By its decision, the court is holding that no conclusion is possible on this record other than that the debtor accepted the legacy. I cannot agree; in my view, there was sufficient evidentiary basis for the determination made by the Surrogate's Court and unanimously affirmed by the Appellate Division.
As presented in the court's opinion, the case poses one simple question: did the legacy vest in the debtor on or by February 4, 1946, the date on which he filed a renunciation of the bequest to him? *Page 406
The underlying law is clear. Since a legacy or devise is deemed an offer to the named beneficiary — which he may accept or refuse — and not a transfer, title to the gift passes and vests only upon the beneficiary's acceptance. (See Matter of Waring,293 N.Y. 186, 189; Albany Hosp. v. Albany Guardian Soc., 214 N.Y. 435,441; Burritt v. Silliman, 13 N.Y. 93, 96; Matter ofWolfe, 179 N.Y. 599, affg. 89 App. Div. 349; Matter ofMahlstedt, 140 Misc. 245, 253; Brown v. Routzahn,63 F.2d 914, 917, certiorari denied 290 U.S. 641; People v. Flanagin,331 Ill. 203; Schoonover v. Osborne, 193 Iowa 474; Bradford v. Calhoun, 120 Tenn. 53; Matter of Meiburg, 1 F. Supp. 892,895; see, also, Restatement, Property, § 2; 43 Yale L.J. 1030.)
Under this settled rule, it is the beneficiary and he alone who determines whether he will own the property, for, as this court remarked nearly a century ago, "the law does not compel a man to accept an estate, either beneficial or in trust, against his will". (Burritt v. Silliman, supra, 13 N.Y., at p. 96; see, also, Schoonover v. Osborne, supra, 193 Iowa 474, 479.) And, since an acceptance is prerequisite to the vesting of the gift, it follows that a prior renunciation will be effective to prevent the passage of any interest to the beneficiary, even though that renunciation was manifestly designed to avoid some burdensome condition attached to the gift by the testator (see Winquist v.Doering, 135 Kan. 92), to escape the incidence of inheritance tax (see Matter of Wolfe, supra, 179 N.Y. 599, affg. 89 App. Div. 349; Brown v. Routzahn, supra, 63 F.2d 914, certiorari denied 290 U.S. 641; People v. Flanagin, 331 Ill. 203,supra; Matter of Stone, 132 Iowa 136; Tax Comm. of Ohio v.Glass, 119 Ohio St. 389), or to deprive creditors, including judgment creditors, of a means of satisfying their claims. (SeeMatter of Meiburg, supra, 1 F. Supp. 892, 895; Schoonover v.Osborne, supra, 193 Iowa, at p. 477; Lehr v. Switzer,213 Iowa 658.) In short, the law does not delve into the motives which dictate the legatee's acceptance or refusal, nor does it, in the absence of fraud or collusion, forbid a choice prompted by selfish reasons.
The power of a legatee to refuse is, then, precisely the same as that of a donee of a gift inter vivos, and, of course, it is perfectly evident that, if such a donee refuses to accept the gift, his creditors are completely powerless to compel his acceptance. The mere fact that the gift is provided for by will and that *Page 407 the donor is dead should not and does not deprive the recipient legatee of his option to reject it, in spite of his creditors. That being so, the decisive question — as already noted — is whether or no there was, prior to the debtor's express renunciation on February 4, 1946, an acceptance of the legacy which disabled him from renouncing it.
Although it is true that a presumption operates in favor of acceptance, that presumption is not conclusive. (See Matter ofWaring, supra, p. 189; Albany Hosp. v. Albany Guardian Soc.,supra, pp. 440, 443.) As a matter of evidence, it is completely rebutted by an effective renunciation. (See Albany Hosp. v.Albany Guardian Soc., supra, pp. 441-442; Defreese v. Lake,109 Mich. 415, 431; Gottstein v. Hedges, 210 Iowa 272, 275.) Thus, the presumption fails — and the court agrees to this — whenever there has been a timely and outright disclaimer of the gift, whether formally or informally, in writing or by parol, as long as the disclaimer was not preceded by an acceptance. Since there was in this case an explicit written renunciation, we need but consider whether it was antecedent to acceptance; if it was, all will concede that the renunciation was effective, "that there never was a legacy" (p. 403), and that the debtor took no property under the will.
