Rose v. Rose , 126 Miss. 114 ( 1921 )

Holden, J.,

delivered the opinion of the court.

This is a suit for specific performance, and involves the construction of item 2 of the will of Wash Rose, deceased, which determines the whole case. The testator left surviving him six children, the appellees, and his wife, Laura Rose, the appellant. The provision in the will which we are to construe reads as follows:

“Item 2. To my wife Laura, I give and bequeath for and during her natural life, the house and lot where I how live, fronting on Monroe street and running back to North street. Upon the death of said Laura, the said house and lot is to go to such of her children begotten by me as shall then be living, but in case any of said children then-be dead and leave issue surviving them, the share of such child or children, to go to their issue.”

The wife, Laura Rose, renounced the provision made for her in the will, and agreed in writing to purchase the six-sevenths interest from, the children of deceased, but some question arising as to whether the children could convey a good title to Laura Rose, this suit was filed for specific performance, in order to settle the question of title to the property mentioned.

The chancellor held that the renunciation of the will by the wife,. Laura Rose, immediately vested the title and possession in the children of deceased under the rule of acceleration. We think this was error, due no doubt to the incorrect construction of the clause of the will in question.

The rule is well established that a renunciation by the widow of a life estate bequeathed her is equivalent to its termination by her death so far as the vesting in possession of the remainder is concerned, unless a contrary intention of the testator is manifest in the will.

We recognize the rule of acceleration, and possibly would adopt it in this case if it were applicable; but this case is not within it, because the remainder estate did not vest in the children of the testator at the time of his death, but the clause provides a contingency upon Avhich the remainder Avill vest, that is, that the property shall go to such children “as shall then be living;” that is, living at the death of the life tenant, Laura Rose, the wife. Laura Rose 'may outlive all of the children, in Avhich event the remainder would never vest in them. Some of the children may not be living at the death of the life tenant, Laura Rose; in that event only the children then living and the surviving issue of deceased children, would take the remainder. So it Avill be seen that the title in the remainder depends upon the contingency as to Avho dies first, the wife or the children, and Avho of the children, or their issue, may be living at the death of the life tenant, Laura Rose. Should any one of the remaindermen die before the life tenant his title would lapse. Therefore he has no present vested title to convey.

Under this vieAv the title in the appellee remaindermen may never ripen into possession and enjoyment. It is only a contingent remainder, subject to defeat by death of the remaindermen.

The principle of acceleration of estates where the life tenant terminates his estate seems to rest upon the reasoning that the life estate is to be regarded as in the nature of a charge upon the gift over, the extinguishment of Avbich allows the ultimate disposition to take immediate effect. The rule seems to be good, and is generally followed whenever the remainder vests at the death of the testator; there being no contingency nor any other testamentary obstacle in the way of immediate possession and enjoyment of the fee. Holdren v. Holdren, 78 Ohio St. 276, 85 N. E. 587, 18 L. R. A. (N. S.) 272.

Such is not the case before us, and therefore the decree of the lower court is reversed, and judgment rendered here for appellant.

Reversed and judgment here for appellant.