the old lease. Without this request, how would respondents know that a new term was desired? The phrase "at the expiration" therefore meant, and we think was clearly intended to mean, at a point of time at or before the old term was expiring, and not after it had actually expired and passed. Moreover, the new lease was by law required to be evidenced by a written instrument, and such likewise was the manifest intention of the parties. This, therefore, was not a lease where the tenant could extend the term by simply manifesting an intention to do so by some act or acts on his part, as in a case where two periods are named in a lease, one shorter than the other, and in which the tenant, at his option, may continue in possession for the longer term named. This class is illustrated by the following cases: Shamp v. White, 106 Cal. 220, 39 Pac. 537; Delashman v. Berry, 20 Mich. 292, 4 Am. Rep. 392; Thiebaud v. Bank, 42 Ind. 212.

The case at bar belongs to that class of cases where the contract expires absolutely, and a new term must be granted by the same formalities as was the old. If we assume, therefore, that the term fixed by the lease in question did not expire until midnight on the 1st day of December, 1906, then the appellant's rights to possession expired with that date. True, it was given the right to remove the improvements, if any, placed on the premises by it, but this did not extend the right to possession under the lease beyond the term fixed. This, at most, gave a right simply to enter upon the premises within a reasonable time for the purpose only of removing the improvements. The tenancy ceased on the expiration of the lease, and the right to rent terminated with it. If appellant remained in possession of the premises any time after the 1st day of December, it was not either as a tenant nor as a matter of right under the old lease. In order, therefore, to remain in possession any time after the old term expired, as a tenant, respondents would have to consent thereto, and for this reason doubtless provided that they would make a new lease at the expiration of the old, if requested so to do. This request, in view of all the circumstances surrounding 32 Utah-30

the parties, we think, should have been made at some time within the original term, and, at least, not after it had expired. This, in view of all the provisions contained in the lease we think, was also the intention of the parties. Where a notice of any kind is required to obtain a renewal of a lease, and a request is no less than a notice, the general rule seems to be that such notice must be given before the expiration of the old lease, or it will be too late. In 18 A. & E. Enc. of Law, 692, the rule is stated thus:

"Where a lessee for a term of years has the option to renew his lease, it seems to be the better doctrine that he must notify his lessor before the term expires whether he elects to renew, as the lessor should know at the moment when the lease expires whether he has or has not a tenant."

Appellant's counsel concedes this to be the rule where the lease does not fix the time when the notice must be given; but contends that, where, as in this case, the request need not be made until "at the expiration of the term," the request cannot be made before such expiration, and that “at the expiration" is just as much the day following as the day preceding the actual expiration. Quite true, if the parties hal named a given date on which the request must be made, that day would control; but they said "upon request of said lessee, at the expiration of the term of this lease they will continue and renew" for another term of three years. We do not think that by this it was intended to limit the time of the request to the exact moment when the lease expired, but that it could rightfully have been made before that time. Nor do we think, for the reasons herein before stated, that it was intended that the request could, as a matter of right, be made after the old lease had terminated. This also seems to be the holding of the courts, as appears from the following cases: Shamp v. White, 106 Cal. 220, 39 Pac. 537; Renoud v. Daskam, 34 Conn. 512; Darling v. Hoban, 53 Mich. 599, 19 N. W. 545; Tracy v. Albany Exchange Co., 7 N. Y. 472, 57 Am. Dec. 538; Thiebaud v. Bank, 42 Ind. 212; Strousse v. Bank (Colo. App.), 49 Pac. 260-262; Cooper v. Joy, 105 Mich. 374, 63 N. W. 414. In some of the foregoing

cases it is held that where a notice is required it must be given, and that mere acts are insufficient. It is further held in Darling v. Hoban, supra, that, where the tenant had the right of election at the termination of the lease to demand a renewal, such election and demand must be made either on or before the last day of the old term; and in Tracy v. Albany Exchange Co., supra, that, although the lease provided for the election at the "termination of the lease," it could be made before. But this court has also passed upon the question in the case of Tilton v. Sterling Coal & Coke Co., 29 Utah 173, 77 Pac. 758, 107 Am. St. Rep. 689. True, the court, in that case, had under consideration the question as to when a certain option to purchase expired. The option to purchase was, however, to be exercised "at the expiration" of a subsisting lease, and therefore the question as to the time when it should have been exercised was presented for decision, and it was decided that the option had to be exercised, if at all, on or before the last day of the term granted by the lease, and could not be exercised thereafter. We conclude, therefore, that in view of the authorities, as well as upon sound reason and principle, the appellant was required to make its request on or before the last day of the old term. Of course any time on the last day would have been suffi cient, but a request thereafter came too late. This also disposes of the question presented by appellant that the 2d day of December, 1906, the day after the expiration of the old lease, was a legal holiday. If, as we have held, the request should have been made on or before the end of the 1st day of December, then it was of no concern that the request could or could not legally be made on the 2d day of December.

