Keesler v. North Carolina National Bank

*17 Moore, J. The trial court adjudged that no portion, principal or income, of the 16,660 shares of stock of Auto Finance Company, referred to in the instrument executed by Emmie McConnell Moore Howerton on 9 February 1960, shall be paid to her by the trustee during her life time. Thus it is adjudged that the instrument is binding upon Mrs. Howerton. G.S. 36-41. No exception was taken to this ruling by any of the parties to the action. Therefore, this is the settled law of the case as to her. On this appeal the question for determination is: What effect, if any, does the instrument have upon the rights and duties of the other parties to the action with respect to the trust estate? Plaintiffs maintain that, with respect to the portion of the trust estate represented by the 16,660 shares of stock of Auto Finance Company, the activation of the trusts provided in the will of Herman A. Moore for the benefit of plaintiffs is accelerated by reason of the document executed by the widow, and that these trusts should be set up forthwith and payment of income to plaintiffs from the shares of stock should proceed. “The problem of acceleration of remainder interests arises when for some reason the precedent estate given by will . . . terminates prematurely or in a manner not contemplated by the will in providing for the remainder over. The person to whom the life estate is provided may die before the testator, or the gift of the life estate may be void, or the life tenant may refuse or renounce the gift of the life estate, whereas the will provides only that the remaindermen are to take upon, or at, or after, the death of the life tenant. Under the doctrine of acceleration, the general rule is that vested remainders take effect immediately upon the death of the testator where the life estate has failed prior to testator’s death, or immediately after the determination of the life estate subsequent to the death of the testator, whether the failure or determination of the life estate is due to death, revocation, incapacity of the devisee to take, or any other circumstance. This rule applies, of course, in the absence of a controlling equity or an express or implied provision in the will to the contrary. ... By renunciation or repudiation of a life estate is meant such an unequivocal act by the life tenant as would destroy his claim as a life tenant so that he could not thereafter assert it, and would accelerate and mature the remainder. . . . The doctrine of acceleration applies to personal property as well as to real property.” 33 Am. Jur., Life Estates, Remainders, etc., s. 154, pp. 620-622. In this jurisdiction the doctrine of acceleration of estates in remainder has been applied in instances where a widow, who has been given a life estate by the will of her husband, dissents from the will and elects to take her dower or statutory share instead. Trust Co. v. *18 McEwen, 241 N.C. 166, 84 S.E. 2d 642; Blackwood v. Blackwood, 237 N.C. 726, 76 S.E. 2d 122; Trust Co. v. Johnson, 236 N.C. 594, 73 S.E. 2d 468; Bank v. Easterby, 236 N.C. 599, 73 S.E. 2d 541; 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; Baptist University v. Borden, 132 N.C. 476, 44 S.E. 47; Wilson v. Stafford, 60 N.C. 646. In final analysis, the question as to whether or not remainders will accelerate, when the life estate devised to the widow falls in by reason of her dissent from the will of her husband, is to be determined from the intent of the testator gathered from the will as a whole. “The doctrine of acceleration, by which the ‘enjoyment of an expectant interest is hastened/ rests upon the theory that such enjoyment having been postponed for the benefit of a preceding vested estate or interest, on the . . . determination of such preceding estate before it would regularly expire, the ultimate takers should come into the present enjoyment of their property. Unless a contrary intent is disclosed by the will, the position is fully recognized, where a widow has dissented. ...” Young v. Harris, supra. In such case the dissent of the widow, so far as the remaindermen are concerned, is equivalent to her death. Trust Co. v. McEwen, supra. In making a will a husband is presumed to have knowledge of and to have taken into consideration the statutory right of his widow to dissent from the will. G.S. 30-1. A remainder will not be accelerated if it is impossible to identify the remaindermen or if there is an intention on the part of the testator to postpone the taking effect of the remainder. Trust Co. v. Johnson, supra. If it appears in the will that the maker of the testament intended that the life of the person who was intended to receive the particular estate should terminate before the remainder interest should become possessory, the court will not accelerate the nonpossessory interest. In Trust Co. v. McEwen, supra, testator devised and bequeathed property to a trustee for the benefit of his wife for life, with provision that upon her death the estate should be equally divided among his children, and with further provision that, if any child should