
    Samuel P. Reid, v. James Stoney.
    The husband of a minor, daughter of the testator, has no right, under a title derived from an informal partition of the estate, unconfirmed by the Court of Equity, to distrain for rent due the estate.
    Where the testator left his estate to remain undivided, until the death of his wife, and the income, in the meantime, lo be divided between her and her son, and her daughter, share and share alike, the executor alone has the power to distrain, for rent due the estate, during the lifetime of the wife.
    Tried before Mr. Justice Evans, at Gillisonville, Spring Term, 1846.
    This was an action of trespass de bonis asportatis. One Thompson, about the 5th of June, 1843, sold to R,eid, the plaintiff, a large stock of goods valued at $2803.77. After the sale, Thompson continued in possession of the goods as Reid’s agent, and sold a tew of them. On the evening of the 17th June, the defendant came to the store, andas Thompson said, expressed an inclination to shut it up, and take possession of the store and goods—said the store was his. Reid was sent for, and when he came, Stoney told him he had come to shut up the store. Reid asked for two days to remove the goods, which was refused. One Lawrence, who was a clerk in the store, by Stoney’s directions, shut up the door and windows. There was no pretence for saying, as the presiding Judge understood the evidence, that any seizure of the goods had taken place before Reid came. The first act of taking possession, was the closing the windows and door by Lawrence. After this levy, but not according to the directions of the rent law, the goods were appraised and advertised for sale. The appraisement was $1603.69. The amount of sale about $1500. The advertisement was, that so much of the goods would be sold as would pay the rent claimed, $320. The auctioneer said he sold to that amount for casb. He then offered to return the balance of the goods to Reid, but he declined to take them, having already commenced his action. The auctioneer then sold the rest of the goods on a credit, on the same terms which Reid before the levy had advertised to sell them. There was no doubt the defendant took possession of tbe goods for rent due him by Thompson, although the object, at the time, was not clearly expressed; but it was clear from the evidence, that there was a controversy between the parties on that subject, and the object was understood, although it was said by Thompson, that Reid asked two days to be allowed him in order to remove the goods; which might warrant the conclusion, that he supposed that Stoney, as landlord, was taking possession of his house merely, as the lease had expired. The claim for rent accrued in this way. The house in which the goods were, had been the property of Samuel Reid in his life time, by whom it had been leased to Thompson, from year to year, at a rent of $320, payable at the end of the year. No contract for the rent had been made with Stoney. By the will of Samuel Reid, the estate was to be held together during his wife’s lifetime, and after her death to be divided between his children. These were the plaintiff, Samuel Reid and his sister, who afterwards intermarried with Stoney, the defendant. It is not certain when the testator died. The plaintiff was the executor, or one of them. On the 22d December, 1842, Stoney and wife filed a bill for account of the estate. Various proceedings were had, which ended in an agreement to divide the estate into three parts—one to the widow for life, and one to each of the children. A supplemental bill to carry this agreement into effect was filed, and a writ of partition was ordered. The partition was made, and by it, the store, house and lot was assigned to Mrs. Stoney. But on the return of the writ, the chancellor refused to confirm it, until it was ascertained by the report of the commissioner, that the agreement, and the partition made under it, was for the benefit of Mrs. Stoney, she being an infant. A reference was accordingly ordered, but no further proceeding has been had in the cause. This partition was made on the 6th February, 1843. The parties, although the partition had not been confirmed, had severally taken possession of the part allotted to each of them. Reid never disputed the right of Stoney to rent which accrued after this time; and on the day the goods were seized, and before, had expressed his readiness and willingness to pay it; but Stoney demanded the whole year’s rent, from June, 1842, to June, 1843, which was refused by Reid. This was, in fact, the cause which led to the act, of which this action is the result. Something was said by Thompson about an offer made by Reid to pay the rent in Thompson’s assigned paper; but this was understood to mean, that Reid, on some former occasion, had offered to pay up all the rent demanded by Stoney, if he would take Thompson’s assigned paper, and not that part due from February to June, which, according to his Honor’s under-'fanding, he h ad always expressed his readiness and willingness to pay. There was much evidence on the value of the goods, but there is nothing in the grounds of appeal which require that it should be reported. The jury found a verdict for about the full value of the goods, as appraised at the time Reid bought them of Thompson. In some way, Thompson was indebted to Reid 8 or 10,000 dollars, and the goods were received in payment, and I inferred from the evidence, that Thompson had assigned notes and other evidences of debt in further satisfaction of the debt due to Reid.
