By the 4th subdivision of section 6 of article 1, of title 3, of chapter 6, of part 2 of the revised statutes, (2 R. S. 83,) it is provided that “ things annexed to the freehold or to any building for the purpose of trade or manufactures, and not fixed into the wall of a house, so as to be essential to its support,” shall be deemed assets, and shall go to the executors or administrators as personal estate. By the 7th section, “ things annexed to the freehold, or to any building, shall not go to the executor, but shall descend with the freehold to the heirs or devisees, except such fixtures as are mentioned in the 4th subdivision of the last section.” Whether the pump and pipe, balances and scales and beer pump were annexed to the freehold at all; or if so, whether they were for the' purpose of manufacture, does not sufficiently appear by the transcript to justify this court in interfering with the decree of the surrogate in that respect. They were prima facie personal property, and could only descend to the heir, in consequence of being annexed to the freehold, in such a manner, and under such circumstances, as to come within the seventh section. It was a question of fact, which the surrogate could best decide; as was also the question, whether they belonged to the intestate at the time of his death.
I am not able to perceive that any law has been violated, or any injustice done by the surrogate’s charging the appellants with rent for five months of the unexpired term on the lease. The 6th section of the act referred to, provides that leases for years shall be deemed assets. This was a lease for five years, commencing April 1,1843, at $300 a year, or $25 a month. The first year’s rent became due on the 1st of November, 1843, and has been paid, and the appellants have been allowed the amount by the surrogate. There were nearly six months of the first year unexpired at the death of the intestate. There was no direct testimony as to the value of this unexpired term; but within a *377year previous, (at the date of the lease,) Pettingill had estimated it at the rate of $300 a year, by agreeing to pay that sum for it, which, in the absence of any proof of its real value, I think was properly taken by the surrogate as the true value.
The surrogate disregarded the proceedings by distress to collect the rent, and charged the appellants with the property inventoried, at the value set upon it in the inventory; which was much lower then it was sold for under the distress warrant. The appellant’s counsel contends that the landlord had a right to distrain for this rent, and that therefore the surrogate should have charged the appellants with only what the property was sold for, after deducting expenses; and that even if the right to distrain did not exist, the amount the property brought at the sale was the amount the appellants should have been charged with; as it must have been a public sale, and the amounts bid would be the best criterion of its value. The latter part of this proposition I cannot subscribe to. Every man is presumed to know the law; and it cannot be supposed that purchasers at an unauthorized sale of property, when no title would be acquired, or at most a doubtful one, would be willing to offer as much as if the sale was legal and valid, so as to pass a good title.
The more important question is, whether the proceedings by distress in this case were legal. As a general rule, I am inclined to think, that before the passage of the act to abolish distress for rent, (Sess. Laws of 1846, p. 369, ch. 274,) where a tenant died leaving rent in arrear, the landlord could distrain for rent, after administration granted. It was held in Hughs v. Sebre, (2 A. K. Marsh. 227,) that where a tenant died intestate, the landlord could not distrain before administration. I should think the converse of the rule would hold—that the landlord could distrain after administration. (See also Toller on Ex. 277, Phil. ed. of 1829, § 3. Id. 475.)
But however this may be, I am clear that Hovey, the landlord, who is also the administrator in this case, could not dis-train. He was appointed administrator on the 16th of October, 1843, and immediately accepted the trust, and entered upon the *378discharge of its duties. The rent became due on the 1st of November following, some three weeks after the death of Pettingill, his tenant, and the next day the distress warrant was issued, directed to a constable of Monroe county, commanding him to “ distrain the goods and chattels of John B. Pettingill, tenant,” <fcc. Without criticising the form of the warrant, however, I think he waived his right to this remedy, by accepting the office of administrator. His duty as such was utterly incompatible with the right to distrain, as landlord of the prem. ises. As the representative of the intestate, he was bound to protect the interests of the estate. The law was sufficiently severe in allowing the landlord to issue his process, in the nature of an execution, for the collection of his rent, in the first instance, without impleading his debtor in a court of justice, arid obtaining a judgment for his demand, as other creditors, equally" as deserving, were bound to do. The proceeding was a relic of feudalism, and belongs to the history of barbarous ages; and I trust it is never again to become a part of our jurisprudence. But to allow the landlord to administer on his. deceased tenant’s goods, and then to distrain upon those goods, would be a mockery of justice, too disgusting to be tolerated for a moment. Who would there be to question his right, or to replevy the goods in case of irregularity, or any unlawful or oppressive proceeding on his part ? It follows that the surrogate was right in disregarding the distress warrant, and the proceedings thereon. The respondents were, therefore, entitled to a decree for a pro rata share of the assets in the appellants’ hands to be administered; and I am not prepared to disturb the decree, because costs were given to the respondents.
The respondents complain that the surrogate gave preference to the $300 claim for rent, over other debts in the fourth class. On that subject, the decree states that it appeared, to the satisfaction of the surrogate, that such preference would benefit the estate. If that was so, the 30th section of the act, (2 R. S. 87,) authorized such preference. It will not do for this court, sitting in review, to say it did not appear to the sur*379rogate that such preference would benefit the estate; when he certifies that it did so appear. Upon the whole, I am satisfied to let the decree stand as it is.
Decree affirmed with costs.