Appellant attempted to avoid the consequences of a late request by setting up some alleged equities. There is, however, no equity in the facts pleaded, even if proved just as alleged, that would authorize any court to grant the relief prayed for. Courts have no right to disregard any provisions of a contract, or to save rights that are lost thereunder through the act of the party asking relief, unless it is made to appear that it would be unconscionable or clearly inequitable to do, or not

to do so. Nothing of that kind appears from the pleadings in this case. Appellant pleads nothing that would have prevented it from making the request at the proper time except mere inadvertence. The concealment attempted to be alleged does not amount to such. Appellant's manager knew, and always must have had the ready means of knowing, when the old lease expired. This fact could not have been concealed from him in view of the allegations of the complaint. Appellant, therefore, cannot predicate any right to relief upon this. Nor is the fact that at least two of the respondents had knowledge, through conversations with appellant's manage, that he intended to request a new lease available. A mere intention to make a request was not sufficient. The allegations do not go to the extent that respondents in any way prevented appellant's manager from making a request.

Finally it is claimed that the contract should be construed and applied most strongly against respondents under the equity rule, which seeks to prevent forfeitures, and that the acts of appellant in seeking a renewal should be favorably considered in its behalf for the same reason. But the rule contended for has no application to the facts in this case. No forfeiture is involved. Appellant at most, lost nothing but an opportunity by not performing a condition required of it, which was necessary to the enjoyment of a right to an additional term, and which was to be paid for when obtained. If a man is invited to attend a sale of his neighbor's property at a certain time, and is given the right of bidding for and purchasing it, and fails to attend the sale at the hour fixed, he may miss an opportunity, but he forfeits nothing. So here, appellant simply lost the right to a renewal of a new term. He forfeited nothing in the legal sense that that term is used to respondents.

The ruling of the court upon the demurrer was clearly right, and the judgment is affirmed, with costs.

MCCARTY, C. J., and STRAUP, J., concur.

In re OWEN'S ESTATE.

JOHNSON v. ARMSTRONG.

No. 1845. Decided July 17, 1907 (91 Pac. 283).

Revised Statutes

1. ADMINISTRATORS-APPOINTMENT-JURISDICTION. 1898, section 3812, provides that relatives shall be entitled to letters of administration in the order therein prescribed. Section 3813 provides that, if none of the relatives accept, creditors shall be entitled to letters, and that if a dispute arises as to relationship between applicants, or if there is any other good and sufficient reason, the court may appoint any competent person. Section 3814 provides that letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to letters, when such persons fail to appear within three months after decedent's death and claim issuance of letters to themselves. Held, that though, under the statute, a relative applying within three months would be entitled to preference over a creditor, yet the expiration of that period, or waiver of the right to administration by the relative, was not essential to jurisdiction to appoint a creditor; hence the appointment of the secretary of a creditor corporation, a relative applying within three months, on a hearing of both petitions, though erroneous, was not void.

2. SAME-ACCOUNTING-VOIDABLE APPOINTMENT. An administrator, whose appointment, though erroneous, was not made without jurisdiction, is entitled to credit for reasonable disbursements, costs, and expenses, including attorney's fees.

3. SAME-COMPENSATION-VOIDABLE APPOINTMENT. An administrator, whose appointment though erroneous, was not made without jurisdiction, is entitled to reasonable compensation for services rendered by him during the time of his administration.

Where an

4. SAME COMPENSATION-SUCCESSIVE ADMINISTRATIONS. estate is administered by successive personal representatives, compensation should be apportioned among them according to the services rendered.

5. SAME. Under the statute declaring that an administrator shall be allowed commissions on the amount of the estate accounted for by him, there being but one aggregate sum to be allowed as commissions, which, in case of successive administrations, must be apportioned by the court, the allowance of commissions to the first of two successive administrators before the closing of the estate was premature.