contract. This rule is elementary, and among other numerous authorities in support thereof we cite the following: Tracy v. Albany Exchange Co., 7 N. Y. 472, 57 Am. Dec. 538; Chicago Title Trust Co. v. Smyth, 94 Iowa, 401, 62 N. W. 792; Meeks v. Ring, 51 Hun, 329, 4 N. Y. Supp. 117; Bishop on Contracts, § 1343; 2 Kent Com. 555. If it should be assumed as a fact, which was quite possible, if not probable, that in this case the appellant claimed and was conceded the right of possession of the demised premises on the 1st day of December, 1904, the date of the lease, then the term would have commenced on that date by mutual consent of the parties construing their own contract. and hence would have ended on the 30th day of November, 1906, because the full term of two years would have ended on that day. If, upon the other hand, the right to possession had been denied on the 1st day of December, 1904, or possession was not taken on that day, then the term of two years could not have ended until midnight of the 1st day of December, 1906. In this connection the appellant alleges in one part of its complaint that the lease was entered into on the 1st day of December, 1904, whereby the premises in question were granted to it for the term of two years "thereafter"; and in another part of the complaint it is alleged that upon the execution of the lease appellant entered into possession of the premises. Under these allegations, in view of the terms "from" and "until," together with the phrase "a term of two years," as used in the lease, with regard to fixing the beginning and ending of the term granted, it might possibly be assumed that the appellant did or did not take possession on the 1st day of December, 1904, the day the lease was executed, and upon its execution, as is alleged, possession was taken. Respondents, however, demurred, and thus raised the whole question as one of law and not of fact. By doing this we think they must be bound by a fair construction of the terms of the lease in fixing the term granted. If, therefore, we give appellant the benefit of all doubts on this question, and assume that under the terms of the lease the original term did not begin until the 2d day of December, 1904, and thus ended on midnight of the 1st day of December, 1906, what, then, are its rights?

This brings us to the second proposition above stated. Here, again, we must have regard to the language employed by the parties, and their intention must be determined from this language, the subject-matter of the agreement, and the circumstances surrounding them. The clear purpose of the parties, as gathered from their words and acts, is that the one desired to obtain a lease of certain premises for a term of two years, and the other intended to grant just that, and coupled with this grant they provided for a right or an option to appellant to have an additional term of three years by a renewal

of the old lease. This option, however, was based upon a condition to be performed by appellant, to wit, a request for such renewal. All this is conceded, but appellant insists that the option was to be exercised by a request to be made only as stated in the lease "at the expiration of the term of this lease." If this phrase were to be applied to the exercise of the option alone, without keeping in mind the subject-matter to which it was coupled and the thing to which the minds of the parties were directed, there might be some force in appellant's contention that "at the expiration of the term of this lease" should be limited so that it, at least, did not mean before the end of the term, but that it meant, strictly applied, at the very end thereof, or immediately after the term had expired, which would be the day following. Counsel cites authorities to the effect that, where a notice of sale was to be given for 30 days a sale could not legally be held until the day after the last date, or, where the right of redemption is given, a party has the full time in which to redeem; and some cases are cited where the right to purchase was given at the expiration of a certain period, that an offer on the day following the expiration was in time. The following cases illustrate the rule as applied to that class of cases: Annan v. Baker, 49 N. H. 161-170; Wiggin v. Peters, 1 Metc. (Mass.) 127; Farwell v. Rogers, 4 Cush. (Mass.) 460; Steuart v. Meyer, 54 Md. 455-463; Burgess v. Burgess, 117 N. C. 447, 23 S. E. 336; Weld v. Barker, 153 Pa. 465-470, 26 Atl. 239; Herman v. Winter (S. D.) 105 N. W. 457. The foregoing cases are, however, distinguishable from the case at bar, because they are controlled by some statute, or are based upon some particular contract, where the computation of time, as limited, is in accordance with the evident intention of the parties when applied to the facts and subject-matter of their contracts. If this be done in this case, we can conceive of no serious difficulty in arriving at a correct solution of what the duties of appellant were with respect to exercising the option, and the time within which it had to be done. To arrive at a correct result, we must not only keep in mind the language employed, but also the object or end in view which was sought to be accomplished in using it. Appellant was given an option to obtain a new lease for the demised premises. When was the new term to begin? Immediately upon the expiration of the old. How was the object to be made effective? By making a request for a new term. These propositions admit of neither doubt nor dispute. It seems clear, therefore, that the request was intended as a prerequisite upon which a new term depended. It is likewise clear that the new term was to begin immediately upon the expiration of the old without any interval of time between the two terms. If, then, the new term was to begin immediately upon the expiration of the old, and the new term was

to depend upon the request to be made by appellant, it seems not only the natural but the logical answer is that the request was required to be made at a point of time, either before and in no event later than the termination of 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 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 had 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 hereinbefore 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, 9 Colo. App. 478, 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 terin; 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., 28 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 appel

lant 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 sufficient, 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 appelant's manager, 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.

