158 Pa. 60 | Pa. | 1893
Opinion by
It is now too well settled to admit of question that, upon the ground of implied benefit, the assent of a donee will be presumed ; and the title will vest eo instanti the gift is made, even
-There is certainly nothing in the record in this case to give notice of any defect in the title of Melker Tarr. The devise to him is absolute on its face. There is no condition nor alternative attached to indicate an intention on the part of the testator to put him to an election. Like innumerable other wills of record, this would naturally give rise to a presumption of acceptance, because apparently beneficial to the devisee, so strong that no one would think of further inquiry. It is not claimed that there was any other record notice.
The possession of the administrators was not necessarily inconsistent with acceptance of the devise by Melker Tarr; for, by the terms of the will, his possession, if he had taken under it, must have followed theirs. But it was the part of common prudence, and therefore the duty (Walsh v. Stille, 2 Parsons, 17) of intending purchasers to inquire of the administrators, who were trustees in custody of the land representing all parties interested, the probable duration of their possession; and that
Melker Tarr was clearly a competent witness. Assuming that he was a “ remaining partj- ” to the “ thing or contract in action,” he not only had no adverse interest but no interest whatever in the event of the action. He would “ neither acquire nor lose a right, nor incur a responsibility which the law recognizes.” Dickson v. McGraw, 151 Pa. 98, which practically overruled Duffield v. Hue, 129 Pa. 94, has since been followed by Gerz v. Weber, 151 Pa. 396, and Smith v. Hay, 152 Pa. 377, and has settled the construction of the act of 1887 in accordance with this view.
Loose declarations of Melker Tarr, made in the absence of the parties interested, claiming ownership of the land now in dispute, were not competent evidence to prejudice their rights. The main issues were whether or not (1) he had accepted or refused the devise ; and (2) if he had refused, had the defendants notice of the fact; and the evidence should have been directed accordingly.
The ex parte declarations of Melker Tarr being incompetent to prejudice the rights of plaintiffs, the testimony of Samuel H. Null was to that extent incompetent. He was an ineompe
Judgment reversed and a venire facias de novo awarded.