In that case the renunciation was by deed, and it was claimed that was insufficient, and that a disclaimer in a court of record was necessary. All of the judges agreed that the disclaimer by deed was good, and the dictum contained in the opinion of Holroyd, J., was apparently approved by the other justices. So far, then, we have dictum against dictum, in the English cases, with the Virginia case holding a writing necessary.

The question was up in Massachusetts in the same year that Doe v. Smyth was decided (i. e., 1826). Stebbins v. Lathrop, 4 Pick. 43. It was there held that nothing short of an express renunciation could be taken notice of by a court of probate. The court said:

"Nothing appears amounting to a renunciation. But, if this were doubtful, the question is not to be settled in the court of probate. The respondent has a right to be heard on this point in a court of law, and he cannot be so heard if the grant of probate should be revoked. The most that appears at present is an intention to renounce, and even this is not very clear. It is possible that the intention was merely to impede the creditors in the collection of their debts. Until the legatees shall actually renounce their legacies, their assent to the provisions of the will, which are apparently beneficial to them, will be presumed. Townson v. Tickell, 3 Barn. & Ald. 31. If they should persist in the intention to renounce the estate, the probate of the will will not restrain them. And then the question will be fairly raised whether this can be done to the prejudice of creditors. This being the light in which we view this point, it will not be necessary to determine whether the acts of the devisees will in law amount to a renunciation. It is sufficient to justify the proceedings of the judge of probate in this particular that these acts, taken together, especially the acts of Miner Stebbins,— are equivocal, and that nothing short of an express renunciation can be taken notice of in a court of probate. And there seems no good reason why the fact should not be verified by the record, when the parties are present, and may renounce if they are so inclined. No doubt a devisee may disclaim by deed the estate devised, as was decided in the case of Townson v. Tickell, 3 Barn. & Ald. 31; and perhaps he may disclaim without being subjected to

the expense and trouble of executing a deed, as Holroyd, J., seemed to think. But it does not follow that a court of probate shall receive evidence of such disclaimer, and most certainly not when the evidence relates to acts of a doubtful bearing. In the case of Proctor v. Atkyns, 1 Mass. 321, it was decided that a court of probate could not determine upon a claim set up by deed, because it was determinable exclusively at the common law. The same reason applies with force to the supposed disclaimer in this case.

In Webster v. Gilman, 1 Story, 499, the following appears:

"It may be even doubtful whether, under our laws, any renunciation or disclaimer not by deed or matter of record would be an extinguishment of the right of the devisee. But at all events it should be evidenced by some solemn act or acknowledgment in writing, or by some open and positive act of renunciation or disclaimer which will prevent all future cavil, and operate, in point of evidence, as a quasi estoppel."

Here, again, the question was not decided.

The question was before the United States circuit court again in Ex parte Fuller, 2 Story, 330, and again it was not passed upon. The court said:

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'As to the other point, there is no doubt that the devisee must consent, otherwise the title does not vest in him. But where the estate is devised absolutely, and without any trust or incumbrances, the law will presume it to be accepted by the devisee, because it is for his benefit; and some solemn, notorious act is required to establish his renunciation or disclaimer of it. Until that is done, stabit presumptio pro veritate. That is sufficiently shown by the case of Townson v. Tickell, 3 Barn. & Ald. 31, cited at the bar, and the still later case of Doe v. Smyth, 6 Barn. & C. 112. Brown v. Wood, 17 Mass. 68, and Ward v. Fuller, 15 Pick. 185, manifestly proceeded upon the same foundation. Now, in the present case, there is no pretense to say that Ross has ever renounced or disclaimed the estate devised to him. The statement of fact is that he has done no act accepting or declining the devise. If so, then the presumption

of law is that he has, by implication, accepted it, since it gives him an unconditional fee."

The case of Ward v. Fuller, 15 Pick. 185, went no further than to hold that a devisee before entry had a sufficient seisin to maintain a writ of right.

In 4 Kent, Comm. p. 533, it is said that—

"An estate vests, under a devise, on the death of the testator, before entry. But a devisee is not bound to accept of a devise to him nolens volens, and he may renounce the gift, by which act the estate will descend to the heir, or pass in some other direction under the will. The disclaimer and renunciation must be by some unequivocal act, and it is left undecided whether a verbal disclaimer will be sufficient. A disclaimer by deed is sufficient; and some judges have held that it may be by a verbal renunciation. Perhaps the case will be governed by circumstances."