(32 Utah, 469)

In re OWEN'S ESTATE. JOHNSON v. ARMSTRONG. (Supreme Court of Utah. July 17, 1907.) 1. ADMINISTRATORS APPOINTMENT — JURIS

DICTION.

Rev. St. 1898, § 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 jurisdic tion, is entitled to credit for reasonable disbursements, costs, and expenses, including attorney's fees.

3. SAME-COMPENSATION-VOIDABLE APPOINT

MENT.

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.

4. SAME COMPENSATION-SUCCESSIVE ADMINISTRATIONS.

Where an estate is administered by successive personal representatives, compensation should be apportioned among them according to the services rendered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 2130.] 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.

Appeal from District Court, Third District; George G. Armstrong, Judge.

Petition by Charles W. Johnson for letters of administration on the estate of William G. Owen, deceased. Subsequently a petition was filed by Margaret Williams, praying that S. P. Armstrong be appointed administrator. An order granting letters to Johnson was reversed on appeal (85 Pac. 277), and on remit

itur Armstrong was appointed. From an order modifying the account of Johnson, and, as modified, approving the same, Armstrong appeals. Remanded, with instructions to modify the order appealed from, and the order, as thus modified, affirmed.

H. G. Shepard and S. P. Armstrong, for appellant. Thompson & Gibson, for respondent.

STRAUP, J. William G. Owen died intestate on the 30th day of March, 1905, in the state of California. At the time of his death he was a resident of Salt Lake county, state of Utah, and owned real and personal property in that county. On the 27th day of June, 1905, the respondent, Charles W. Johnson, filed a petition, in which he alleged the death and late residence of the deceased, the value and description of his property, that his next of kin and heirs at law were unknown, that the deceased was indebted to a corporation of which petitioner was secretary, that the deceased left no will, and prayed that letters issue to himself. On the 28th day of June, 1905, Margaret Williams, a sister of the deceased, also filed a petition, in which she alleged the same facts as above set forth with respect to the intestacy, residence, and property of the deceased, and in addition thereto alleged that the deceased left surviving as heirs at law the petitioner, his sister, who resided in England, and another sister and nephew, whose residence was unknown, objected to the appointment of respondent, and prayed that letters issue to appellant, S. P. Armstrong, a resident of this state. The petitions were heard together, and upon hearing the respondent was appointed administrator of the estate, who thereupon qualified, took charge of the assets, filed an inventory, published notice to creditors, and otherwise proceeded to administer the estate. On appeal to this court from the order appointing respondent it was decided that Margaret Williams had the better right to the appointment of her nominee, and that the court erred in appointing the respondent. In re Owen's Estate, 30 Utah, 351, 85 Pac. 277. On remittitur, the district court revoked the appointment of respondent, and appointed appellant, Armstrong. Thereafter the respondent filed an account, which showed that the real and personal property coming into his hands amounted to over $10,000. By way of disbursements he claimed a credit of $78.50 for court costs, publishing a notice to creditors, and filing an inventory and appraisement, and of $674.98 for general expenses, including taxes and interest on notes paid on behalf of the estate, supplies and labor in repairing buildings, and of which amount he paid $25 for an administrator's bond, and $200 for attorney's fees. He also asked an allowance of $237.75 for commissions. After deducting such disbursements the balance of assets was turned over to his successor. The appellant, as administrator

of the estate, objected to the allowance of the disbursements, except the taxes and interest paid, and especially objected to any allowance being made to the respondent for commissions, or attorney's fees, or court costs. Upon the hearing the district court allowed the account as presented by the respondent, with the exception that it allowed the respondent only $100 commissions and $100 for attorney's fees. With such modification, the court approved the account. From this order, appellant, Armstrong, has prosecuted this appeal.

He contends here, as he did below, that the appointment of respondent as administrator was void, that all acts done by him in the course of administration were of no force or effect, and that, with the exception of taxes and interest paid, the respondent was not entitled to reimbursement for other alleged costs or expenses. In support of such contention it is urged that this court on the former appeal held respondent's appointment void for want of jurisdiction. Such was not the effect of our holding. The statute provides that relatives are entitled to letters of administration in the order: (1) Surviving husband or wife; (2) children; (3) father or mother; (4) brothers or sisters; (5) grandchildren; (6) next of kin-and that administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court; that, if a person entitled to serve as administrator is not a resident of the state, he may request the court or judge to appoint a resident of the state, and such person may be appointed; that, if none of the relatives accept the administration, creditors shall be entitled to letters; and that letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to apply within three months after the death of the decedent and claim the issuance of letters to themselves. Under these statutes we held that the sister of the decedent, having filed her petition within three months after his death, had the superior right to the appointment of her nominee, and that the court erred in appointing the respondent. The effect of our holding was, not that the appointment of Johnson was void for want of jurisdiction, but that the appointment was erroneously made, and therefore was voidable.

