It will be found that many of the interesting legal questions here presented have been already satisfactorily disposed of. The learned judge in his opinion overruling the demurrer to the complaint in this action (26 N. Y. Supp. 865) says: “A widow entitled to dower, who joins with the heirs in a lease of the real estate for a term of years, becomes vested, as against the tenant, with all the rights of a lessor, and her title to the premises and to the rents cannot be disputed by him. Her right of dower gives her an interest in the land which is capablé of being sold, transferred and mortgaged (Insurance Co. v. Shipman, 119 N. Y. 324, 24 N. E. 177; Pope v. Mead, 99 N. Y. 201; 1 N. E. 671; Payne v. Becker, 87 N. Y. 153); and there is no reason why she may not join with the heirs or owners of the fee in a lease of the land. * * * In making a lease she consents to the undisturbed possession by the tenant for the whole term, and must look to the rent for the satisfaction of her right to the rents and- profits of the land for that period. The tenant who has received the benefit of her jiarticipation in the lease cannot avoid payment of her proportion of the rent reserved. In view of the rights secured to the widow by the execution of the lease, as against the lessee, and also as against the heirs who joined with her as lessors, it is unnecessary to discuss the objections to an action against a grantee or a lessee of the heirs by a widow with dower unassigned, or to consider the .absence from this complaint of allegations material to such a cause *351of action, or to discuss the inability of a widow to execute a lease without the heirs. None of the objections which readily present themselves in any such supposed case has any application to an action like the present, founded upon a lease, the validity of which cannot be questioned, and which is brought to enforce the liability of the tenant, who, having secured by such lease a fixed term for a fixed rental, seeks to escape his obligations thereunder. It appears that after the execution of the lease the other lessors, who were the heirs at law, conveyed from time to time their respective interests to the tenant, leaving the widow the sole remaining lessor. This does not affect her right, for as she still remained bound by her lease the tenant still remains bound by his covenant to pay rent, modified or qualified only by her right to a proportionate part thereof; and for such proportionate part as she was entitled to, her administrator has a good cause of action. The fact that the plaintiff’s co-lessors conveyed their whole interest to the defendant before the commencement of the action made it unnecessary to join them either as plaintiffs or defendants, the plaintiff now being the only party in interest.”
This is a correct statement of the law, and clearly outlines the nature of the action, which is one on a lease, to obtain by one lessor the proportionate part of the rent to which she was entitled. The action is, therefore, to be treated as one to apportion rents as between joint tenants, or as between tenants in common with unequal interests, or as between the owners of the fee and the holder of an estate for life.
The suggestion that the other lessors must be made parties is disposed of by what appears, viz., that the other parties have transferred their interests to the defendant, leaving but two who could have any interest in the property, the plaintiff and the defendant. The further suggestion thqt the plaintiff cannot sue upon the lease because her intestate could not make a lease granting an estate for a term, but could only release her dower interest, is equally without merit, for if it be conceded that a doweress out of possession cannot lease, it has been frequently held that she may release, or for an annual payment agree not to enforce her action for dower. No such action to obtain an assignment of dower was instituted during the existence of the lease, nor would it have been maintainable, for *352by joining in the lease she estopped herself from taking such action. What the exact agreement was between the plaintiffs intestate and the heirs is not- shown, beyond the fact that out of the rents there was remitted to her the sum of sixty-two dollars and fifty cents a month. What this agreement was, however, we do not regard as material, it not being claimed that it ‘inured to the benefit of the defendant. At the time the lease was made and prior to the conveyance by the heirs, the defendant was obliged to pay only the amount of rent reserved in the lease, and the manner of its division among the lessors was a subject of no interest to it; nor is it in any way here involved, because it is conceded that all the rent was paid up to the time that the defendant acquired the title in fee to the property, subject to the dower interest, which, as we have seen, the doweress was not in a position to enforce during the term of the lease, and as correctly said in the opinion from which we have quoted: “ She * * * must look to the rent for the satisfaction of her right to the rents and profits of the land for that period.”
