der of the back door key to the plaintiff, no pretense, then, of any surrender by virwas a surrender of the lease accepted by the landlord. Certain facts are averred, which, standing by themselves, would be evidence from which a jury might infer a surrender, but yet entirely consistent with a distinct refusal. Taking possession, repairing, advertising the house to rent, are all acts in the interest and for the benefit of the tenant, and do not discharge him from his covenant to pay the rent." In Biggs v. Stueler, 93 Md. and plaintiff's entry on the premises for the purpose of repairing the plumbing, damaged and rendered unsafe by reason of the freezing due to the negligence of the defendant in abandoning the premises in winter, with out proper precautions, and the subsequent general repair of the house by the plaintiff, who did some of the same during the month for which rent is claimed, constitute such a surrender on the part of the defendant, and acceptance on the part of the plaintiff, as to terminate the letting, and relieve the defendant of liability to pay any further rent. Defendant's counsel in his brief and argument quite ignores the fact that the plaintiff, upon being notified on January 10th by defendant's wife of their intention to leave during the next week, informed her that the notice was insufficient, and that he would be entitled to the rent for the month ending February 15th; that the next day plaintiff wrote to defendant to the same effect, and warned him as to precautions to be taken with regard to the plumbing in case he moved as intended; and further ignores the fact that the plaintiff again notified the defendant at a personal interview that he would hold him for a month's rent up to February 15th, if he moved as intended, without legal notice. These latter facts clearly distinguish the case at bar from the case of White v. Berry, 24 R. I. 74, 52 Atl. 682, which is the only Rhode Island case cited by the defendant, and upon which he relies, because in that case the defendant gave nearly three months' notice of his intention to terminate the tenancy, the plaintiff never made any objection, made no claim for additional rent, until long afterwards, within a month advertised the house for rent and showed it to tenants, accepted the keys, and entered and put up signs "To Let" in the house. It was held, upon petition for a new trial, that there was ample evidence of a surrender by the tenant and acceptance thereof by the plaintiff to support the verdict of the jury in favor of the defendant. In MacKellar v. Sigler, 47 How. Prac. (N. Y.) 20, also cited by defendant, the defendant was held liable for one month's rent payable in advance for a month after he abandoned the tenement; but the court held that, by reason of acts subsequently done by the landlord, by acceptance and holding of keys, by entry, making repairs, and subsequent letting, there was sufficient evidence that the landlord had accepted the surrender after the termination of the month for which rent was allowed to be recovered. In Nelson v. Thompson, 23 Minn. 508, 512, also cited by the defendant, it was held (speaking of the landlord's agent), that "he received the key only conditionally, and with the express declaration that he should still continue to hold the lessees for the rent, up tue of any agreement, as this necessarily implies an intentional and express assent on the part of the lessor to the termination of the lease. Neither can any surrender by operation of law be predicated upon these facts." So far as this case goes, therefore, it is in favor of the plaintiff in the case at bar, and against the defendant's contention. The relation of landlord and tenant cannot be determined, except by the expiration of the lease, where there is a lease for a fixed term, or, in case of a tenancy from year to year or from month to month, by notice given in accordance with the statutory requirements, except by the surrender of the premises by the tenant and the acceptance of such surrender by the landlord. Whether or not there has been such acceptance or surrender is to be determined by the intention of the parties. This intention is to be determined by their acts and words. Coe v. Cassidy, 72 N. Y. 133; Talbot v. Whipple, 14 Allen (Mass.) 177. Sending a key to the owner, without more, is not such a surrender and acceptance. Newton v. Speare Laundering Co., 19 R. I. 546, 37 Atl. 11; Durfee v. United Stores, 24 R. I. 254, 52 Atl. 1087; Nelson v. Thompson, 23 Minn. 508, and cases infra. [3] In case of abandonment of leased premises by a tenant, it is the landlord's right to enter upon the premises and do such work as is necessary for the protection of the property, and entrance for such purpose and the performance of such work will not convert a mere abandonment by the tenant into a surrender and an