DeCourcy, J.
The lease to the defendants expired on May 31.1908. They continued to occupy the premises until January 28.1909, paying the rent monthly in advance. Acting under the impression that they were only tenants at sufferance after the termination of the lease, they gave no written notice to end their tenancy under R. L. c. 129, § 12, that affects the period covered by the declaration. It was pointed out in the earlier case between the same parties that the defendants became tenants at will. As such they remained liable for rent unless the required statutory notice was waived by the landlord. Taylor v. Tuson, 172 Mass. 145. Leavitt v. Maykel, 203 Mass. 506.
*62The defendants contend that the tenancy was terminated by their surrender of the premises and the acts of the plaintiffs operating as an acceptance. The burden of establishing a waiver of the notice is upon the tenant. Whitney v. Gordon, 1 Cush. 266. We are unable to find that the landlord, expressly or by implication,' accepted the surrender of the estate. The plaintiffs, in their letter of February 2,1909, expressly stated that they did not accept any surrender and that the premises were at the disposal of the defendants. This claim is not deprived of its effect by the landlords’ mistaken opinion that the holding over by the tenants constituted a renewal of the lease. Nor did the occupancy of the store by Seiman during June and July operate to put an end to the defendants’ estate under the facts in this case. In their letter of February 2, the plaintiffs expressly stated: “If you wish us to find a tenant who will take the premises off your hands we will try to do this for you, but we do not accept from you any surrender of the premises, and we shall look to you for our rent in any event. ” They made no attempt to rent the store until the defendants gave them the agreement of March 20,1909, when the earlier case was pending. This agreement indicates that the plaintiffs did not intend to waive their legal claim against the defendants by taking possession. And the defendants were credited with the rent received from Seiman.
We are constrained to hold that the tenancy at will was not terminated and that the defendants are liable for the rent declared on. The rulings requested were rightly refused. Talbot v. Whipple, 14 Allen, 177. Fifty Associates v. Grace, 125 Mass. 161, 163. Whicher v. Cottrell, 165 Mass. 351.
Exceptions overruled.