    The writ was issued on the 19th June, two days after the taking of the goods. The appraisement was on the 13th July, and the sale some days after. The first question was, had Stoney aright to distrain? and this the presiding Judge thought, depended entirely on whether he had a title to the house. On this point the jury were instructed, that the partition not being confirmed, no legal estate vested in him by virtue of the partition, but as Thompson had recognized him as the landlord after the 6th February, and Reid had assented to his title, his Honor thought he might, (as regarded these parties) be considered as the owner from that time, and entitled to distrain for the subsequent rent, but not for the anterior rent.
    2. As landlord, he might enter and distrain for what was due; but if Reid did bona fide offer to pay what was due, Stoney’s levying for a greater sum than was due, made him a trespasser; and the jury were told that if Stoney refused to receive it, there was no necessity for Reid’s producing the money and making a formal tender. And on this branch of the case, the attention of the jury was directed to the enquiry, whether the offer to pay at the time of the levy, was in the assigned paper of Thompson, or in money. If the former, Stoney was not bound to take it, and might proceed to levy what was due. His Honor found on his notes the following proposition as a part of the charge: “If a landlord levies a distress for more than is due, after the tenant has offered to pay ail that is duo, he is a trespasser. The distress is not for what is due, because that he can have without; but the distress is for what is not due, and therefore not justified by the fact that sometlfng is due.”
    Taking all the facts, as he supposed them to exist, his o wn judgment was, that the defendant was not justified in seizing the goods after Reid had offered to pay all that was due to Stoney; and therefore, he did not, as is complained of in the 1st ground in the notice, charge the jury, “that the distress for rent was fully justified under the general issue.” Something is said in some of the grounds, that there was no offer to pay any expenses, which had been incurred by others. There was no proof of any expenses having been incurred before the offer to pay. The defendant went, in person, to seize the goods: he had not actually seized, he had only signified his intention of doing so. The witnesses did not say what was the amount that Reid offered to pay, but the amount was capable of being easily ascertained. Thompson said the amount due Stoney was the rent, from February to June, four months, about 100 or 8107. The jury were instructed, that the plaintiff’s right to recover depended on the rights of the parties, when the action was brought, two days after the distress. The subsequent irregularities in appraising and selling the goods, could not maintain the action, which had been already commenced. What occurred after the suit was commenced, might be considered in estimating the damages. They were advised they might deduct from the value of the goods, the amount actually due for rent, but ho does not know if they did.
    The plaintiff appealed.
    1st. Because his Honor erred in not charging the jury that the distress for rent was fully justified under the general issue.
    2d. Because his Honor charged the jury that the offer by the plaintiff to pay a certain part of the rent, in the words of the witness, Lawrence, to the defendant, after the distress, was sufficient tender of all that was due. Whereas, it is respectfully submitted, that an actual tender of the whole money due, as well as the costs of the distress, by the tenant, Thompson, was necessary to support an action of detinue, and not an action of trespass, such as this was.
    3d. Because his Honor erred in charging the jury, that the defendant was not entitled to the whole rent due on the 1st June, 1843, and that he was a trespasser ab initio, in insisting upon the payment of the whole.
    4th. Because the charge of his Honor, and the verdict of the jury, was otherwise contrary to law and the evidence.
