59 A.2d 346 | N.H. | 1948
The usual rule is that a lease for a term of years descends as personal estate. Brewster v. Hill,
For the purpose of the present case, it may be assumed, without deciding, that the covenant "that he will not lease or underlet, nor permit any other person or persons to occupy the same" is one against assignment without the consent of the lessor. Upton v. Hosmer,
"A transfer by operation of law is not, in the absence of an express stipulation in that regard, within a provision against assignment, unless it is procured by the tenant merely for the purpose of avoiding the restriction." 1 Tiffany, Landlord and Tenant 929. This principle that an involuntary assignment or one by operation of law is not within the prohibition of the ordinary covenant against assignment without the consent of the lessor was applied in the case of Young v. Voudomas,
In Squire v. Learned,
In Francis v. Ferguson,
In the instant case the lease contains no language extending the privileges or the obligations to personal representatives of the lessee. Accordingly the general principle applies that a covenant against assignment, if any, is not binding on the personal representatives of the lessee. In other words the leasehold passes by operation of law to them and may be assigned by them. The law is well stated in 32 Am. Jur. 302. "The transfer of a leasehold estate, upon the death of the lessee, to his personal representative is by operation of law, and is in all cases admitted not to be a breach of a general covenant restricting the assignment of the leasehold estate. Also, according to the *161 generally accepted view, a sale of the leasehold in the course of administration will not constitute a breach of a covenant restricting assignments, unless the covenant by its express terms is to be binding on the personal representatives of the lessee; but where the lease expressly makes the covenant binding on the personal representatives, any transfer by the representatives is a violation of the covenant."
The plaintiff also contends that the administratrix was without right to renew the lease because she had no authority to continue the business of the decedent. The record does not disclose whether the defendant is holding the lease as administratrix or as sole distributee of the estate. Nor does it appear what authority the defendant administratrix had or did not have under the laws of Massachusetts to continue the business of John R. Monahan. By comity, in the absence of the appointment of an ancillary administrator in this state, foreign administrator may collect the assets of the estate located here when there is no prejudice to local interests. Ghilain v. Couture,
The plaintiff admits in argument that the administratrix acquired the balance of the original term of the lease but denies her right to exercise the option. If she acquired the remainder of the original term, she took with it all the rights and the privileges. If the term of the lease did not descend to her, then of course she would not have the right of the option to renew.
Judgment for the defendant.
*162All concurred.