It, however, is still contended, since the statute gave relatives three months after the death of the decedent in which to apply for letters, that until such time had expired, or the right to letters had otherwise been waived, the court was without jurisdiction to appoint any other person; that an allegation in the petition showing the expiration of such time, or waiver, was essential to confer jurisdiction on the court to appoint a person other than a relative; and that the petition

of respondent contained no such allegations. We think such averments are not essential to confer jurisdiction. The statute provides that petitions for letters of administration must be in writing, signed by the applicant or his counsel, and filed with the clerk of the court, stating facts essential to give the court jurisdiction of the case, and, when known to the applicant, the names, ages, and residence of the heirs of the decedent and the value and character of the property. Now, what are the facts essential to give the court jurisdiction? They are that the person whose estate is to be administered died intestate, and was at the time of his death a resident of the county in which the application is made, or, if not a resident, that he left an estate in the county to be administered. Wilkinson v. Conaty, 65 Mich. 614, 32 N. W. 841. By jurisdiction is meant the right to act and the power to hear and determine a cause or matter in controversy. The right to so act and the power to determine the cause is not dependent upon the correctness of the decision. The court here heard both petitions together, as it was required to do under the statute. Upon such hearing the court had the undoubted authority to appoint an administrator. So far as concerned its power to act, the court was not obliged to appoint either of the applicants; for, upon such hearing, the court was expressly authorized by statute (section 3813 Rev. St. 1898), for good and sufficient reasons, to appoint any competent person. Upon the hearing the court appointed the respondent. The judgment so rendered was erroneous, and was subject to correction on appeal; but it was not, for that reason, void or open to collateral attack. In speaking of statutes similar to ours, in Jones v. Bittinger, Administrator, 110 Ind. 476, 11 N. E. 456, the court said: "It is true, we think, that the provisions of section 227, supra, are mandatory in form and ought to be strictly observed, as well by the court as by the clerk in vacation, in granting letters of administration upon an intestate's estate. But it cannot be correctly said, as it seems to us, that letters of administration, granted by a court or clerk out of the order prescribed by statute, are absolutely null and void. The utmost that can be said, in such a case, is that letters so granted are voidable merely, and may be revoked or set aside, upon an application to the proper court for that purpose, made within the proper time and by the party entitled to priority in the issue of such letters."

The appointment of respondent must therefore be treated as valid until it was revoked in a proceeding for that purpose. Such a proceeding was brought, and such a judgment was rendered by this court. But the respondent, who apparently acted in good faith, and who qualified and accepted the trust to which he was appointed, and who proceeded under his appointment to administer the estate, would be entitled to credit

for reasonable disbursements, costs, and expenses, and for commissions earned in the proper discharge of that trust during the time of his appointment. Rice v. Tilton, 14 Wyo. 101, 82 Pac. 577. As bearing on the question, see also, Atkinson v. Hasty, 21 Neb. 663, 33 N. W. 206; Pick v. Strong, 26 Minn. 303, 3 N. W. 697. This is also in harmony with the statute (section 4043), which expressly provides that, when the judgment or order appointing an administrator is reversed on appeal for error and not for want of jurisdiction of the court, all lawful acts in administration performed by such administrator are as valid as if such judgment or order had been affirmed. We therefore are of the opinion that the respondent was entitled to an allowance of reasonable costs and expenses including attorney's fees.

We are also of the opinion that the respondent is entitled to reasonable commissions or compensation for services rendered by him during the time of his administration. The statute however, provides that the administrator shall be allowed commissions upon the amount of the estate accounted for by him-for the first $1,000 at the rate of 5 per cent.; for all above that sum, not exceeding $5,000, at the rate of 22 per cent.; for all above $5,000 and not exceeding $10,000, at the rate of 2 per cent.; and for all above $10,000 at the rate of 1 per cent.; and in all cases such further allowance may be. made as the court may deem just and reasonable for any extraordinary services, but the total amount of such extra allowance must not exceed the amount of commissions allowed by the foregoing provisions. The general rule, of course, is that where an estate is administered by successive personal representatives, the compensation should be apportioned among them according to the services rendered. 18 Cyc. 1159. But, as was said by the Supreme Court of California with reference to statutes similar to ours, there is but one aggregate sum to be allowed as commissions, which, in case of successive administrations, must be properly apportioned by the court. There is, however, no basis upon which to make an apportionment until the closing of the estate. "We scarcely see how sound judgment can determine how much the first administrator is entitled to, unless it knows and considers what the successor has done, and what the comparison is between his acts and those of his predecessor. The administration of an estate is an entirety. There may be different persons in office at different times, or at the same time; but the claim of each to compensation must be considered with reference to the rights of each and all of the others." Estate of Barton, 55 Cal. 87. In Re Levinson, 108 Cal. 450, 41 Pac. 483, 42 Pac. 479, this case was approved and followed.

We are of the opinion that the allowance of commissions was prematurely made. The case is therefore remanded, with instructions