majority">Field, J.

The death of Nathaniel Cummings terminated the tenancy at will of the defendants. The plaintiff and her sister are the heirs at law of Nathaniel Cummings, and in the absence of any contract with them or with any one else for the occupation after the death of Cummings, the defendants would be liable to pay rent to the heirs at law as owners, by virtue of the Pub. Sts. c. 121, § 3 (Gen. Sts. c. 90, § 25). It was competent for the court to find on the evidence, and apparently the court has found, that the defendants made no contract for the occupation of the premises with the plaintiff as administratrix, or with the plaintiff in any capacity. The agreement between the heirs that the plaintiff should be appointed administratrix, and should manage the real property and account to the estate of Cummings for the rents, did not vest the title to the real property in the plaintiff as administratrix. She, as administratrix, was not sole seised of the real property, but she and her sister remained jointly seised of it, as heirs. The Pub. Sts. c. 144, § 5, (Gen. Sts. c. 98, § 8,) provide a method of accounting when an executor or administrator uses, occupies, or receives the rent of real estate with the *264assent of the heirs, but such an executor or administrator occupies as an agent of the heirs, unless he is an heir himself and occupies in his own right. Almy v. Crapo, 100 Mass. 218.

Whether the plaintiff could sue as administratrix, if, while in possession as such, she had let the premises to the defendants, or they had promised to pay rent to her, need not be decided. As no contract with the plaintiff has been found to exist, the suit should have been brought by the heirs at law.

Exceptions overruled.

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