The object of a disclaimer, is, to prevent an estate passing from the grantor to the grantee. It is a formal mode of expressing the grantee’s dissent to the conveyance before the title has become vested in him. In some cases, it may be highly proper ; as where a deed is made conveying an estate to one for life, with a remainder to another in fee. Here, in the absence of all evidence to the contrary, the law would presume the assent of the grantee in remainder, upon delivery of the deed to the grantee for life, for the benefit of both. But if the remainder-man chooses not to take the estate, he may disclaim, and thereby remove all presumption of assent. So, where a deed is executed to several persons, and delivered to one for the benefit of all, if one dissents, he may disclaim, and furnish evidence that his share still remains in the grantor. Treadwell & al. v. Bulkley & al. 4 Day 395.
But if the grantee once assents, and the title thereby becomes vested in him, he cannot, by any disclaimer, revest the estate in the grantor. For if he could, the disclaimer would have the effect of a deed, which it cannot have ; the object of the latter being to transfer property, — of the former to prevent a transfer.
But in a case of dissent, the heir cannot, by any disclaimer, prevent the estate from passing to him. It vests in him immediately upon the death of the ancestor; and no act of his is required to perfect his title. He cannot, by any act, cause the estate to remain in the ancestor ; for the latter is incapa*86ble of holding- it, after bis death. Nor can he, by a disclaimer, transfer the estate to any other person, as the heir of the ancestor: for, as has already been observed, the object of a disclaimer is not to convey, but to prevent a conveyance. He is, therefore, in the same situation, upon the death of the ancestor, as a purchaser, who has assented to the conveyance. In both cases, a transfer can only be made, by some instrument adapted to the conveyance of real estate.
A devisee, however, stands in the same situation as a purchaser. If he dissents, the estate passes to the heir, in the same manner as if no will had been made. It is entirely optional with him to take or refuse the estate devised. Townson v. Tickell & al. 3 Barn. & Ald. 31.
f In the present case, the disclaimer was made by one who was entitled to the property as tenant by the curtesy. Is he, in this respect, like a grantee, or an heir ? This species of estate has sometimes been classed with those acquired by purchase. ( But it is rather an estate thrown upon the tenant by operation of law. j Co. Lilt. 18 b. It partakes more of the, character of an estate acquired by descent than by purchase. Immediately upon the death of the wife, the estate vests in him. Like the heir, he cannot, by refusing to take it, cause it to remain in the wife ; nor can he, by a disclaimer, transfer it to others. The estate thus vested in him, becomes immediately liable for his debts; and he cannot, by any refusal to take the property, defeat the claims of his creditors.
The disclaimer offered in evidence could have no effect in shewing a title in the plaintiffs ; and was properly rejected by the court.
We are, therefore, satisfied, that no new trial should be granted.
In this opinion the other Judges concurred.
New trial not to be granted.