#### *Bryan v. Hyre and Others.

August, 1842,

Lewisburg.

(Absent Cabexl, P. and Brooke, J.)

Ejectment—Parol Disclaimer.*—in ejectment by the ■ heirs, of the devisee of an estate in fee, the defendant introduced evidence tending to shew a parol disclaimer by the devisee, of the land devised to him, and moved the court to instruct the jury, that if they believed, from the facts proved, and there was such parol disclaimer of the land devised, they must find for the defendant. The court refused to give this instruction to the jury, and instructed them that the disclaimer must be by writing.

Freehold Estate—Parol Disclaimer.—The opinion of Hoxroyd, J., in *Townson*v. *Tickell &c.,*3 Barn. & Aid. 31, 5 Eng. Com. Law Rep. 219, that it is not necessary that a party, “should be at the trouble or expense of executing a deed to shew that he did not assent to the devise” of a freehold estate, disapproved. .

Ejectment in the circuit court of Hardy county, by John Doe lessee of Elijah Hyre, Elibu Vandeventer, Solomon Bean, Benjamin H. Bean, Peter J. S. Hyre, and Cornelius \ andeventer and Susanna his wife, heirs at law of Peter Hyre deceased, against William Bryan.

At the trial, the plaintiff introduced as evidence the will of Valentine Power, which had been duly admitted to record, and contained the following clause :

“Providing Peter Hyre pays two hundred pounds unto the fatherless and motherless children of Henry and Magdaline Fink deceased, and likewise maintain his father in law Valentine Power and his wife Mary, with meat, drink, washing, lodging, needful apparel, and every thing that is necessary for to support human life, during his natural life, then for a true reward he shall have my plantation whereon I now live, with the two surveys adjoining the said plantation and the spurs of New Creek mountain. I say, I give and bequeath the said land to the said Peter Hyre, and his heirs and assigns forever.”

*It was agreed between the parties, that the lessors of the plaintiff were the heirs at law both of Peter Hyre and of Susanna his wife; that Valentine Power died leaving eleven children and heirs at law, of whom the said Susanna was one ; and that Amelia Power, one of the said children and heirs at law of Valentine Power, had died intestate and without issue. The lessors of the plaintiff rested their claim to the land devised to Peter Hyre, upon the said will, and on testimony adduced by them to prove that Peter Hyre had complied with the conditions of the will. The defendant moved the court to instruct the jury, that the provision of the will by which Valentine Power devised his land to Peter Hyre, created a precedent condition that Peter Hyre should maintain the testator and his wife Mary, during their lives, with meat, drink, washing, lodging, needful apparel, and every thing necessary to support human life ; and that unless the jury believed it had been proved that Peter Hyre, or some person at his instance and procurement, did maintain the said Valentine Power and his wife during their lives, as above stated, then they ought to find for the plaintiff only one tenth of the lands set forth in the declaration. The court refused to give this instruction, but instructed the jury as follows : that the provision of the will by which Valentine Power devised his land to Peter Hyre, created a precedent condition that Peter Hyre should maintain the testator and his wife Mary, during the life of the said Valentine Power, with meat,- drink, washing, lodging, needful apparel, and every thing necessary to support human life ; and that unless the jury believed *71it had been proved that Peter Hyre, or some person at his instance and procurement, did maintain the said Valentine Power and his wife during the life of said Valentine Power, as above stated ; or, if they believed that there was only a partial compliance, unless they believed that such partia.1 compliance was accepted as a performance of the condition precedent in the lifetime of the testator, then they ought to find for the plaintiff only one tenth of the land set forth in the declaration. To which opinion •of the court the defendant excepted, and his bill of exceptions was signed and sealed.

A second bill of exceptions, after stating that the plaintiff gave in evidence a copy of the will of Valentine Power, set forth that the defendant introduced evidence tending to shew a parol disclaimer by Peter Hyre the devisee, and moved the court to instruct the jury, that if the}' believed, from the facts proved, that there was a parol disclaimer of the land devised to him, they must find for the defendant: which instruction the court refused to give, but instructed them that the disclaimer must be by writing. To which opinion of the court the defendant also excepted.

A verdict being found against the defendant, he moved for a new trial; which motion was overruled, and judgment entered for the plaintiff.

