This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
17. If a father should die testate, devising an estate to his daughter, and the latter should afterwards die without a knowledge of the will, it would hardly be contended that the devise became void for want of acceptance, and that the heirs of the devisee must lose the estate. Neither will it be denied that equitable estates are every day thrust upon people by deeds, or assignments, made in trust for their benefit, nor will it be said that such beneficiaries take nothing until they assent. Add to these the estates that are thrust upon people by the statute of descent, and we begin to ' estimate the value of the argument, that a man shall not be made a property holder against his will.
Thurman, C. J., in Mitchell's Lessee v. Ryan, 3 Ohio St. 377.
18. Staggers v. White, 121 Ark. 328, 181S. W. 139; Turner v. Turner 173 Cal. 782, 161 Pac. 980; Miller v. Meers, 155 111. 284, 40 N. E. 577; Vaughan v. Godman, 94 Ind. 191; Tansel v. Smith, 49 Ind. App. 263, 93 N. E. 548, 94 N. E. 890; Fitzgerald v. Tvedt, 142 Iowa, 40, 120 N. W. 465; Combs v. Ison, 168 Ky. Ky. 728, 182 S. W. 953; Campbell v. Kuhn, 45 Mich. 513, 40 Am. Rep. 479; Fen-ton v. Fenton, 261 Mo. 202, 168 S. W. 1152; Chambers v. Chambers, 227 Mo. 262, 137 Am. St. Rep. 567, 127 S. W. 86; Davis v. Garrett, 91 Tenn. 147, 18 S. W. 113; Bjmerland v. Kley, 15 Wash. 101, 45 Pac. 730.
In the case of a conveyance in trust, the legal litle is usually regarded as vesting in the trustee without any acceptance by him, or even any knowledge on his part of the conveyance,19 this result being not infrequently attained on the theory of a presumption of assent.20 Even though he subsequently dissents, and refuses to accept, the conveyance does not become nugatory, but equity will appoint another trustee.21 The equitable interest under a deed of trust likewise vests in the beneficiary named without any acceptance thereof
19. Adams v. Adams, 21 Wall. (U. S.) 185, 22 L. Ed. 504; Devol v. Dye, 123 Ind. 321, 7 L. R. A. 439; Minot v. Tilton, 64 N. H. 371, 10 Atl. 682; Gulick v. Gulick, 39 N. J. Eq. 401; Myrover v. French, 73 N. C. 609; Read v. Robinson, 6 Watts & S. (Pa.) 329; First Bank v. Holmes. 85 Pa. 231; Talbot v. Talbot, 32 R. I. 72, Ann. Cas. 1912C, 1221, 78 Atl. 535; Cloud v. Calhoun, 10 Rich. Eq. (S. Car.) 358; Fur-man v. Fisher, 4 Cold. (Tenn.) 626, 94 Am. Dec. 210; Fletcher v. Fletcher, 4 Hare 67; Ames, Cases on Trusts (2d Ed.) 229.
But statements are occasionally found to the effect that no title vests in the trustee until he expressly or by implication accepts the trust. 1 Perry, Trusts, Sec. 259, Armstrong v. Morrill, 14 Wall. (U. S.) 138; Oxley Stave Co. v. Butler County, 121 Mo. 614, 26 S. W. 367; Mcfall v.
Kirkpatrick, 236 111. 281, 86 N. E. 139.
20. Kennedy v. Winn, 80 Ala. 165; Devol v. Dye, 123 Ind. 321, 7 L. R. A. 439; Howry v. Gardner, 41 Ohio St. 642; Mckinney v. Rhoads, 5 Watts (Pa.) 343; Eyrick v. Hetrick, 13 Pa. 488; Goss v. Singleton, 2 Head (Tenn.) 67; Bowden v. Parrish, 86 Va. 67, 19 Am. St. Rep. 873.
21. Irvine v. Dunham, 111 U. S. 327, 28 L. Ed. 444; Smith v. Davis, 90 Cal. 25, 25 Am. St. Rep. 92, 27 Pac. 26; Dailey v. New Haven, 60 Conn. 314, 14 L. R. A. 69, 22 Atl. 945; Braswell v. Downs, 11 Fla. 62; French v. Northern Trust Co., 197 111. 30, 64 N. E. 105; Brandon v. Carter. 119 Mo. 572, 41 Am. St. Rep. 673; King v. Donelly, 5 Paige (N Y.) 46; Roseman v. Roseman, 127 N. C. 494, 37 S. E. 518; Talbot v. Talbot, 32 R. I. 72, Ann. Cas. 1912C, 1221, 78 Atl. 535; Cloud by him, or even any knowledge by him of the trust.22 It is sometimes said, in this connection, that one is presumed to accept the benefit of a trust.23
The courts, in referring to the necessity of acceptance, do not always clearly indicate whether it is to be regarded as an element of delivery, or as something additional to, and separate from, delivery. Perhaps they more frequently suggest the former view,24 and this they apparently do in effect when they state that the grantor's record of the instrument does not create any presumption of delivery if without the knowledge or assent v. Calhoun, 10 Rich. Eq. (S. C.) 358; Ames, Cases on Trusts, 230.
