¶1 We think the appeal should prevail. The
¶2 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 point the statute is peremptory. (Sigler v. Van Riper, 10 Wend. 419 ; 2 R. S. part 3, chap. 5, p. 306, § 27 ; Code 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 respondents. 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 *270 evidence offered, to show waiver of the provisions of the will, should therefore have been received.
¶3 The learned counsel for the respondents 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 did 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 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.
¶4 The judgment should be reversed and a new trial granted, costs to abide event.
¶5 All concur.
¶6 Judgment reversed.