Whereupon Bryan presented a petition to a judg'e of this court for a supersedeas, insisting that whatever might be the true construction of the will in reference to the condition precedent, yet the will could pass no title to Peter Hyre if he disclaimed the devise, whether that disclaimer was by parol or in writing ; that the title to the land under the will never could vest unless the devise were assented to, and though such assent would be presumed in the absence of all proof, yet it could not be presumed in opposition to an express disclaimer, although that disclaimer were by parol. The supersedeas was awarded.

G. N. Johnson for plaintiff in error.

In relation to other modes of conveyance, the assent of two minds is necessary to complete the act. And it is equally necessary in relation to devises. The devisee must assent, to make the devise effectual.. Where the devise purports *to confer a benefit, it is admitted that assent will be presumed until dissent be shewn. But here it is alleged that the devisee has dissented. And the question whether he has dissented or not, is a question of fact, to be determined on the evidence. Then we have to enquire, whether this fact may not, like other facts, be established by parol as well as by written evidence. Parol evidence must be received, unless forbidden by some sound principle of law. Non e such is known to exist. It may perhaps be thought that evidence of this description is of too uncertain a nature. But a declaration of disclaimer may be as clearly made by words as in writing ; and after being made, its effect cannot be destroyed by a declaration of a different nature, whether it has been made by words or in writing. Upon the authorities, there is no difficulty. In Townson v. Tickell &c. 3 Barn. & Ald. 31. 5 Eng. Com. Law Rep. 219. the earlier cases are reviewed, and the court decide the disclaimer there, which was by deed, to be good : but the determination is upon reasoning which is equally applicable to a disclaimer by parol. Holroyd, J., says, he “cannot think that it is necessary 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 shew that he did not assent to the devise.” Chief justice Abbott cites, as a strong authority, the case of Thompson v. Leach, 2 Ventris 198. in which mr. justice Ventris said, aman “cannot have an estate put in him in spite of his teeth.” S. C. 3 Mod. 296. 1 Show. 296. Show. Par. Cas. 150. Holroyd, J., refers to Bonifaut v. Greenfield, 1 Leon. 60. Cro. Eliz. 80. There the devise was to four executors. One of the executors refused to take out letters of probat, and it was objected that the sale was not good ; to which it was answered, that as it was devised unto him for the intent to sell, if he refused to sell, he refused to take the estate, and so it was unnecessary that he should *join in the sale. The court held the sale good, although the devisee had not renounced the estate, either by matter of record or by deed. The cases of Townson v. Tickell &c. and Thompson v. Leach, are cited with approbation, in Skipwith’s ex’or v. Cunningham &c. 8 Leigh 282. by judge Tucker, who says (p. 285.) he presumes “ nothing more would be requisite than simple evidence of the fact of disclaimer.” The case of Bonifaut v. Greenfield, which seems to be to the very point, is sustained by other respectable authority. In Sheppard’s Touchstone, p. 452. it is laid down, that “ if one devise his land to another in fee simple, fee tail, for life or years, and the devisee, after the death of the testator, doth refuse and waive the estate devised to him, in this case and by this means the devise to him is become void. And it seems, a verbal waiver is sufficient in this case.” The counsel for the plaintiff in Crewe v. Dicken, 4 Ves. 98. cited sir Thompson Rumbold’s case as one in which Bonifaut v. Greenfield had been followed. And in Nicloson v. Wordsworth, 2 Swanst. 371. the opinion is expressed, that Crewe v. Dicken proceeded upon a distinction between a disclaimer and a release, which is untenable. Disclaimer is implied from acts inconsistent with claim under the will. There is an implied waiver where the devisee does an act from which it is inferred that he does not accept. 1 Powell on Devises (Jarman’s edi.) 429. 21 Law Library 252. Paramour v. Yardley, Plowd. 543. And where one refuses, it is the same as if he had never been named. Smith v. Wheeler, 2 Ventris 128 Evidence of acts of election by parol is sufficient. And evidence of acts of dissent by parol should be equally sufficient. Surely, in the case at bar, if there had been evidence to shew that Peter Hyre had refused to |)ay the *£200.*that would be evidence from which dissent might be presumed.

