
    Anna K. Gilman et al., Resp’ts, v. Winthrop W. Gilman, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Pleadings—Evidence—What admissible in action to recover POSSESSION OF REAL PROPERTY—WHAT MUST BE PROVED.
    In an action to recover real property the plaintiffs stated in their complaint that on a certain day they were possessed of the two undivided third parts of the mansion house and lot of Nathaniel Gilman, deceased, having the right to use and occupy the same for their respective lives, subject to the right of two certain other persons to also use and occupy the premises with them whenever they should elect to do so, and being so possessed that the defendant, on a certain day thereafter, entered into the premises, and withholds from the plaintiff the possession thereof to their damage $100. They demanded judgment for the possession of the undivided two-thirds of the mansion house and lot, with their damages for the detention. The defendant’s answer was a general denial of the allegations of the complaint. Held, that the pleadings in nowise precluded the defendant from giving in evidence any matter which would defeat the action of the plaintiff, nor did it relieve the plaintiff from the necessity of showing a right to the possession of the premises, as against the defendant at the time of the commencement of the action.
    2. Same—Weight of—Admissibility.
    On the trial of the action defendant offered in evidence a paper duly authenticated, by which the widow of the testator waived the provisions made for her in the last will and testament of her husband,' and that she claimed dower in the real, and her rights in the personal, estate of the deceased, according to law. She also proposed to show that upon her application provision had heen made for her, in lieu of the provision of the will, by a court of competent jurisdiction. The evidence was rejected. It appeared that the defendant and another heir, at the time in question, occupied part of the house in question, leaving the rest unoccupied, and that when plaintiff made the formal demand requiring defendant to move out at once, he offered to leave as soon as he could find another place, expressing a willingness that the plaintiff should move in without delay. Meld, that the evidence in the case, and that offered by defendant, was sufficient to show that the original parties to this action were tenants in common of the premises in question. That the plaintiffs failed to prove that they had been actually ousted by the defendant, or that there had heen a total denial of their right as such co-tenant. That in the absence of such proof they were not entitled to recover. That the evidence offered to show waiver of the provisions of the will ought to have heen received.
    3. Same—Measure oe damages.
    The trial court ruled that the plaintiffs were entitled to recover damages from the time the demand was made down to the then present time. Meld, error; that the plaintiffs were entitled to recover, if at all, damages for the withholding of possession, but not beyond the time of the surrender of the premises.
    Appeal from a judgment of the general term of the supreme court, second judicial department, affirming a judgment for the plaintiff and an order denying a motion for a new trial.
    The action was for the recovery of real property, tried at the Kings county circuit before a justice of the supreme court and a jury. The plaintiffs stated in their complaint that on the 8th day of February, 1865, they were possessed of two undivided third parts of the mansion house and lot of Nathaniel Gilman, deceased, known as 171 Clinton street, in the city of Brooklyn, having the right to use and occupy the same for their respective lives, subject to the right of Theophilus Gilman and Frazer Gilman to also use and occupy the premises with them whenever they should elect to do so, and being so possessed, the defendant, on the 9th of February, 1865, entered into the premises and withholds from the plaintiffs the possession thereof, to their damage $100. They demanded judgment for the possession of the undivided two-thirds of the mansion house and lot, with their damages .for the detention.
    The defendant’s answer was a general denial of the allegations of the complaint The plaintiffs proved that Nathaniel Gilman died in December, 1859, seized of the entire premises and leaving a widow, Joanna Gilman, and four children by her as named in the complaint, and a will and codicil which were admitted to probate in the city of New York, May 24, 1861, and in the state of Maine, in June, 1861. They were put in evidence by the plaintiffs.
    It appeared that the defendant was the eldest son of Nathaniel Gilman by a former wife, and both parties claim under the provisions of the will and codicil; the plaintiffs under section 1 of the codicil, which is in these words: “ To my wife, Joanna, so long as she remains my widow, for her own use and occupation, and none other, I give one-third part of my mansion house and lot in Olinton street, in the city of Brooklyn and state of New York. The remaining two thirds are to be for the use of such of my children by her as may choose to occupy the same. Those who may thus occupy being required to pay the taxes and assessments thereon, and to keep the premises in repair; but so long as none of my children may wish to occupy, my wife is to have the use of said two-thirds as well as of the said one-third of the premises;’ and the defendant claims under the clause by which the testator gave to his children, and among others the defendant, the rest and residue of his property and estate The testator declared that the provisions made in the will and codicil for his wife, Joanna, were intended to be in lieu of dower.
    The defendants offered in evidence (1) a paper dated June 11, 1861, and duly authenticated, by which the widow of the testator waived “the provisions made for her in the last will and testament of her husband,” and declared that she “claims dower in the real and her rights in the personal estate of deceased according to law,” and (2) proposed to show that upon her application provision had been made for her in lieu of the provisions of the will, by the court of probate in the state of Maine, where the testator resided at the time of his death, and where he left real estate and personal property. The offer was rejected as not pertinent to the issue, and to the ruling of the court the defendant’s counsel excepted. It appeared that in 1861 the defendant took possession of three rooms in the house in question, another heir of Nathaniel Gilman already occupying a fourth room, leaving the rest of the house unoccupied. In the month of February, 1865, the plaintiffs made a formal demand of the defendant for the possession of the whole house, and required him to move out at once. He offered to leave as soon as he could find another place, but expressed a willingness that they should move in without delay. The upper part of the house was vacant, and all he claimed was a right to occupy a portion of the house then in use. No testimony was given tending to show a demand for less than the whole, and it was in evidence on the part of the defendant that he “at no time denied the plaintiffs’ right to any part of the premises.” In the following April he did in fact move out, and has since had nothing to- do with them. At the close of the testimony the defendant’s counsel asked to go to the jury as to the demand made by the plaintiffs,.claiming that if it was for the whole of the premises it was not sufficient, but the court refused. He also asked the court to charge the jury, as a matter of law, that plaintiffs could not recover more than one hundred dollars; that being the amount claimed in the complaint.
    The court ruled that plaintiffs were entitled to recover damages from the time this demand was made down to the then present time.
    The court thereupon charged the jury as follows: “The plaintiffs are entitled to your verdict, and to recover possession of two-thirds of the house and lot, the premises described in the complaint, and the only question for you to consider is the amount of damages,” and as to those damages, directed them to determine from the evidence what the fair rental value of the premises was and having ascertained it, give the plaintiffs a verdict for two-thirds of that amount from December, 1864, the time the demand was made to the then present time.” To each ruling and direction the defendant’s counsel excepted. The jury rendered a verdict for the plaintiffs in accordance with the charge of the court, and assessed the damages at $1,700. The' trial court denied a new trial and an appeal was taken to the general term from the order then made and from the judgment rendered on the verdict. Both were affirmed, and the defendant brings this appeal.
    