It is claimed, however, that by the conveyances to the defendant, by all those who held the fee, and who are four of the five joint lessors, or lessors in common, such deed jper se and by operation of law revoked or merged the lease. We cannot assent to this view, because whatever may be the right of one or more joint owners or tenants in common to sell, assign or release by agreement, these could not be as against the fifth, in the absence of any such agreement, a merger by operation of law. And not only was there no such agreement, but just the contrary appears, the deeds being “ subject to right of dower.” Conceding then the right of the widow, after the conveyances to the defendant, to maintain an action for her share of the rents reserved by the lease, and her right to have the same apportioned by showing just what her interest was, we are brought to a consideration of the questions of fact upon which we think this appeal must be disposed of.
The court below found that at the time the lease was executed the power of attorney, under authority of which the name of Diadema Sommer was signed to it, had been revoked, and that as to her the lease was inoperative; that it did not appear she ever saw the lease or knew its terms, or that she accepted the payments from the defendant as rent, and hence the proof of ratification by her *353was insufficient; and that, assuming the defendant was estopped from disputing tenancy as between her and the defendant, the lease was canceled and annulled by a parol engagement on the part of defendant to pay for her maintenance for the rest of her life, which promise was performed.
In regard to the first of these findings, that at the time the lease was executed the power of attorney given to Burr had been revoked, we think the court fell into error, because the evidence clearly shows that the revocation was subsequent to the execution of the lease by the attorney, and that in addition to the written power the attorney was orally authorized to execute it.
As to the other finding, that the lease was canceled and annulled by a parol agreement on the part of the defendant to pay for her maintenance for the rest of her life, which promise was performed, there is no evidence to sustain it. It is stoutly denied by all the parties with whom it is claimed that this agreement was made. So far as any agreement with Burr is concerned, the defendant can receive no benefit therefrom because, the evidence being that his power was revoked, he was without authority to make it. But it does appear that the power of attorney subsequently given to Sebastian. Sommer, and never revoked, was in its terms broad enough to authorize him to enter into such an agreement on behalf of his mother; and that he did enter into a parol agreement by which, on.. her behalf, he accepted a certain sum monthly during her life, in lieu of any claim under the lease or for dower, two witnesses positively assert. Besides this testimony, we have the fact that thereafter the defendant continued to pay the amount which the witnesses state was the sum agreed upon for a cancellation of the lease or a substitution of a new agreement therefor in favor of the doweress, and which was the sum that, before the conveyance to the defendant, had been paid to her. It will thus be seen that the crucial question is, was there any revocation of the lease, or any modification of its terms, or substitution of a new agreement therefor ? Or, stated differently, as the lease made no mention of dower and did not specify what proportion of rents Diadema Summer was to receive, and as the defendant afterwards acquired the fee from the heirs, subject to the dower of the widow, was there any agreement by which the amount she was to receive, whether as rent or as dower, *354was fixed and agreed upon ? That there was such an agreement ■between her and the heirs the evidence would seemingly indicate, and that payments of the same amount were continued down to her ■death is conceded. And when we remember that she continued to receive these without objection, and that her attorney in fact, who was her son, and Burr, who was her son-in-law, and those who now appear to support her claim by their testimony, stood by until after her death, we cannot conclude that the trial judge exceeded his province in crediting the witnesses for the defendant and holding that such an agreement was made. In his decision he meets the -contention that such an agreement “ is nugatory, because a promise ■.to pay a less sum is no discharge of an obligation for a greater .sum,” by saying: “ The engagement to support Diadema Sommer for life was quite different from the stipulation to pay her rent for a ■ definite term. And although the promise of maintenance was by parol, still, being performed, it is a good accord and satisfaction.”
As this finding, that an agreement was made for the cancellation of "the lease or a substitution of a new agreement in lieu thereof, is not against the weight of evidence, we do not think we should be justified in interfering with the conclusion reached by the trial judge.
The judgment should, therefore, be affirmed, with costs.
Van Bbunt, P. J., Patterson and Rumsey, JJ., concurred; Ingraham, J., dissented.
Judgment affirmed, with costs.