acceptance thereof. Smucker v. Grinberg, 27 Pa. Super. Ct. 531; Breuckmann v. Twibill, 89 Pa. 58; West Side Auction House Co. v. Conn. Mut. Ins. Co., 186 III. 156, 57 N. E. 839; Gaines v. McAdam, 79 Ill. App. 201; and Biggs v. Stueler, 93 Md. 100, 48 Atl. 727. It is also held that the resumption of possession by the landlord and the making of general repairs before the expiration of the term is not conclusive evidence of an acceptance of a surrender, but is entirely consistent with a distinct refusal. In Breuckmann v. Twibill, 89 Pa. 58, supra, the facts in the case showed that, after abandonment by the tenant and during the time for which rent was claimed, "the plaintiff immediately took possession of said premises and proceeded to repair the house, by building a new bathroom, a new porch, putting in a new range, and making general repairs, such as could not have been done while the house was occupied by a tenant. Deponent saw the house repeatedly during the time for which rent is claimed in the suit, and plaintiff was in possession all that time; and said repairs were going on for the greater part of that time." Upon this state of facts, the court in its opinion says: "The plaintiff in error in his affidavit of defense 100, 48 Atl. 727, supra, where it was shown Under Pub. St. 1882, c. 164, § 7, re-enacted that, after abandonment by the defendant, the plaintiff took the keys under protest, refusing to accept surrender, notifying the de fendant that he would be forced to rent the property "for your account and risk, charging you with any loss on same," etc., and then took possession, and in order to rent the property was compelled to make certain repairs, the court held that such taking possession and making repairs and subsequent rental to other parties are not in themselves sufficient to show an acceptance by the landlord of the surrender of the term, so as to release the tenant from all liability for rent. [4] In the case at bar, it is possible that the taking of the key and the making of repairs prior to the 15th of February are facts from which, if they stood by themselves, the court below might have inferred an acceptance of defendant's surrender. But these facts are to be considered in connection with the express refusal contained in the plaintiff's letter of January 10th, the undisputed demand of the plaintiff that the rent for that month should be paid, while willing to agree that it might be paid in three installments, in order to make it easier for the defendant, the undisputed fact that the back door key was left with the plaintiff for the purpose of enabling him to have work performed for the preservation of his property, to remedy the neglect of the defendant or some person acting under his authority, and the entire absence of objection on the part of the defendant to the painting and papering performed by the plaintiff. It is also to be noted that there is no evidence that any of the work done prior to February 15th was of such a character as to have been inconsistent with the defendant's continued possession and use of the property, up to February 15th, if he had seen fit to continue his occupation, as he had a right to do, being notified before he moved that he would be held for the rent up to that time. So far as the transcript shows, only such ordinary repairs were made prior to February 15th as are commonly made while the tenant remains in possession. When so considered, it is clear that the deduction of fact drawn by the presiding justice of the superior court not only was warranted, but was logically unavoidable. ADOPTION (§ 21*) - INHERITANCE BY CHILD. kin. [Ed. Note. For other cases, see Adoption, Cent. Dig. §§ 35-40; Dec. Dig. § 21.*] Case certified from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Bill by Rhode Island Hospital Trust Company against Sarah L. Humphrey and others. On certificate from the superior court. Decree directed. See, also, 78 Atl. 625. James Tillmghast, for complainant. Barney & Lee, fo. respondent Sarah L. Humphrey. DUBOIS, C. J This is a bill in equity, involving the construction of the will of Alexander Hawkins, late of Providence, deceased, certified to this court from the su perior court as being ready for hearing for final decree, under the provisions of Gen. Laws 1909, с. 289, § 35. It appears: That said Alexander Hawkins died on the 11th day of December, 1894, leaving a last will, which on the 8th day of January, 1895, was duly admitted to final probate, and now remains of record, in the municipal court of said city of Providence. That in and by his said will the said Alexander Hawkins made the following bequest: "To said Rhode Island Hospital Trust Company twenty-five six per cent. bonds of the state of North Carolina payable in 1919, together of the par value of twenty-five thousand dollars, in trust, to