      Henry E. Knox, for app’lt; Raphael J. Moses, for resp’ts.
    
      
       Reversing 1 N. Y. State Rep., 567.
    
   Danforth, J.

We think the appeal should prevail. The evidence in the case and that offered by the defendant was sufficient to show that the original parties to this action were tenants in common of the premises in question. The plaintiffs failed to prove that they had been actually ousted by the defendant, or that there had been either by word or act on his part a total denial of their right as such co-tenants. In the absence of such proof they were not entitled to recover. Upon that branch the statute is peremptory. Sigler v. Van Riper, 10 Wend., 419; 2 R. S., part 3, chap. 5, page 306, § 27; Code of Civ. Pro., § 1515.

It would no doubt have been sufficient if upon demand made by the plaintiffs, the defendant had denied their title, saying he claimed the whole, and so claiming had continued in possession. But in this case he did neither. The plaintiffs’ right was conceded. And unless excluded by the terms of the will, the defendant also, as one of the heirs of Nathaniel Gilman, was entitled to some share under its residuary clause. He was so excluded if the provisions of the will in favor of the widow, and above cited, were effective; otherwise not. She had her election, and the evidence offered would if received, have tended to show that she not only executed a formal relinquishment of the provisions made by the will, and elected to take her dower, but that provision was made for her by.a court of competent jurisdiction in accordance with her demand.

No answer to that evidence appears from the record, nor is any suggested by the learned counsel for the respondent. The portion she refused would, under such circumstances, become part of the residue and vest, pursuant to the will of the testator, in his heirs, among whom is the defendant, subject, indeed, to the widow’s right of dower, if any there were. But, if any, it was a mere right of action, of itself giving no estate. The evidence offered to show waiver of the provisions of the will should, therefore, have been received.

The learned counsel for the respondent refers to the pleadings as sustaining, by the defendant’s denial, the plaintiffs’ claim. No such force can be given to it. If a cause of action existed, it must have accrued before suit brought, and the substance of the answer is, as that of the general issue under the former practice was, that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiffs, as alleged in the complaint. It in no wise, therefore, precluded the defendant from giving in evidence any matter which would defeat the action of the plaintiffs, nor does it relieve the plaintiffs from the necessity of showing a right to the possession of the premises as against the defendant at the time of the commencement of the action. An exception was also taken to the ruling of the trial judge upon the question of damages. The plaintiff was entitled to recover, if at all, damages for the withholding of possession, but not beyond the time of the surrender of the premises.

The judgment should be reversed and a new trial granted, costs to abide event.

All concur.  