22. Brooks v. Marbury, 11 Wheat. (U. S.) 78; Security Trust & Safe Deposit Co. v. Farrady, 9 Del. Ch. 306, 82 Atl. 24; Koch v. Streuter, 232 111. 594, 83 N. E. 1072; Milholland v. Whalen, 89 Md. 212, 44 L. R. A. 205, 43 Atl. 43; Boston v. Turner, 201 Mass. 190, 87 N. E. 634; Marquette v. Wilkinson, 119 Mich. 414, 43 L. R. A. 840, 78 N. W. 474; Gulick v. Gulick, 39 N. J. Eq. 401; Martin v. Funk, 75 N. Y. 134. 31 Am. Rep. 446; Moloney v. Tilton, 22 N. Y. Misc. 682, 51 N. Y. Supp. 682; Breedlove v. Stump, 3 Yerg. (Tenn.) 257; Connecticut River Sav. Bank v. Albee's Estate, 64 Vt. 571, 33 Am. St. Rep. 944, 25 Atl. 487; Skip-with's Ex'r v. Cunningham, 8 Leigh (Va.) 272; Fleenor v. Hensley, 121 Va. 367, 93 S. E. 582; See Mcewen v. Bamberger, 3 Lea, (Tenn.) 576.
23. Brunson v. Henry, 140 Ind. 455, 39 N. E. 256; Emporia First Nat. Bank v. Ridenour, 46 Kan. 718, 26 Am. St. Rep. 167; H. B. Cartwright & Bro. v. United States Bank & Trust Co., 23 N.
M. 82, 167 Pac. 436; Stone v. King, 7 R. I. 358, 84 Am. Dec. 557; Cloud v. Calhoun, 10 Rich. Eq. (S. C.) 358; Furman v. Fisher, 4 Coldw. (Tenn.) 626, 94 Am. Dec. 557.
24. Stallings v. Newton, 110 Ga. 875, 36 S. E. 227; Byers v. Spencer, 101 111. 429, 40 Am. Rep. 212; Bremmerman v. Jennings, 101 Ind. 253; O'connor v. O'connor, 100 Iowa, 476, 69 N. W. 676; Sullivan v. Sullivan, 179 Ky. 686, 201 S. W. 24; Meigs v. Dexter, 172 Mass. 217, 52 N. E. 75; Miller v. Mccaleb, 208 Mo. 562, 106 S. W. 655; Jaskson v. Phipps, 12 Johns. (N. Y.) 41S: Spencer v. Carr, 45 N. Y. 406, 6 Am. Rep. 112.
Occasionally it has been said that delivery and acceptance must be simultaneous. Church v. Gil-man, 15 Wend. (N. Y.) 656, 30 Am. Dec. 82; Hulick v. Scovil, 9 111. 159. Contra, Sullivan v. Sullivan, 179 Ky. 686, 201 S. W. 24: Regan v. Howe. 121 Mass 124; Welch v. Sackett, 12 Wis. 243; And see Stone v. New England Box Co., 216 Mass. 8, 102 N E. 949.
Of the grantee.25 There would seem, however, to be some difficulties in the way of regarding the grantor's indication of intention as constituting delivery only when accompanied or immediately followed by acceptance. Adopting such a view, the grantor would, after having indicated his intention that the conveyance should operate, have the right until acceptance to change his intention, and to dispose otherwise of the property, and yet the cases regard his indication of intention, in the case both of conditional26 and unconditional delivery,27 as concluding him in this regard. It is more satisfactory, it is submitted, conceding that acceptance is necessary, to regard it as something outside of delivery, as, in effect, an indication of the grantee's intention, as delivery is an indication of the grantor's intention.28 The contrary vew, above referred to, is apparently to some extent the outcome of the mistaken tendency to regard delivery as involving a manual transfer of the instrument, such a transfer being ordinarily impossible without the assent of the person to whom the transfer is made.
The acceptance may, it has been said, be given by another person acting on behalf of the grantee, such acceptance being sufficient if afterwards ratified by the grantee.29 Such a statement is somewhat ambiguous. If it means that, provided an unauthorized person ac25. Ante, Sec. 461, note 84.
26. Ante, Sec. 462, notes 31-36.
27. Ante, Sec. 461, note 60.
28. Such a view is involved in the occasional statements that the acceptance may be given by the grantee even after the grantor's death. Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 So. 812; Cates v. Cates, 152 Ky. 47, 153 S. W. 10; Burkey v. Burkey - Mo. - 175 S, W. 623; Taylor v. Sanford, 108 Tex. 340, 193 S. W. 661.
29. Meigs v. Dexter, 172 Mass. 217, 52 N. E. 75; Couch v. Addy, 35 Okla. 355, 129 Pac. 709.
In Blackwell v. Blackwell, 196 Mass. 186, 12 A. & E. Ann. Cas. 1070, it was decided that there may be a valid acceptance by the grantor in behalf of the grantee, whose general agent he was. The cases cited in support of the decision merely involved the principle that no manual transfer of the instrument is necessary.
Cepts on behalf of the grantee, title immediately vests in the latter, subject to an option on his part as to whether he will ratify the acceptance, this appears to be the equivalent of a statement that, although there is no valid acceptance, title immediately passes to the grantee subject to an option in him subsequently to repudiate the transfer, this being the common law and present English rule. It may, however, mean that an unauthorized acceptance being invalid, title does not pass until the grantee, by indicating his adoption of the acceptance, in effect himself accepts the conveyance, this in effect recognizing the asserted American rule, that the grantee's acceptance is necessary. Whichever meaning is given to the statement, it does not appear that the unauthorized acceptance has any legal significance, the grantee's ratification of such acceptance, so called, being merely his acceptance of the transfer, of which there had previously been no valid acceptance.