Wonsetler v. Wonsetler ( 1903 )

Opinion by

Smith, J.,

Susanna W onsetler, mother of the parties to this suit, by her will bequeathed the clock here in controversy to the plaintiff, while to the defendant she bequeathed a bureau and other chattels. The plaintiff claims the clock under this bequest. The defendant alleges that his mother, long before her death, sold the clock to him. The plaintiff, besides denying that such sale was made, alleges that the defendant accepted the bureau bequeathed to him, and therefore cannot question his mother’s disposition of the clock. The defendant denies such acceptance.

Thus two questions arise: (1) Whether the mother owned the clock at the time of her death. (2) Whether the defendant accepted the bequest to him. If the mother owned the clock, her will vested title in the plaintiff. If the defendant owned it, the bequest to the plaintiff was a nullity, unless the defendant gave it effect by accepting the bureau, since a beneficiary of a will, who accepts a provision for his benefit, is estopped from disputing the validity of one to his prejudice.

While the mother’s declarations that she had sold the clock to the defendant were admissible as evidence for the defendant, her declarations that she had not sold it present a-different aspect. The former were declarations against her interest, in prejudice of her title, and of her consequent right to dispose of the property. The latter were in support of her title, and of her right of disposition. Had both been made in the course of the same conversation, or with some obvious connection, it would be necessary to consider them together, and determine how far either served to qualify the other. But they were totally distinct and unconnected. Whether the mother’s declarations that she had sold were sufficient to prove the sale, was a question for the jury. But her declarations in denial of a sale were obviously self-serving, since they tended to establish her title as against the defendant. The effect of declarations against interest is not to be impaired by independent declarations in aid of interest, unless the latter be made in presence of the adverse party. Hence the declarations of the mother in support of her title, not made in the defendant’s presence, were inadmissible as evidence against him. The plaintiff, indeed, does not allege title in himself through the mother’s declarations, but in his statement claims only under the bequest. The first specification, therefore, is sustained.

The evidence in relation to the defendant’s acceptance of the bureau bequeathed to him was properly submitted to the jury. In determining the question, both the language and the conduct of the defendant are to be considered. While the bequest vested the title in him, his refusal to accept would leave it part of the testator’s residuary estate. But the refusal must be absolute and unqualified, not merely in word but in deed. However positive the terms of refusal, they may be made ineftective by conduct inconsistent with a refusal, such as acts of dominion over the property. A gift of it to another is unquestionably such an act, since it is only by virtue of the bequest that it can be thus disposed of. The true interpretation of the defendant’s language and conduct in the premises was for the jury. This question, with the form of the verdict, was submitted to them with suitable instructions. The specifications relating to these are therefore overruled.

Judgment reversed and venire de novo awarded.