American Trust Co. v. Johnson

DeNNy, J. Tbe doctrine of acceleration is recognized and accepted in this jurisdiction. It has been applied in a number of cases where tbe widow rejected tbe life estate devised or bequeathed to ber with remainder to devisees or legatees who could be definitely identified at tbe time of ber dissent. 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; Wilson v. Stafford, 60 N.C. 646; Holderby v. Walker, 56 N.C. 46; Adams v. Gillespie, 55 N.C. 244. It is tbe general rule under tbe doctrine of acceleration that vested remainders take effect immediately upon tbe death of tbe testator where tbe life estate has failed prior to tbe death of tbe testator, or immediately after the determination of tbe life estate subsequent to tbe testator’s death. This rule applies, however, only in tbe absence of an express or implied provision in tbe will to tbe contrary. 33 Am. Jur., Life Estates, Eemain-ders, etc., section 154, page 620; Neill v. Bach, supra; Thomsen v. Thomsen, 196 Okla. 539, 166 P. 2d 417, 164 A.L.R. 1426; Keen v. Brooks, 186 *598 Md. 543, 47 A. 2d 67, 164 A.L.R. 1292; Ward v. Ward, 153 Kan. 222, 109 P. 2d 68, 134 A.L.R. 657; Elliott v. Brintlinger, 376 Ill. 147, 33 N.E. 2d 199, 133 A.L.R. 1364. Likewise, 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 remainderman, or if there is evidence of an intention to postpone the taking effect of the remainder; . . .” 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. Young v. Harris, supra. In the case of University v. Borden, supra, where property was devised to the wife of the testator for life with remainder over, and the widow dissented, this Court said : “Mrs. Eaircloth (the widow) having dissented from the will and claimed her dower in the realty and her distributive share in the personalty, we are of the opinion that there was an acceleration of the devises, the enjoyment of which under the will was postponed to the time of her death. The will, in so far as provision was therein made for her, operates in the same manner, as to the time of enjoyment by those entitled after her death, as if she had died prior to her husband.” In Thomsen v. Thomsen, supra, the Court said: “The general rule appears to be that where a testator creates a life estate in his widow, and the law gives the widow the right to elect whether to take under the will or under the statute, the law charges the testator with the knowledge of the right of the widow to so elect and it will be presumed that the intention of the testator was that the election of the widow to take her share of the estate under the intestate laws in lieu of the life estate given her in the will is, in legal contemplation, equivalent to her death.” It is clear from a perusal of the will now under consideration that the primary purpose of the testator in giving the residue of his estate to his wife for life, was to make available to her during her lifetime the entire income therefrom; and the distribution among ultimate takers was only postponed in order to effect the primary purpose. This primary purpose having been defeated by the widow’s dissent, the ultimate takers are entitled to come into the immediate enjoyment of their rights under the will to the same extent as if the widow had died subsequent to the date of her dissent. Young v. Harris, supra; University v. Borden, supra; Holderby v. Walicer, supra. In our opinion, the judgment of the court below should be modified so as to direct the executor not only to pay over to George Lee, Sam M. Lee, Jr., and Harry J. Lee in equal shares, the assets remaining in the hands *599 of tbe executor after allotting to tbe widow ber distributive share of tbe estate, and setting aside sufficient assets to pay tbe annuity of $750.00 per month to Mrs. Ida J. Lee during ber lifetime, but upon tbe death of Mrs. Ida J. Lee to pay over to George Lee, Sam M. Lee, Jr., and Harry J. Lee in equal shares, if then living, otherwise to their next of kin, such assets as it may have retained and not expended in the payment of tbe annuity. Tbe judgment is modified to this extent. ¥e are of tbe further opinion that tbe construction placed upon tbe will of Curtis B. Johnson by tbe trial judge, as set forth in tbe judgment entered below, as modified herein, carries out tbe intent of tbe testator as gathered from tbe four corners of bis will, except as modified by tbe widow’s dissent. Tbe judgment as modified will be upheld. Modified and affirmed. Parkee, J., took no part in tbe consideration or decision of this ease.