    E. Rhett, for the motion.
    The right to distrain was in the co-tenant Stoney, and he had a right to do so, for all the rent, and to hold the shares of the others, for them as trustee. 1 Wins, on Executors, 451. Reid has no authority or legal estate greater than his sister, or another with whom he is co-tenant. Only that rent, due before, or accruing before the death of the testator, goes to the executor; afterwards it goes to the legatees. Taylor on Land, and Ten., 235 and 23G; 5 Cowan, 345; 1 .Adams on Distress, 59. A co-tenant may distrain alone for the rent of all; Adams on Distress, 206; Collin v. Palmer, 5 Moddwn, 72; Fisher u. W.igg, 3 Salkeld, 206; Lee v. Shepherd, 6 C. L. Rep., 204; Wood v. Nun, 15 C. L. Rep., 346. The assignee of the lessor has also a right to distrain; Taylor on Land, and Ten., 209. A devisee is an assignee in law; 1 N. & M’C., 104. Stoney commenced the distress by avowing it when he entered the store. From that time the goods were in the custody of the law: therefore trespass cannot be alleged; Coke, part 8( 146 and 147; Hilton v. Blain, 2 Bail., 168. Detinue is the proper remedy in this case. No tender was made of the rent; 5 Espernass, 48. The money should have been there, and capable of immediate delivery, or actually, manually offered; Taylor on Land, and Ten., 291 and 292. Tender must be in specie, or by consent, in bank notes of a specie paying bank.
    DeTiieville, contra.
    
    The executors have the legal estate for the purpose of carrying out the provisions of the will. They are the trustees pro tanto. A party cannot distrain who is not entitled to the reversion, or who cannot sue; Gilbert on Rents 2 and 3. There was no consideration to support an agreement between Stoney and Thompson; Thompson leased the house from Reid. There was no privity between Stoney and Thompson; 2 Carrington <& Payne, 12 E. C. L. Rep., 35; Gilbert on Rents, 26. One tenant in common cannot take the goods from the possession of another. Irregularity, even subsequent, makes one a trespasser ah initio, at common law: The 19th clause of Stat. George 2, is not of force in this State; 6 Carpender's Leading Case, Coke, Smith’s Selection, 149.
    By the subsequent Act, the law Judges of the quo animo, in the beginning; Oxley v. Watts, 1 Term Rep., 12. Stoney detained the goods more than five days, which is a trespass, and will refer back.
    E. Rhett, in reply.
    For excessive distress, trespass is not the remedy, but action on the case; Comyn on Land, and Ten., 561; Adams on Distress, 192; Taylor on Land, and Ten., 391.
   Evans J.

delivered the opinion of the Court.

To make an effietual tender, the money, in general, must be produced; but where there is a refusal on the other side to receive it, it is not necessary to go through the idle ceremony of producing and counting it. It is not enough that the party expresses his willingness and readiness to pay. He must shew that he had the money, and the ability to do, what he offered to do. From these principles, it would seem there was, no sufficient tender in this case, and consequently if Stoney had a right to make a distress at all, the tender alleged was insufficient to make him a trespasser, even if no more was due than the rent which had accrued after the 6th February, when the supposed partition was made. The whole proceeding of the defendant, in shutting up the store, and levying on goods, which, according to his own appraisement, was of more than four times the amount of the rent due, was a very high-handed measure. All his subsequent proceedings were irregular, and not such as have any sanction, even w the extraordinary powers given by law, to the landlord, in coercing the payment of his rent. These irregularities were subsequent to the commencement of this suit, and on the trial this seemed to me an important consideration. Some of my brethren are of opinion that was wholly immaterial, and if the reason why an act lawful in itself be, (as I suppose) that the subsequent illegal conduct of the party shows the motive and the object, with which he did that which seemingly was lawful, and that the exercise of the legal right was a mere cover or pretext to do an injury to the plaintiff, then I should think it was not very material, whether such illegal acts preceded or succeeded the bringing of the suit. But as it is not intended to put this case on that ground, I propose to do no more than to allude to it, in order that the silence of this Court may not be understood as a concurrence in the proposition laid down on the circuit. The ground upon which the case is put in this Court, is, that Stoney had no such title to the house and lot, as authorized him to levy a distress for the rent, which accrued either before or after the supposed partition was made.

