Israel v. Beale

• Decision Date: 16 January 1930
• Citation: 169 N.E. 777,270 Mass. 61
• Parties: ISRAEL v. BEALE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

270 Mass. 61

169 N.E. 777

ISRAEL

v.BEALE.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 16, 1930.

Appeal from Superior Court, Suffolk County; S. E. Qua, Judge.

Action by Isidor Israel against Arthur M. Beale, as administrator with the will annexed of Sarah M. Aldrich, deceased. From an order sustaining a demurrer, plaintiff appeals. Reversed with directions.

A. Moskow and J. I. Moskow, both of Boston, for plaintiff.

E. C. Park, of Boston, for defendant.

CARROLL, J.

The plaintiff, by an instrument, in writing, leased to Sarah Aldrich and Harriet E. Hutchinson, parties of the second part, a suite of rooms in a building, in Boston, ‘to be used and occupied solely and exclusively by the parties of the second part and by no other person or persons' for the term of one year from September 1, 1925; the lease to ‘continue in full force and effect thereafter from year to year, until one of the parties shall on or before the first day of July in any year, give to the other party written notice of their intention to terminate this lease, on the thirty first day of the following month, in which case the lease hereby created shall terminate in accordance with such notice.’ The lessees covenanted that they and their executors and administrators would pay the rent which was payable each month in advance beginning September 1, 1925.

The lessees entered into possession and jointly occupied the premises until January 26, 1928, when Harriet E. Hutchinson died; thereafter the suite was occupied by Sarah M. Aldrich until her death on July 11, 1928. No notice to terminate the lease as therein provided was given by any of the parties. The plaintiff seeks to recover rent from August 1, 1928, to July 31, 1929, during which period the premises remained vacant. The action is against the administrator with the will annexed of Sarah M. Aldrich. In the Superior Court the defendant's demurrer was sustained; the plaintiff appealed.

The defendant contends that because of the provision in the lease that the suite was to be used and occupied solely by the lessees, the covenant to pay the rent extended only during the lives of the lessees. We do not agree with this contention. The restriction as to occupancy did not prevent the interest of the surviving lessee from passing to her executor or administrator nor relieve him from the obligation of paying the rent accruing after the death of Miss Aldrich. In Johnson v. Stone, 215 Mass. 219, 102 N. E. 366, it was held that the restrictive covenant not to lease or underlet or permit any other person to occupy the premises, while binding on the lessee did not prevent the leasehold interest from passing to the administrator of the lessee's estate. In that case the lessors recovered the rent.

The clause in the lease restricting the use of the premises to the lessees does not mean that the lease should be operative only during the lifetime of the lessees. The covenant to pay rent was binding on their executors and administrators; and this covenant was not limited to rent accruing in the lifetime of the lessees, for the rent was payable in advance on the first of each month and the lessor had power on default to enter and terminate the tenancy.

It has been held that where premises were leased exclusively for the sale of intoxicating liquor, and the tenant failed to secure a license for the sale of such liquor or the term of the lease continued after the enactment of the Eighteenth Amendment to the Federal Constitution and the passage of the act of Congress (27 USCA) to enforce its provision, the...