pay the net income thereof, as often at least as once in every six months, to my sister Ann, wife of George W. Humphrey, of said Providence, for her own sole and separate use, and without the power on her part to alienate or anticipate the same during her life; and upon her death to pay out, divide and distribute the principal of this trust fund to and among my own then surviving next of kin according to the statutes of distribution of intestate estates then in force in this state, and in the proportions and shares that they would then be entitled to the same from me according to the same statutes had I then deceased in The defendant's exception is overruled, and testate possessed of the same." That said Ann Humphrey-generally known as Annie | case, therefore, in construing her father's S. Humphrey-died at Warwick, in this settlement, must be regarded in the light of state, on the 20th day of June, 1909, a child born in lawful wedlock, unless the testate, without leaving any issue of her body, but leaving surviving her the respondent Sarah L. Humphrey, who, by virtue of a decree of the municipal court of the city of Providence, exercising probate jurisdiction, entered on the 12th day of April, 1895, was adopted by the said Annie S. Humphrey and her husband, since deceased, as their daughter. Said Sarah L. Humphrey claims "that as such adopted daughter she is one of the next of kin of the said Alexander Hawkins, and as such is entitled to a distributive share in the trust fund in said bill referred to, to wit, to a one-sixth share thereof." It is to be noted that the respondent Sarah L. Humphrey makes no claim of kinshop by consanguinity to the testator, Alexander Hawkins, but bases her contention solely upon her status as the daughter by adoption of the said Annie S. Humphrey and her husband. This presents the following question for our determination: Did Annie S. Humphrey, the sister of the testator, artificially increase the number of his next of kin, after his decease and the probate of his will, by the adoption of a child? The statute, under whose provisions the adoption was effected, is Pub. Stats. 1882, c. 164 (substantially re-enacted in Gen. Laws 1909, с. 244), which, after prescribing the procedure to be followed by petitioners thereunder to obtain a decree of adoption, and the conditions under which the decree may be made, defines the effect of such decree upon the property rights of the adopted child, as follows: "Sec. 7. A child so adopted shall be deemed, for the purposes of inherit ance by such child and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation." The foregoing statute was first introduced into this state as Pub. Laws, c. 627, passed March 26, 1866, and its provisions are almost identical with those contained in Gen. Stat. Mass. 1860, c. 110, §§ 1 to 10, inclusive, and section 13. The last-named statute was construed by the Supreme Court of Massachusetts in the case of Sewall v. Roberts, 115 Mass. 262, 276: "This language is very broad and comprehensive, and it was manifestly the intention of the Legislature to provide that, with the exceptions named, the adopted child should, in the words of the sixth section, 'to all intents and purposes be the child of property disposed of by the settlement falls within one of the exceptions. It is true that, if she takes under the settlement, the property does not come to her by inheritance; but it comes to her as one of the legal consequences and incidents of the natural relation of parents and children. Does it fall within either exception of the statute? It cannot be claimed that it falls within the last exception as property from the kindred of the parents by right of representation." The court found that it was not property limited to the heirs of the body or bodies of the parents by adoption, and that the phrase "heir of the body" is a well-established technical term, and that under the statutes of Massachusetts technical words and phrases which have acquired a peculiar and appropriate meaning in the law shall be construed and understood according to such peculiar and appropriate meaning, unless it is inconsistent with the manifest intent of the Legislature or repugnant to the context, citing Gen. Stats. c. 3, § 7. The court also found that the Legislature intended to use the phrase "heirs of the body or bodies" in its primary technical sense, and that the terms of the settlement in dispute do not limit the estate expressly to the heirs of the body of the settlor. In the case of Hartwell v. Tefft, 19 R. I. 644, 35 Atl. 882, 34 L. R. A. 500, this court said in reference to the predecessor of the statute now under consideration: "In Maine, under a statute similar to ours, it was held in Warren v. Prescott, 84 Me. 483 [24 Atl. 948, 17 L. R. A. 435, 30 Am. St. Rep. 370], that the exception relates only