See, also, Perry v. Hale, 44 N. H. 364.

From the foregoing, we conclude that an acceptance should be presumed in this case, which presumption may be overthrown by acts inconsistent with acceptance. The only evidence here is the purchase of tax titles, and procuring and recording tax deeds of the premises, and the conveyance, by full warranty deed, within two years after Betsey Casler's death, of the premises devised. The inference is strong that Henry Casler's design in obtaining the deeds was to acquire a better title than that conveyed by the will, either because of some inherent defect in the latter, or from a desire to obtain the fee. There is perhaps room for the suspicion that his mother, Betsey Casler, permitted this, as the plaintiff's counsel contends, or that Henry accomplished it without her knowledge, but in either case it tended to show a desire to obtain a better title than he then had. It does not necessarily follow that he was willing to disclaim a valid life estate for his chances under a tax title which, if invalid, might compel him to share his life estate with his brothers and sisters. Again, the testimony of the witness Beard that

he found the land advertised in the paper, and bid it in, tends to show that the sale was not the result of collusion or fraud, and that Henry Casler obtained the tax title from Beard to protect his mother as well as himself. This testimony should not have been stricken out upon plaintiff's motion. If the son, Henry Casler, never accepted the devise, it is an end of the case upon this record, entitling the defendants to a verdict, inasmuch as the tax deeds are prima facie valid, and conveyed the fee.

But, if Henry Casler accepted the devise, it becomes necessary to inquire whether he can set up his tax deeds against the remainder-men. This is said to depend upon the question whether he owed a duty to them to pay the taxes, or preserve the estate for them, analogous to the duty which his mother owed to him and them. We have found no case upon all fours with this, and we doubt if it can be said that the law imposes any such duty upon the second life tenant, during the tenancy of his predecessor. But we think it does not necessarily turn upon a duty to pay. While he was under no obligation to preserve the estate, if he chose to do so that he might reap the benefit of the devise, he should be content to look to the occupant, whose duty it was to pay them, for reimbursement, or, if not, he could expect no more than contribution from the other remainder-men, to whose benefit, as well as his own, such payment inured. It would be inequitable to permit him to claim title under such circumstances, where he took under the same will that gave them an estate, thereby recognizing their right. Good faith towards the testator should forbid such an attempt to defeat his purpose. Were this claim to be sustained, it would make it easy for two life tenants, by collusion, to defeat the remainder-men, under circumstances like these. It may be said that this could be done by the mere disclaimer, but this is a mistake. See 2 How. Stat. § 5548.

We are cited to Blackwood v. Van Vleit, 30 Mich. 118, and Sands v. Davis, 40 Mich. 14, to sustain the claim that Henry Casler was under no disability as a claimant of the fee under the tax deeds. The former was a case where one who went into possession before the tax levy was held not to be precluded from making and relying upon a purchase of land at tax sale. In Sands v. Davis the question arose between tenants in common. In that case one bought a tax title that was outstanding at the time of the purchase of his interest in the premises, and therefore which he owed no duty, to the State or his cotenants, to pay, and it was held that he might set up such title against his cotenants. Both of these cases recognize the proposition that one asserting a tax title may be under a disability, owing to his relations to others claiming interests in the land. In Blackwood v. Van Vleit it is said:

"It was not claimed in this case, so far as the record shows, that there were contract or other relations between Blackwood and Van Vleit that would preclude the latter from buying the former's land for delinquent taxes."

In Sands v. Davis, CAMPBELL, C. J., uses the following language:

"If Sands had gone into possession by the aid of the other tenants, or in recognition of their rights, he might in that way, perhaps, have incurred some duties towards them. But he went in as a stranger to their claims, under a claim which denied their existence or validity. He became liable to an action of ejectment the moment he assumed possession. We see, therefore, no reason why he could not then or thereafter, as well as he could have done it before, purchase a title which was at that time adverse to the holders of the whole original title. The case of Blackwood v. Van Vleit, 30 Mich. 118, holds, in conformity with these views, that there can be no estoppel against purchasing tax titles, except against one who had a duty to pay the tax or remove the burden."