G. B. Samuels for defendant in error.

All deeds, whether deriving their effect *72from the common law or *the statute of uses, do, immediately upon their execution by the grantors, divest the estate out of them, and put it in the party to whom the conveyance is made, though in his absence and without his notice, till some disagreement to such estate appears. 4 Cruise 12. tit. 32. ch. 1. § 25. Thompson v. Leach, 2 Salk. 618. Skipwith’s ex’or v. Cunningham &c. 8 Leigh 271. In the case of a devise, the freehold is in the devisee before entry. 2 Tho. Co. Lit. 645. The effect then of the will of Valentine Power was, immediately upon his death, to invest Peter Hyre with the estate devised. This suit being brought to recover that estate, and the recovery being resisted upon the ground that the estate was disclaimed, the question is whether parol evidence shall be received to prove the disclaimer. On this question it is material that the will itself is required to be in writing, and to be recorded. It is required to be written, in order that authentic evidence of the testator’s intention may be had, and it is required to be recorded, that it may be preserved, and afford correct information to creditors and purchasers, and to the commonwealth herself for purposes of revenue. If nothing be done by the devisee, the estate is vested and perfect in him. If, however, a valid disclaimer be made, the estate is divested, and transferred to the heir at law, who, by relation, is regarded as seized from the death of the ancestor. A disclaimer, then, is in its essence and operation a conveyance. Why should it not in form also be a conveyance ? Why shall there be withheld from devisees, the safeguards provided by the statutes regulating other conveyances of land, whether by deed or by will ? If words alone can divest and transfer an estate devised, it will repeal, in practice, the statute of wills. After a will has been executed, conforming in all particulars to the statute, its operation may be divested by parol proof. The law forbids that wills, deeds, and even less formal instruments, shall *be restricted in their operation by parol proof, and yet it is proposed in this case that a will shall be—not explained, not curtailed, but in effect entirely abrogated and destroyed, by parol. In guarding the devisee against the trouble and possible expense of making a written disclaimer, the law could not have fallen into the indiscretion of committing the whole mass of real estate devised, to the recollection and integrity of witnesses. Perhaps 999 out of 1000 devisees accept the devise : it is supposed, however, that the estates of the 999 are to be committed to the precarious issues of trials upon parol proof, lest the one may be put to the trouble of making a written disclaimer. Such a decision as that .asked by the plaintiff in error would'open a wide door to frauds and perjuries. No reason for such a course can be found in the policy of the law,—that jealous policy by which all assurances of land are required to be in writing. And no authority can be produced in its support. There is no case in which a parol disclaimer of a fee simple estate has been adjudged valid in law. The decision in Bonifaut v. Greenfield, that if a devise of land be to four executors to sell, and three of them execute the will, that is sufficient, is not in point. In Town-son v. Tickell &c. there being a deed of disclaimer, the question did not arise. And the dictum in Sheppard’s Touchstone, relied upon on the other side, is wholly unsupported. In the London edition of 1826, by Atherley, the editor has brought together the authorities which sustain him in opposition to the text. He says, “with respect to estates of freehold', verbal waiver or disclaimer would not be sufficient. With respect to an estate of freehold, it was held in Butler and Baker’s case, 3 Co. Rep. 26. that it could only be disclaimed by matter of record. But in a late case (Townson v. Tickell, 3 Barn. & Ald. 31.) it was held that it might be disclaimed by deed in pais.” The authorities, then, which are cited on the other side, *in no wise conflict with others which establish that a parol disclaimer is not valid. Co. Lit. 111 a. 2 b. 3 a. 4 Cruise 436. tit. 32. ch. 26. § 5. 5 Vin. Abr. tit. Contract and Agreement. D. pl. 1. 8 Vin. Abr. tit. Disagreement. 22 Vin. Abr. tit. Waiver. A.

C. Johnson in reply.

All agree that a devisee has a right to accept or reject that which is tendered to him. Where the estate is for his benefit, the law proceeds upon the presumption that he accepts, until he dissents. But when the fact is ascertained that he has not consented, the estate has never been in him. The simple question then is, how this fact is to be ascertained. According to the common law, every fact susceptible of proof may be proved by a single witness deposing to the fact. Wherever the policy of the law requires higher proof, such proof is prescribed by statute. The statute of frauds is framed upon this policy, and so likewise the statute of conveyances. But can any one say that any of these statutes, fairly interpreted, embraces this case? It has not been so contended. It is only insisted that the case falls within the same policy ; a proposition which cannot be maintained, any more than the other. With respect to the cases, there is not one which has ever ascertained that the disclaimer must be in writing. The passage from Sheppard’s Touchstone 285. is referred to in Thomas’s edition of Coke’s reports, note E. to Butler and Baker’s case, and the editor, after citing the modern decisions, concludes by saying, “It appears to be the better opinion that the disclaimer need not be either by matter of record or by deed.”

