¶1delivered the opinion of the Court.
¶2The two tons of hay, which the defendants were to receive of the husband of the plaintiff, for the rent of the place upon which it was cut, not being severed and set apart for the defendants, or delivered to them, rested in contract between the parties, and the hay cut be*139longed to the estate, if there was no new contract between the plaintiff and the defendants, after the decease of the husband. Bennett v. Platt, 9 Pick. 558. The witness to the first bargain, received an impression, although no such thing was expressly said, that the defendants were to have a lien upon the whole produce of the farm, until their rent was paid ; or they were furnished with other personal security. The jury have not settled the fact, whether the parties did so agree. But the defendants might waive their lien, and from what Parker, one of them, said to a witness, who inquired to know whether he could safely cut hay under the plaintiff, there is reason to believe that they waived, or did not insist upon their lien, if they were ever entitled to any, under the original contract. Or if the jury were satisfied, under the instructions of the Chief Justice of the Common Pleas, that the defendants recognized the plaintiff as their tenant at will, before the hay was cut, after it was cut, it would be her property ; and the jury therefore were correctly instructed as to her right, if they should so find the fact. The testimony to warrant this finding, may not be entirely satisfactory; but upon the fact assumed, the law was properly given to the jury. Judgment affirmed.