Burritt v. . Silliman

Johnson, J., delivered the opinion of the court. The supreme court was clearly right in the opinion that Monroe, after his renunciation of the executorship of Mrs. Clapp’s will, was not, by reason of his being named executor in the will, incompetent to be a witness. He was not the party propounding the will for probate; and the possibility that he might revoke Ms renunciation did not constitute such a direct and immediate interest in the event of the *96 controversy, as to disqualify him to be a witness. (Robertson v. McGeoch, 11 Paige, 640; Thompson v. Dixon, 3 Addams, 272.) Monroe was also one of the devisees in trust of the real and personal estate of the testatrix; and upon this ground the decision of the surrogate, rejecting him as a witness was sustained by the supreme court, notwithstanding the instrument of renunciation executed by him. This instrument, signed and acknowledged by Monroe, and executed in the presence of two attesting witnesses, declared his renunciation of all right and claim to act as trustee under the will. The case of Judson v. Gibbons (5 Wend., 224,) does not sustain the decision of the supreme court, though some expressions in the opinion certainly favor that view. In that case Van Vechten, one of the defendants, was named executor and trustee in the will of the person against whose representatives the suit was brought. On the trial, it appeared that Van Vechten had not taken out letters testamentary nor acted as executor. The judge thereupon ruled that he was not a devisee under the will, and could not take as trustee without acting as executor. Upon a review of this ruling it was held to be erroneous, Savage, C. J. saying, that Van Vechten should have disclaimed or released the trust as well as refused the executorship, and that then he could not have been considered a devisee under the will, and referred to a passage in Cruise (1 Cruisc 539). where it is stated that the usual practice is to require a trustee who refuses to accept a trust to release or execute a deed of disclaimer. The point was whether a refusal to be executor operated as a rejection of the trust estate; and the case did not require a determination upon the sufficiency of other modes of rejecting such an estate. It seems clear that the law does not compel a man to accept an estate, either beneficial or in trust, against his will, while it may reasonably presume, in the absence of evidence, that an estate has been accepted, especially where it is beneficial *97 in its character. But when it turns out that the estate has not been accepted, it remains in the original owner, precisely as if the conveyance had not been executed. It has failed to be effectual to convey the estate, and is, by the disagreement of the party, rendered null. What evidence of disagreement the law will require, looking on the one hand to the convenience of the party rejecting the estate, and on the other to the public convenience, which makes it desirable that acts affecting the title to land should take such form as that the evidence of them may be capable of preservation, is matter for after consideration. In Crewe v. Dicken (4 Ves., 97), a trustee, who had executed a deed of release to his co-trustees instead of disclaiming, was held to have thereby accepted the estate; and the chancellor on that ground refused to compel a purchaser to take the conveyance of the other trustees, to whom the release had been executed, unless the trustee who had released would join in the receipt for the purchase money. Lord Eldon afterwards, in Nicloson v. Wordsworth (2 Swanst., 387), thought this case rather an over refinement, and that a release, intended as a disclaimer, might well enough in equity be deemed to operate only as a disclaimer; but his argument shows that a disclaimer was not supposed to have any effect as a conveyance of an estate, it having neither parties to whom the estate should pass, nor words of conveyance. In Townson v. Tickell (3 B. & Ald., 31), the question arose whether a devisee in fee could disclaim by deed; it being contended that a disclaimer in a court of record could alone suffice to defeat the estate. All the judges rejected this doctrine, and held that the dis'claimer by deed was sufficient. This was held, not upon the ground that the deed of disclaimer operated as a conveyance, but that it was a solemn instrument asserting the disagreement of the party. Holroyd, J., says : “ The law presumes that a devisee will assent until the contrary be proved ; when the contrary, however, is proved, it shows that he never did *98 assent to the devise, and consequently that the estate never was m him. I cannot think that it is necessaiy for a party to go through the form of disclaiming in a court of record, nor that he should be at the trouble or expense of executing a deed to show that he did not assent to the devise.” These authorities render it clear that a disclaimer does not operate as a conveyance; and there is, therefore, no necessity that it should be executed with those forms which are necessary to pass an estate in land. The disclaimer in this case .being distinct in its terms and having' been acknowledged, so as to be capable of being read, in evidence without further proof, was in form sufficiently solemn to be effectual for the purpose it was intended to answer. It satisfactorily proved that Monroe refused to accept the devise. He therefore ought to have been examined as a witness. Under these circumstances it does not seem advisable to express an opinion upon the other questions in the cause, depending upon the evidence admitted. The cause should be remitted to the surrogate with judgment of reversal, and with directions that the testimony already taken shall stand, and that further evidence may be introduced by any of the uarties: and the costs should abide the event of the cause. Judgment accordingly. 1 Footnotes [1] One named as executor in a will, is a competent witness to prove its exe cution. It seems, that ho is not rendered incompetent by the revised statutes (3 R. S. 2287, 7th ed.) ; but, at all events, is rendered competent by the Code (Code of Civil Procedure, § 828). Children’s Aid Society v. Loveridge, 70 N. Y. 387, 392. Rugg v. Rugg, 83 Ibid. 592 ; s. c. 21 Hun 383. Reeve v. Crosby, 3 Redf. 74. Levy’s Will, 1 Tuck. 87. And see McDonough v. Loughlin, 20 Barb. 245.