show what it was. 2 Stark. Ev. 383, 448, 883. *Saville*v. *Robertson,*4 T. R. 720 ; *Snaith*v. Mingay, 1 Maule & Selw. 92.

If the administrator is chargeable with the bricks at all, it can only be at 5 dollars a thousand, the price for which the remainder sold, not 5 dollars and 50 cents, the price at which they were inventoried.

*But trick, for the*creditors of the intestate,

contended that under cur insolvent laws, which operate on the estate of the insolvent immediately on his decease, Ward could have no right of taking the bricks. The policy of the laws, which is to make a ratable distribution of the estate among all the credi tors, would be defeated, if a creditor in the situation of Ward could have a right to appropriate a part of the property to pay himself. *M'Donald*v. *Webster,*2 Mass. R. 498 ; *Hunt*v. *Whitney,*4 Mass. R. 620 ; *Coleman*v. *Hall,*12 Mass. R. 570; *Wildridge*v. *Patterson,*15 Mass. R. 148; *Walker*v. *Hill,*17 Mass. R. 380 ; *Cox*v. *Morgan,*2 Bos. & Pul. 398; *Vernon*v. *Hall,*2 T. R. 648 ; *Lingham*v. *Biggs,*1 Bos. & Pul. 82 ; *Cooper*v. *Chitty,*1 Burr. 20.

Ward’s title was defective from the want of any delivery to him. *Marston*v. *Baldwin,*17 Mass. R. 606 ; *Penniman*v. *Hartshorn,*13 Mass. R. 87. Ward’s being owner of the soil gave him no more r'ght over the bricks than any other person. A clause that he might pay himself out of any other property would have been equally effectual. It was altogether uncertain what particular bricks belonged to Ward ; the bricks on the soil were constantly changing. The clause is not a sale, as no price was fixed. 2 Kent, 390. To give the effect to this clause,- which it is supposed to have, would be a fraud on cred*109itois. *Edwards*v. *Harben,*2 T. R. 587 ; *Bartlett*v. Will*iams,*1 Pick. 288. Ward could have no lien on the bricks, because he was not in possession. *Graham*v. *Craig,*3 T. R. 119 ; *Sweet*v. *Pym,*1 East, 4. On the other hand, on the death of Bucldey, a lien was created in favor of his creditors. *Wyman*v. *Brigden,*4 Mass. R. 150; *Hunt*v. *Whitney, 4*Mass. R. 620. This lien operated like an attachment, and thus deprived Ward of his right to make a complete title" to the bricks by taking possession of them. The lease operated as a mere license to Ward to enter, which became void on Buckley’s death. *Johnson*v. *Carter,*16 Mass. R. 443. It is said that Ward had an authority coupled with an interest, which would therefore survive. But this is doubtful. An authority to enter on real estate and cut timber is revocable. *Tillotson*v. *Preston,*7 Johns. R. 285. A lease at will is an authority coupled with an interest, and yet is determined by the death of the lessor. *Anonymous,*3 Salk. 223 ; *Ellis*v. *Paige,*1 Pick. 43 ; *Rising*v. *Stannard,*17 Mass. R. 282. Ward, under the lease, had merely a license to enter on the land and do a particular act. *Cook*v. *Stearns,*11 Mass. R. 537 ; Vin. Abr. *License,*A, *E, D, G.*

The opinion of the Court was afterwards drawn up by

Parker C. J.

The judge of probate charged the administrator with the value of a certain quantity of bricks which were in the possession of the testator at the time of his death, and which belonged to his estate, and were properly chargeable to the administrator, unless by virtue of the contract sub sisting between him and Judge Ward, the latter had such a property or lien upon the bricks as authorized him to take possession of them and dispose of them to his own use. And we cannot perceive that he had such an interest by virtue of that contract. By the terms of the lease, the intestate acquired a full right to the yard for the time. He had a right to use the clay for the purpose of making bricks, and was required to make a certain quantity every year. He stipulated to pay a rent which was regulated by the quantity of bricks made, and tins rent was payable in cash, so that the property in the brides was unquestionably in the intestate ; they were liable to attachment as his in his lifetime, and at his death those remaining un*110sold were assets in the hands of his administratoi. The right reserved to the lessor of taking bricks instead of money, gave him no present property, nor even a lien until he had signified his election by actually taking the bricks, and that right of election ceased with the life of the lessee, for at the very instant of his death the property was fixed, so that no subsequent act of the lessor could change its character.

It is not the case of a power coupled with an interest, which it is said is not terminated with the life of him who grants it;1 for in such cases the interest in the thing about which the power is to be exercised, must be a present interest. In this case there was no interest in the bricks until the lessor should have taken possession of them by virtue of the reservation in his contract.2 The lessee might have sold the whole kiln without violating his contract and the purchaser could not have been defeated by this claim ; and on the appointment of the administrator, he came into the full right of the intestate, and was immediately accountable and obliged to make an inventory thereof. The case cited by the counsel for the appellant from 1 H. Bl. 465, is upon the right of a lessor to distrain for rent which accrued after the decease of the lessee. This has very little analogy to the case before us ; for in the first place, we think there is no right of distress in this Commonwealth for rent, and besides, the right of the lessor in the case cited seemed to depend upon certain statutes which have no force here.

The principles adopted in the case of *Butterfield*v. Baker, 5 Pick. 522, seem quite applicable to this case.

We think the decree of the judge of probate was right, and therefore it must be affirmed with costs.

1

 2 Kent, (3d ed.) 646; Chitty on Contr. (4th Am. ed.) 172 and note 4,

2

 See Chitty on Contr. (4th Am. ed.) 299, 300, and notes