In re Estate of Bryce , 194 Pa. 135 ( 1899 )

Opinion by

Mr. Justice Fell,

The testator devised to his son, John P. Bryce, three lots of land, and directed by his will that a house should be erected on the lots equal in value to a house which he had erected on other lots devised to another son. John P. Bryce had before his father’s death lived with his mother who was executor of her husband’s wilf; and he continued to live with her until his death, which occurred eight years later. The house was not built because he did not want it built. The appellants claimed to have awarded to them from his father’s estate the value of the house in money. This claim was resisted on the ground that he had declined to accept his father’s gift.

Because of the implied benefit, the assent of a donee will be presumed, and the burden of proof is upon those who allege a refusal to accept: Tarr v. Robinson, 158 Pa. 60. But a mere refusal to accept does not raise a presumption of an election to take something else. An election must be affirmatively shown either by proof of declarations or of unequivocal acts from which an election may be inferred. The testimony presented at the audit was exceedingly meager, but it was clear, distinct and unimpeached, and it fully warranted the conclusion reached by the learned judge of the orphans’ court, that John P. Bryce had declined to have a house built. The refusal was definite; he said he never wanted a house built on the lots; and there was nothing to show an intention' to postpone the right, or to show an election to take the value of the house in money.

The decree is affirmed at the cost of the appellants.