The surrogate was clearly correct in disallowing the claim of $800 for board and horse keeping. The proof showed that upon the marriage of Milton P. Wilcox with Margaret Cole he lived at his wife’s father’s and made it his home there, by invitation and common consent, without any claim, suggestion or expectation by any one that he was to pay for the board of himself and wife. Ho agreement for board is proved; and without an express agreement to pay for board no legal claim arose, and none should be recognized or allowed, under such circumstances. The case of Robinson v. Cushman, (2 Denio, 153,) fully asserts this principle, and it is eminently sound and just. The law will not imply a promise to pay for board or services, as among members of the same family and persons more or less intimately or remotely related, where they are living together as one household, and nothing else appears. (Williams v. Hutchinson, 5 Barb. 124. 17 Verm. R. 556. 16 id. 150. 3 Cowen, 612. Dye v. Kerr, 15 Barb. 444.)
The surrogate also correctly held that the claim of the heirs and devisees of I. B. Cole, for rent of the farm occupied by Wilcox,'was not recoverable, so far as related to the one third of the amount claimed by the appellant; and for the same reason he should have disallowed such claim so far as related to the residue of such claim for rent. Ho portion of such item for rent should have been allowed. Wilcox occupied the farm in the right of his wife, who was a tenant in. common with Cynthia and Henry Cole. His occupation was her occupation,,and as no action would lie against her for such occupation, it would not lie against him, without proof of some agreement to pay rent. The surrogate held the law to be—and in this he was clearly right—that one tenant in common, although he have the exclusive possession *330of the common property, is not liable'to account to the other tenants in common either for rent or for a share of the profits, unless there he an express agreement that he shall do so. (Henderson v. Eason, 9 Eng. L. and Eq. 339. Woolever v. Knapp, 18 Barb. 265. Dresser v. Dresser, 40 id. 300.)
[Monroe General Term, March 4, 1867.It appears that on the decease of the father of Mrs. Wilcox the remainder of the family, consisting of her mother and one brother, all lived together on the farm, and the intestate Wilcox carried on the farm. This was at the request and by the advice of Cole, the father of the appellant, in his lifetime, and apparently by common consent and for the common benefit, so far as they all lived upon the farm and from the farm. Wilcox did not become liable to pay rent because he was there employed in preserving the common property and cultivating the farm in the right of his wife, because the head of the household, for the common benefit of all the parties interested in the .property upon the decease of the appellant’s father. This whole claim for rent should have been disallowed, and as the respondents make this claim in their answer to the petition of appeal under rule 44, the decree can be so modified, and with this modification it should be affirmed, with costs to be paid by the appellant.
Welles E. Darwin Smith and Johnson, Justices.]