There was no contract between Thompson and Stoney in relation to the rent. Thompson had entered originally as a tenant of the cider Reid, and after his death he was the tenant of those to whom the land belonged, or of whomsoever the power of leasing and collecting the rents, was devolved by law. If the estate of Reid had been divided by a Court of competent jurisdiction, or by the acts of the parties, so as to vest this house and lot in Stoney and wife, this would have been such an assignment of the estate as would have vested the reversion after the lease expired, as well as a right to all the rents, which should afterwards fall due. But in this case there were no release executed by the others to Stoney and wife, so as to vest the legal estate in them, and the Court of Equity, which alone could make a valid partition during the minority of Mrs. Stoney, had refused to confirm the informal partition which had been made. The effect of this was to leave the matter precisely as it stood before the partition. What was done was ineffectual to transfer the legal estate to Stoney; and without the legal estate he could not distrain for rent clue by one, who did not enter under him, and wfiro was in no way liable to him, unless the estate of the original landlord had been assigned to him. We think, therefore, that Stoney had no right to distrain under any title, which he derived to the premises, from the partition which was attempted to be made. The next question is, whether he had any right, derived from any other title to distrain, as he did, for the rents in this case upon the goods of Reid, the plaintiff. If he had any such right, it must be derived from the will of Samuel Reid. By that, after a bequest of several legacies and annuities, the testator directs as follows, viz: “the rest and remainder of my estate, I wish to remain undivided during the natural life of my wife Eliza M. Reid, and at her death to be equally divided between my son, Samuel Paine Reid, and my daughter, Mary Clara Reid, share and share alike, to them and their heirs forever. And during the life of the said Eliza M. Reid, the income to be divided equally between her, my son Samuel, and my daughter Mary, share and share alike.” Of this will [^appointed his wife executrix, and his son Samuel Reid, and Daniel Heyward, executors; the two first named proved the will, and qualified as executrix and executor. During the life of the wife, the income of the estate was to be divided between her and the two children, and no estate is given expressly to the children during that time. On her death, it was to be divided in fee between the two children. But in the mean time, in whom did the legal estate vest? Did it vest presently in the children, with the right of exclusive enjoyment postponed to the death of the wife? or did the legal estate vest in the heirs at law until the time of partition, in analogy to the case, where executors have the power to sell? or did it vest in those to whom the profits are given during the life of the wife? In the view taken by the Court, it is unnecessary to decide these questions. A will is to be construed liberally, so as to carry into effect the intention of the testator; and the question naturally arises, by whom did he intend that the estate, thus divided, should be managed; in the meantime, who was to lease his houses and lands, to receive the rents, and divide it in pursuance of the will? The answer to this question, it seems to me, is, that the duty belonged to the executors as such, and to the execution of this power, it is not necessary that the legal estate should be in them. It is the execution of a trust vested in them by the testator, and the law invests them with whatsoever is necessary to execute the trust. It follows from the construction of the will, that Stoney, until the time for partition had arrived, had no right either to lease these premises, or to collect by distress or otherwise, the rents which were due by Thompson, and therefore it is unnecessary to say any thing on the question, which was much discussed, as to the right oí one joint-tenant or tenants in common to distrain for the whole, or his part of the rent. But even admitting that, as a co-tenant, he had a right of distress, it would be a most extraordinary doctrine, that he could distrain the goods of his co-tenant for the rent due to them both; for in this case it must be remembered, that Thompson, before the distress, had sold the goods to Reid in payment of a bona fide debt. The defendant put himself on his legal rights, and if this fail him, he must abide by the verdict of the jury, on the subject of damages. This Court does not see any thing in the law, or facts of the case, to authorize its interference, and the motion is dismissed.  