*

Ejectment—Parol Disclaimer.—In Corbett v. Nutt, 18 Gratt. 647, it is said: “Whether an estate of freehold in land can be effectually disclaimed by parol, so as to divest the title of the devisee, has not been settled by the decisions of this court. In *Bryan v. Hyre,*1 *Rob.*94, it was conceded that the question did not arise. The case cannot be regarded, therefore, as settling the question against the validity of such a disclaimer, though the opinion of Judge Axlen is said by the report, in general terms, to have been concurred in by the other judges who sat in the case. It is not necessary to determine that question in this case."

Butin Suttle v. Richmond, F. & P. R. Co.,76 Va. 286, it was Said, it has been long settled in this state that the disclaimer of the freehold can only be by deed or in a court of record, citing *Bryan*u.. *Byre,*1 *Bob.*101, as conclusive authority upon the sub j ect.

Also in Fisher v. Camp, 26 W. Va. 580, the principal case is cited as authority upon the same proposition as in the latter case. See monographic *note*on “Ejectment" appended to Tapscott v. Cobbs, 11 Gratt. 172.

ALLEN, J.

The point arising upon the first bill of exceptions has not been pressed in the argument here, and as there does not appear to be any thing in it, I shall pass it over, with the remark, that I think the opinion thereby excepted to was strictly correct. *It is not very clearly perceived how the question propounded by the second bill of exceptions could arise under the will of Valentine Power. He devises his land upon a condition precedent. The estate could vest only by shewing a performance. *73To make out their case, it was incumbent on the lessors of the plaintiff to prove a performance by their ancestors of this condition. When this was shewn, his assent to the devise was thereby also proved. The estate, by his own act, vested absolutely in him, and could not be divested except in the mode prescribed by law. The only question (as it seems to me) arising on this branch of the case was, Has the condition been performed ? If it has, the devisee, by performing, has accepted the devise, and the estate has vested. The case of Crewe v. Dicken, 4 Ves. 97. is somewhat analogous. There a conveyance was made to trustees, upon trust to sell, and receive the purchase money. One of the trustees conveyed and released to his cotrustee all his interest in the estate. If the trustee had simply declined to act, and executed an instrument declaring his disclaimer, the estate would have vested in the other trustee. The release was considered as an instrument by a person thinking he had an interest to part with, and as furnishing evidence of his acceptance of the trust. If a party intending to refuse the trust could be held to have assented to the conveyance to himself, by the form of instrument he adopted to manifest his refusal, how much stronger is the case of the devisee or alienee upon a condition precedent, who shews a performance !

