WACHOVIA BANK & TRUST COMPANY v. McEwen , 241 N.C. 166 ( 1954 )

84 S.E.2d 642 (1954) 241 N.C. 166

The WACHOVIA BANK & TRUST COMPANY, Executor and Trustee under the Last Will and Testament of Carl J. McEwen, Deceased,
v.
Minnie Bell McEWEN, Frances M. Hunter, Mary M. Ellington, Helen M. Anderson, Betty W. McEwen, Carl McEwen Ellington, a minor; Jean Hunter, a minor; Susan Hunter, a minor; Judith Anderson, a minor; Joyce Anderson, a minor; the unborn issue of Frances M. Hunter; the unborn issue of Mary M. Ellington; the unborn issue of Helen M. Anderson; the unborn issue of Betty M. McEwen; L. M. McEwen, Sr.; L. M. McEwen, Jr.; Mary Kathryn McEwen, a minor; L. M. McEwen, III, a minor; James Webb McEwen, a minor; Herbert L. McEwen, a minor; Carol Elizabeth McEwen, a minor; Margaret Elaine McEwen, a minor; Robert J. McEwen; and all other persons whose names are unknown, in being or who may be in being at the time of the death of Minnie Bell McEwen and who have, or may have any interest in the Estate of Carl J. McEwen, deceased.

No. 533.

Supreme Court of North Carolina.

November 24, 1954.

B. Irvin Boyle and John Schuber, Jr., Charlotte, guardians ad litem.

McDougle, Ervin, Horack & Snepp, Charlotte, for appellee.

DENNY, Justice.

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, 343, 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, 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, § 82, p. 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; but, where the 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. Union Nat. Bank v. Easterby, 236 N.C. 599, 73 S.E.2d 541; American 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; Baptist Female University v. Borden, 132 N.C. 476, 44 S.E. 47, 1007.

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. American Trust Co. v. Johnson, supra, and cited cases.

A consideration of the will of Carl J. McEwen, deceased, leads us to the conclusion that the testator devised a life estate to his wife solely for her benefit, and that such estate was not created in any sense for the independent purpose of postponing the disposition of his estate until the death of his wife in the event she rejected the devise thereunder and elected to take her dower interest and distributive share in the estate as provided by law. Hence, the judgment of the court below is

Affirmed.