be then deceased, his or her share should go to his or her children. The widow dissented from the will. It was held that the interests of testator's children accelerated and they were entitled to immediate possession. It was there stated, “A vested remainder may be accelerated, although future contingent interests will thereby be cut off” (quoting from 31 C.J.S., Estates, s. 82, p. 96). In the instant case, however, the widow did not dissent from the will of Herman A. Moore. She elected to take under the will. It is suggested that the instrument she executed and delivered to the trustee in 1960 amounts to a partial renunciation of the testamentary *19 gift. Under a different factual situation this Court indicated that a partial renunciation is not recognized in this State. Bailey v. McLain, 215 N.C. 150, 155, 1 S.E. 2d 372. This rule probably would not be applied in all situations. “Where two or more separate and independent gifts are made by a will to a beneficiary, he is, as a general rule, entitled to accept one or more and disclaim others, unless a contrary intention on the part of the testator appears from other provisions of the will.” 91 A.L.R., Anno. — Rejecting part of testamentary gift, s. II, p. 608. However, the gift to Mrs. Howerton with respect to the indicated shares of stock was not separate from nor independent of the remainder of the trust corpus. Furthermore, the act of defendant Howerton in releasing her interest in the shares of stock does not constitute a renunciation as that term is defined and limited in relation to estates created by will. A legatee under a will is nob bound to accept a legacy or devise therein provided, but may disclaim or renounce his right under the will, even where the legacy or devise is beneficial to him, provided he has not already accepted it. The right to renounce a legacy is a natural one and needs no statutory authorization. A title by devise requires the assent of the devisee before it can take effect. When a devisee accepts a devise, his title relates back to the death of the testator, but when there is a renunciation the devise never takes effect and title never vests in the devisee. Perkins v. Isley, 224 N.C. 793, 32 S.E. 2d 588. Mrs. Howerton accepted the legacy provided for her in the will of Herman A. Moore and received the benefits for 12 years before executing the instrument dated 9 February 1960. Mrs. Howerton’s estate is not terminated. For all practical purposes she has retained all the benefits conferred upon her by the will. In the instrument executed by her she specifically reserves “all . . . other rights under the trust and in all other properties included therein and in the income and principal thereof, particularly . . . right to receive from said trust a minimum of $12,000 per year, augmented by such additional amount as the trustee in its discretion shall deem necessary for (her) comfortable support. . .” These benefits are all that the will provides for her. She has merely released the trustee from the duty of paying any of these benefits from the principal and income of the specified shares of stock, and relinquished whatever rights she had to require that the payment of benefits be made from this stock. It is our opinion, from a careful consideration of the terms of the will, that the testator did not intend a piecemeal acceleration of the trusts provided for his son and daughter, but made provisions to the contrary. He anticipated that, after payment of the benefits to his wife, there might be surplus net income from the trust estate. He pro *20 vided, in such event, that “such surplus net income shall accumulate in the hands of . . . trustee and shall be . . . added to the principal of . . . trust estate and shall thenceforth be subject to the terms and provisions hereinafter contained controlling the distribution of the principal of this trust.” If the release by the widow has any effect, it is to create a surplus. She merely recognizes the existence of a surplus. The trustee is under the duty to accumulate and hold the surplus subject to the terms of the will. Furthermore, the testator was fully aware of the ages of his wife and children and that his wife might live for many years. He had in mind that his wife might be living when his son and daughter attained age 35. He provided: “If such son shall be 35 years of age at the time of the death of my wife, said Trustee shall make immediate distribution to such son . . .” There is a somewhat similar provision referring to the arrival of the daughter at age 35. To allow the contention of plaintiffs would be to rewrite, in part, the will of the testator. In altering a trust, the court exercises its equity jurisdiction when, and only when, it is necessary to preserve the trust and effectuate its primary purpose. Carter v. Kempton, 233 N.C. 1, 9, 62 S.E. 2d 713. It is contrary to the holdings and inclination of this Court to make a will for a decedent so as to meet the convenience and wishes of interested parties. In re Westfeldt, 188 N.C. 702, 125 S.E. 531; McDaniel v. King, 90 N.C. 597. The judgment below is Affirmed.