Supposing, however, that the question did properly arise, it seems to me there is no error in the instruction of which the defendant can complain. It is laid down in Co. Lift. 111. that “in the case of a devise of lands whereof the devisor is seised in fee, the freehold or interest in law is in the devisee before he doth enter, and in that case nothing (having regard to the interest or ^estate devised) descends to the heir.” The case of Thompson v. Leach, 2 Salk. 618. decided that a surrender immediately divests the estate out of the surrenderor, and vests it iri the surrenderee ; for that although every grant implies a contract, yet a gift implies a benefit, and consent is presumed. But although the estate vests by presumption of law before entry, it is clear that a man cannot be compelled to take it against his own consent: and there must be some mode by which he may renounce and disclaim it. In the earlier cases it was held, with respect to an estate of freehold, that the disclaimer must be by matter of record Butler and Baker’s case, 3 Co. Rep. 26. And the reason assigned is, that a freehold ought not to be easily divested, to the intent a tenant to the praecipe might be the better known. In Townson v. Tickell *&c.*3 Barn. & Ald. 31. the devisee in fee renounced arid disclaimed by a deed, and it was decided that such a renunciation was sufficient. One of the judges states it as his opinion, that such disclaimer need not be either by matter of record or by deed. The case did not require a decision of this question, and the authority cited does not, as it seems to me, warrant the conclusion. The judge cites Bonifaut v. Greenfield, Cro. *Eliz.*80. That was a devise to J. S. and three others, to sell, and these persons were made executors. One refused to meddle with the will, or sell. The other three sold in the lifetime of the fourth ; and the sale was sustained. The court said, the sale by the three was good either by the common law or the statute 21 Hen. 8. ch. 4. ; that when the testator devised the land to four to sell, and made them executors, it was as if, at the first, he had devised that such his executors should sell; and in such case, by the common law, a sale by three, the fourth refusing, was good. In Co. Litt. 236 a. it is said that where lands are devised to the executors to be sold, the devise taketh away the descent, and vesteth the estate in the executors ; and *that when he devises his tenements to be sold by his executors, it is all one as if he had devised his tenements to his executors to be sold. And in the same book, 112 b. 113 a. it is laid down, that where executors have but a naked power of sale, all must join, but where a man devises his lands to his executors to sell, and one dieth, the survivor may sell; in the one case it being a bare trust, in the other a trust coupled with an interest. This distinction has been questioned in modern times, but was the received law when the case in Cro. Lliz. 80. was decided. The devise there was of the land to the four persons named; they were, in another part of the will, named as executors ; and the court adjudged that it was the same as if at the first he devised to his executors. The fact that the devise was to them by name in one clause, and that they were made executors in another, did not change their charter; and the land being devised to them to sell, they took, according to Coke, not a bare trust, but a trust coupled with an interest, in which case, by the common law, those who acted could sell. The decision proceeded upon the peculiar doctrines of the common law respecting the relation of executors to their testator’s estate, and has no application to a case like the one under consideration. The last case in which the question arose is that of Smith v. Smith, 6 Barn. & Cress. 112. in which there was a devise to one for life, who refused to take it, saying, she claimed the estate as heir at law, and would not accept any benefit by the will of the devisor. It was held that this was not such a disclaimer as prevented her from afterwards bringing her ejectment, and relying on her title as devisee. The court decided that this was not a disclaimer of any estate in the land, but only of benefit under the will, accompanied with the assertion of a right to the land by a higher and better title : that this proceeded under a mistake, and did not preclude the party from acting under her improved ^judgment, and taking as devisee. They therefore did not determine whether such disclaimer should be by parol or deed ; for, in whatever form made, it must be a disclaimer of any estate in the land.

No case has been cited which establishes the doctrine that a parol disclaimer can be set up against the devisee claiming a freehold estate; nor have I been able to find the rule so laid down in any of the elementary *74books, except Sheppard’s Touchstone. It is there said (p. 452.) that a verbal waiver is sufficient: but this position is controverted by Atherly the editor, who says that a verbal waiver would not be sufficient in relation to freehold estates. The authority referred to (Plowden 543.) does not sustain the position taken in the text. That was the devise of a term, and involved the doctrine of the election of the legatee to take as executor or legatee. That the disclaim er of a freehold estate must be made in a court of record, is laid down in 4 Cruise tit. 32. ch. 26, and in 8 Vin. Abr. tit. Disagreement. And the only modification of the ancient rule is the permission to disclaim by deed. Upon authority, then, it seems to me that the disclaimer, to defeat the devisee claiming under the devise of a freehold estate, cannot be made by parol.

The policy of our laws would seem to demand in this case an adherence to the common law rule, as modified by the more recent decisions. The records with us are relied on as disclosing the chain of title. The commonwealth (as it was properly remarked in argument) has an interest in' the question, for the purposes of revenue. The law requires wills to be executed with certain solemnities ; and it would present a strange anomaly, if a devise, required to be in writing and executed with such solemnities, could be defeated, and in effect abrogated, by the testimony of a single witness proving some verbal disclaimer. Difficulties, too, would constantly present themselves in the practical ^'application of the rule. Should one disclaimer conclude the party ? That would seem to be the necessary consequence, since upon the disclaimer the estate passes to the heir. If so, testimony of some loose expression, carelessly uttered and imperfectly remembered, forgotten by the devisee as soon as pronounced, might defeat his estate. If more than one disclaimer is required, where is the limit, or when does the privilege of retracting determine ? By requiring the disclaimer to be by deed, at least when set up against the devisee asserting his title under the will, these difficulties are avoided.

I think the judgment should be affirmed.

The other judges concurring, judgment affirmed.