WACHOVIA BANK & TRUST COMPANY v. McEwen

Denny, J. The appellants contend that the judgment of the court below is erroneous. They insist that the remainder interests of Frances M. Hunter, Mary M. Ellington, Helen M. Anderson, and Betty W. McEwen are contingent upon their surviving the life tenant, and that the dissent of the widow did not accelerate the vesting of such interests. We do not concur in.this view. Barnhill, J., now Chief Justice, speaking for this Court in Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E. 2d 341, defined a vested remainder as follows: “The remainder is vested, when, throughout its continuance the remainderman and his heirs have the right to the immediate possession whenever and however the preceding estate is determined; or, *169 in other words, a remainder is vested if, so long as it lasts, the only-obstacle to the right of immediate possession by the remainderman is the existence of the preceding estate; or, again, a remainder is vested if it is subject to no condition precedent save the determination of the preceding estate.” It is the general rule that remainders vest at the death of the testator, unless some later time for the vesting is clearly expressed in the will, or is necessarily implied therefrom. It is likewise a prevailing rule of construction with us that adverbs of time, and adverbial clauses designating time, do not create a contingency but merely indicate the time when enjoyment of the estate shall begin. Pridgen v. Tyson, 234 N.C. 199, 66 S.E. 2d 682; Priddy & Co. v. Sanderford, supra. In 31 C.J.S., Estates, section 82, page 96, it is said: “A vested remainder may be accelerated, although future contingent interests will thereby be cut off ... A remainder will not be accelerated if it is impossible to identify the remaindermen, or if there is evidence of an intention to postpone the taking effect of the remainder; but, where contingencies are determined and donees ascertained, the doctrine of acceleration applies as well to a contingent as to a vested remainder. . . . An instrument providing that the particular estate shall terminate on the happening of an event specified may provide for the acceleration and immediate vesting of what would otherwise be contingent remainders.” Blackwood v. Blackwood, 237 N.C. 726, 76 S.E. 2d 122; Christian v. Wilson’s Ex’rs., 153 Va. 614, 151 S.E. 300; Eastern Trust & Banking Co. v. Edmunds, 133 Me. 450, 179 A. 716. In our opinion, the interests of the children of Carl J. McEwen vested at the death of the testator, and we so hold. Therefore, any question relative to the acceleration of their interests and the right to the immediate possession thereof, must be determined in light of the legal effect of the widow’s dissent. The election of the widow, Minnie Bell McEwen, to take under the statute in lieu of taking the life estate devised to her in her husband’s will, in so far as the remaindermen are concerned, was equivalent to her death. Bank v. Easterby, 236 N.C. 599, 73 S.E. 2d 541; Trust Co. v. Johnson, 236 N.C. 594, 73 S.E. 2d 468; Neill v. Bach, 231 N.C. 391, 57 S.E. 2d 385; Cheshire v. Drewry, 213 N.C. 450, 197 S.E. 1; Young v. Harris, 176 N.C. 631, 97 S.E. 609, 5 A.L.R. 477; University v. Borden, 132 N.C. 476, 44 S.E. 47. The doctrine of acceleration rests upon the theory that the enjoyment of an interest having been postponed for the benefit of a preceding estate, upon determination of such preceding estate before it would ordinarily expire, ultimate takers should come into the immediate enjoyment of their property. Trust Co. v. Johnson, supra, and cited eases. *170 A consideration of tbe will of Carl J. McEwen, deceased, leads us to tbe conclusion tbat tbe testator devised a life estate to bis wife solely for ber benefit, and tbat sucb estate was not created in any sense for tbe independent purpose of postponing tbe disposition of bis estate until tbe death of bis wife in tbe event sbe rejected tbe devise thereunder and elected to take ber dower interest and distributive share in tbe estate as provided by law. Hence, tbe judgment of tbe court below is Affirmed.