to an inheritance as an heir of the body. The reasoning is that, where an estate is limited to one and the heirs of his body, it must go to those to whom it is expressly limited, and that an adopted child, although he is to be regarded as a child, an heir, and a lineal descendant of his adopting parents, does not answer the description of an heir of the body, and so he cannot take the property out of the line to which it was limited. An adopted child is put, by the statute, into the status of a child, issue, or lineal descendent, but not that of an heir of the body. Hence as to a legacy, when a legatee dies before the testator, leaving an adopted child, such child answers the de scription of a lineal descendant, who may take the legacy under a statute which prevents legacies from lapsing when the legatee leaves lineal descendants. The reasoning seems to be conclusive. It is the same result that was reached in Sewall v. Roberts, 115 Mass. 262, although the reasoning in the latter case is not so fully and clearly set forth as in the former. The court holds that the words 'heirs of the body' are used in words 'children' and 'issue' are not equivalent terms. See, also, McGunnigle v. McKee, 77 Pa. 81 [18 Am. Rep. 428]." In the case at bar the property disposed of by the will clearly falls within one of the exceptions. It is property from the collateral kindred (brother) of the mother by adoption of the respondent Sarah L. Humphrey. If she takes the property at all, it comes to her by inheritance, and she takes it by right of representation. She cannot prove the kin ship that she claims to the testator, except as the daughter of her adoptive mother. The case is very different than it would have been if the property had come to the possession of her mother by adoption during life. There would have been no question of her right to inherit in such a case; but her said mother only had the income of the trust fund for life, the title to the same remaining in the trustee, and so it never could come into her possession. Even if the respondent aforesaid had been in fact the child of the body of her adoptive mother, and was now claiming an interest in the corpus of the trust fund, she would still be claiming property from the collateral kindred of such parent by right of representation, which under such supposed circumstances she would have a perfect right to do. As it is she may be said to be next of kin to her adopted parents for certain purposes, but the law does not at present extend the kinship to other kin of such parents, who cannot be made parties to the adoption and are not to be bound thereby. In other words, the status of an adopted child depends upon the statute of adoption. If the Legislature had seen fit to pass the statute without exceptions, there would be no difference between children born to or adopted by their parents; but it is to be presumed that the Legislature intentionally inserted the exceptions alluded to, and they are entitled to be considered as in full force, and they mark the difference between children born in wedlock and adopted children. The respondent in question comes within the disabilities of the latter class, which will prevent her from inheriting any portion of the fund in question. In the circumstances of the case, we are of the opinion that neither party should recover costs. A form of decree may be submitted in accordance with the foregoing for approval. BLODGETT, J. This is an appeal from a decree of the superior court establishing a mechanic's lien for materials used in the construction, erection, and reparation of three houses in the city of Providence, situated upon land of the respondents in the city of Providence, and described respectively as (a) the southerly half of lot 11 on the "Stephen Randall plat, Johnston, R. I., made June, 1885, by C. M. Hunt," and recorded in the office of the recorder of deeds in said city of Providence on Plat Card No. 765; (b) the northerly half of the same lot; and (c) the whole of lot 15 on the same plat. The lien in question is claimed for materials furnished to the contractors, Giuseppe D'Abbracchio and Francisco Benedetto, within the 60 days prior to August 7, 1909; the total amount of such materials so furnished exceeding $1,600, as testified by one of the plaintiffs, and upon which $932.34 had been paid prior to the institution of this proceeding, $532.34 of which amount was so paid within said period of 60 days and on June 14, 1909. In the single notice of claim of lien served upon the respondents and filed in the office of the recorder of deeds in Providence, the petitioners' claim is thus stated as being for "certain materials, namely, lumber, lime, сеment, nails, and other building materials, of the value of, to wit, six hundred and twentyfive ($625.00) dollars, to be used in the construction, erection, and