The plaintiff’s right to recover on the first count depends upon the character of the instrument originally executed by the plaintiff’s husband and extended by her after his death. If it was a lease, the ice houses were the property of the defendant for the term ending December 15, 1902, and the loss caused by their being burned to the ground is the defendant’s loss for the unexpired part of that term a portion of a year. If on the other hand the defendant under the instrument here in question was as matter of contract to have the use of the ice houses as a licensee under the plaintiff, the plaintiff was the owner of them at the time of the fire, and the loss falls on her. Furthermore in that case the plaintiff has not furnished that for which by the terms of the contract she was to be paid, namely, *406the use of her ice houses, and the sum stipulated for is not due. So much is settled by Wells v. Calnan, 107 Mass. 514.
The question presented by this case therefore, is the question of the construction of this instrument originally made by Roberts on January 29, 1898, and extended by the plaintiff, his widow, on January 27, 1902. By it as originally drawn, Roberts “ does let to said Ice Company his ice business and privileges in . . . Lynn, at Flax Pond, with the use and benefit of his ice houses, . . . for the term ending December 15, 1898.” The extension of this instrument here in question was dated January 27,1902 ; the term was extended to December 15, 1902; and it is found by the presiding judge that “ After the agreement of January 27, 1902, was executed, the defendant corporation by its servants and agents took possession of the ice houses and machinery and began to cut ice and filled the ice houses.”
There is nothing in the defendant’s contention that these ice houses are personal property. It is true that they are of such a construction that had they been put up by some one other than the owner under an agreement to that effect, they would have been personalty See Antoni v. Belknap, 102 Mass. 198; Handforth v. Jackson, 150 Mass. 149. But being put on the land by the owner of it in fee they became a part of the realty.
The question whether an agreement as to the use of real estate is a lease of it or is a contract by which the owner enters into an agreement to give to the other party to the contract the use of it as a licensee under him, generally has arisen, in this Commonwealth, in case of contracts as to the use of specified rooms which are part of a building. That is to say, the question in those cases has been whether the other party to the contract was a lodger or a tenant. The question there and in the case now before us is decided by determining whether as matter of construction, the contract gave the other party exclusive possession of the premises against the world including the owner, or gave him a license to occupy under the owner, in which case the rights of the other party rest in contract. See on the one hand Swain v. Mizner, 8 Gray, 182; Young v. Boston, 104 Mass. 95; Porter v. Merrill, 124 Mass. 534; Fiske v. Framingham, *407Manuf. Co. 14 Pick. 491; and on the other hand, White v. Maynard, 111 Mass. 250; Central Mills v. Hart, 124 Mass. 123; Hamblett v. Bennett, 6 Allen, 140.
The character .of the instrument in the case at bar would hardly have been questioned had the thing let been the ice houses in place of “ the use and benefit ” of them. And although the word “ use” is ordinarily employed when the owner contracts to give another person under him a right to occupy as a licensee, yet the words here are not “the use of” but “the use and benefit of ” the ice houses, and the defendant took exclusive possession of them under the lease. The words “ use and benefit ” are words of wide application, and mean the entire beneficial interest in the property in question. See Smith v. Harrington, 4 Allen, 566; Paine v. Forsaith, 86 Maine, 357; Lawe v. Hyde, 39 Wis. 345; Heaston v. Board of Commissioners, 20 Ind. 398, 403. It is conceded in the case at bar, for example, that the plaintiff took a life interest at least in the real estate of her husband under a devise to her of all the residue of his estate “ for her use and benefit during her life,” and it would have to be conceded that the remainder vested in fee in the grandson under a devise to him after her death “ for his use and benefit.” And see Lewis v. Shattuck, 173 Mass. 486. In M’Cullough’s appeal, 4 Yeates, 23, it was held that a devise to a wife of “ the benefits of all my real estate ” was a devise of the real estate. The conclusion was reached on the ground that a devise of “ the benefits ” of real estate was equivalent to a devise of the profits of real estate, and it is settled that such a devise is a devise of the land. Co. Litt. 4 b. Parker v. Plummer, 1 Cro. Eliz. 190. Stile v. Tomson, Dyer, 210.
A majority of the court are of opinion that the instrument in question gave the defendant exclusive possession of the ice houses and of the land under them at least, that it was a lease of this real estate and not a contract for the use of it as a licensee under the plaintiff; and therefore the case comes within Fowler v. Glover, 4 Dane Abr. 383; S. C. nom. Fowler v. Bott, 6 Mass. 63; Bigelow v. Collamore, 5 Cush. 226, 231; Kramer v. Cook, 7 Gray, 550; Leavitt v. Fletcher, 10 Allen, 119, 121; Wells v. Calnan, 107 Mass. 514, 518. Since the defendant had an estate in the land under the ice houses at least, the case does not come within *408Stockwell v. Hunter, 11 Met. 448, and Shawmut National Bank v. Boston, 118 Mass. 125.
The only other contention made by the defendant is that whether this was such a contract or a lease is a question of fact, and so not open for review here. There is nothing in that. The question is the question of the construction of this agreement and that is a question of law.
Judgment for the plaintiff on the first count for $1,525, with interest, less $21.51 found to he due in set-off.