The courts below have found as fact that there was no acceptance. The majority of this court, however, have decided that the record establishes an acceptance as matter of law, and it is from that conclusion that I am impelled to dissent.
As to what constitutes an acceptance, the law is plain. It may be either express, by proof of actual and outright acquiescence, or implied, by inference from the words and conduct of the legatee. There is no claim here that an acceptance was accomplished by explicit acts or words; rather, it is said to be established by "passage of time and by word and conduct" of the debtor, "so that his power of renunciation had been lost to him prior to his attempt to exercise it" (p. 405).
In reaching this conclusion, the court states that "the debtor had a reasonable time, after his mother's death and the probate of her will, within which to renounce his legacy" (p. 402). Loss of his power to refuse a legacy is then predicated upon the passage of some ten months between the probate of the will and the date of the asserted renunciation. While I concede that under *Page 408 some circumstances a beneficiary may disable himself by unreasonable delay from effectively renouncing a legacy, the present is not such a case. Several decisions in courts of other States, holding that power to renounce may be lost after passage of time — another way of saying that an acceptance had occurred — deal with delays of a far lengthier period than is here involved. In one, for example, the lapse of time was thirteen years (Crumpler v. Barefield Wilson Co., 114 Ga. 570), in another, five years (Strom v. Wood, 100 Kan. 556), and, in a third, several years at least (Daniel v. Frost, 62 Ga. 697); and, in all of them, the debtor had been living on the property devised for the entire period involved. In my judgment, the mere lapse of ten months before renunciation does not compel the conclusion of acceptance as matter of law.
And, certainly, such an acceptance is not to be found in the questions and answers from the debtor's examination in supplementary proceedings. All that the legatee there declared was that the will provided a gift in his favor and that he had not received any part of it. In the testimony quoted by Judge CONWAY (p. 402), I cannot see any more than a simple statement by the debtor that he was named as a legatee in his mother's will, that his share amounted to one third of the residuary estate, and that he was unaware of its exact value. No duty existing to volunteer that he had renounced or planned to renounce his share, the debtor's answers cannot be stretched or strained to spell out an acceptance as matter of law.
Nor may an acceptance be founded upon any theory of "intervening rights and new considerations". This is not a case where the creditor, in extending credit to the debtor, relied either upon the legacy or upon his debtor's supposed acceptance of it. (Cf. Daniel v. Frost, supra, 62 Ga., at p. 707.) There was here no change of position by the creditor, no action to his prejudice in reliance upon any act or conduct of the debtor vis-a-vis the legacy or the debtor's asserted acceptance of it. If the debtor had renounced the gift a day or two after the will was probated, the creditor would have received nothing and could have claimed nothing — and, as I read the opinion, the court makes no contrary suggestion. While the debtor's delay in renouncing and his acknowledgment on the examination that the will named him a legatee may conceivably constitute some *Page 409 evidence that he had not rejected the gift, those circumstances are insufficient to establish as matter of law that he had accepted it.
The case would, of course, be different if the debtor had entered into a collusive agreement with those who would benefit by his renunciation. (See Schoonover v. Osborne, supra,193 Iowa 474; Bradford v. Calhoun, supra, 120 Tenn. 53, 60.) Suspicion of collusion cannot, however, take the place of evidence; and here there is not the slightest suggestion, much less proof, of collusion or fraudulent agreement among the several beneficiaries.
The order of the Appellate Division should be affirmed.
LEWIS, DESMOND and DYE, JJ., concur with CONWAY, J.; FULD, J., dissents in opinion in which LOUGHRAN, Ch. J., concurs.
Order reversed, etc.