reparation of a certain building upon certain land hereinafter described," and the land is thus described: "Those certain lots of land, with buildings and other improvements thereon, situate in the said city of Providence, and are laid out and designated as lots numbered 11 (eleven), 12 (twelve), and 15 (fifteen) on the Stephen Randall plat, Johnston, R. I., made June, 1885, by C. M. Hunt, recorded in the office of the recorder of deeds in said city of Providence, on Plat Card 765." In the single that in a case like the present a separate account of the materials furnished for each building is required." statement of their account filed in the office of said recorder of deeds as the commencement of legal process their claim is thus stated: "To the extent of one-third of In the present case it appears that more account set forth in detail and annexed here- than $900 has been paid on a total indebtedto and made a part hereof, in that certain ness of about $1,600. It is evident that these building and the land on which it is located, payments, upon the theory of an exact apsaid land being bounded and described as fol-propriation of the same amount of materials lows: (a) The southerly half of that certain to each house, are sufficient to discharge the lot of land situated in the city of Provi- lien on any one of them, and are almost dence, in the state of Rhode Island, laid out enough to discharge the lien on any two of and delineated as lot number 11 on the 'Stephen Randall plat, Johnston, R. I., made June, 1885, by C. M. Hunt,' and recorded in the office of the recorder of deeds in said city of Providence on Plat Card 765." And said claim is repeated therein "to the extent of one-third of account set forth in detail and annexed hereto and made a part hereof" as to each of the other lots first above specified. them. But the plaintiff has failed to prove even this exact appropriation, but rather assumes such to be the case. He could by proper bookkeeping have shown exactly the materials which entered into each house, and if he neglects to do so it is less of a hardship to require him to do this than it is to require the innocent owner of the land to pay him, it may be a second time, for an indebtedness to the contractor which he may already once have paid. The case is governed by the decision of this court in McElroy v. Keily, supra, and the decree of the superior court must be reversed. Case remanded to the superior court, with direction to deny and dismiss the petition. An examination of the transcript of the testimony shows that the petitioners have proceeded upon the theory that, inasmuch as these three houses on separate tracts of land were undergoing construction, erection, and repair at or about the same time, the petitioners had a general lien on all of them for a general balance due, on the theory that probably approximately one-third of the materials had been used in each house, and that consequently they could include all three claims for lien in one proceeding. A similar contention was unsuccessfully made in Mc- 1. CONTRACTS (§ 349*)-ACTIONS-EVIDENCE. * * * Elroy v. Keily, 27 R. I. 64, 60 Atl. 679, and NOCK v. LLOYD. (32 R. I. 313) (Supreme Court of Rhode Island. May 24, 1911.) In an action for overhauling and repairing a boat, a bill for repairs made by a third person, because of defects in the work done by plaintiff, is inadmissible, in the absence of evidence that the defects complained of made it necessary to employ the third person to make repairs at the expense disclosed by the bill therefor. [Ed. Note.-For other cases, see Contracts, Dec. Dig. § 349.*] 2. EVIDENCE (§ 318*)-HEARSAY EVIDENCE. A bill rendered to one party to a suit by a third person does not prove itself, or prove that the work therein referred to was done or necessary, or that the amount of material charged for was used on the work, or that the prices charged therefor were reasonable. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. § 318.*] 3. EVIDENCE (§ 486*) - OPINION EVIDENCE EXPERT WITNESSES. One who is the sailing master of a boat, but who is not an expert in the matter of plumbing or cost of repairs thereto, is not competent to testify as to the cost of repairs. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2271; Dec. Dig. § 486.*] 4. TRIAL (§ 188*)-INSTRUCTIONS. Where, in an action for repairing a boat of defendant, the evidence showed that defendant took the boat away without waiting to signify his approval or disapproval of the work done and materials furnished, and that the sailing master was on the boat during the time of the repairs, and had an opportunity to make a favorable or unfavorable report before the boat was taken away, etc., a charge that, if the work was by conduct accepted, defendant could not thereafter complain, and that the jury must de |