American Trust Co. v. Johnson , 236 N.C. 594 ( 1952 )

73 S.E.2d 468 (1952) 236 N.C. 594

AMERICAN TRUST CO.
v.
JOHNSON et al.

No. 525.

Supreme Court of North Carolina.

December 10, 1952.

Helms & Mulliss, Charlotte, for plaintiff, appellant.

B. Irvin Boyle, Charlotte, guardian ad litem for Susan A. Lee, Patricia D. Lee, Melinda Rex and the unborn children of George Lee, Sam M. Lee, Jr. and Harry J. Lee, appellants, in pro. per.

Cochran, McCleneghan & Miller and Tillett, Campbell, Craighill & Rendleman, Charlotte, for Mrs. Irving Harding Johnson, appellee.

Taliaferro, Clarkson & Grier, Covington & Lobdell and J. W. Alexander, Jr., Charlotte, for George Lee, Sam M. Lee, Jr. and Harry J. Lee, appellees.

DENNY, Justice.

The doctrine of acceleration is recognized and accepted in this jurisdiction. It has been applied in a number of cases where the widow rejected the life estate devised or bequeathed to her with remainder to devisees or legatees who could be definitely identified at the time of her 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; Baptist Female University v. Borden, 132 N. C. 476, 44 S.E. 47, 1007; Wilson v. Stafford, 60 N.C. 646; Holderby v. Walker, 56 N.C. 46; Adams v. Gillespie, 55 N.C. 244.

It is the general rule under the doctrine of acceleration that vested remainders take effect immediately upon the death of the testator where the life estate has failed prior to the death of the testator, or immediately after the determination of the life estate subsequent to the testator's death. This rule applies, however, only in the absence of an express or implied provison in the will to the contrary. 33 Am.Jur., Life Estates, Remainders, etc., section 154, page 620; Neill v. Bach, supra; Thomsen v. Thomsen, 196 Okl. 539, 166 P.2d 417, 164 A.L.R. 1426; Keen v. Brooks, 186 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, § 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 Baptist Female University v. Borden, supra [132 N.C. 476, 44 S.E. 50], where property was devised to the wife of the testator for life with remainder over, and the widow dissented, this Court said: "Mrs. Faircloth (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 at 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 [196 Okl. 539, 166 P.2d 420] 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 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; Baptist Female University v. Borden, supra; Holderby v. Walker, 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 of the executor after allotting to the widow her distributive share of the estate, and setting aside sufficient assets to pay the annuity of $750 per month to Mrs. Ida J. Lee during her lifetime, but upon the 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 the annuity. The judgment is modified to this extent.

We are of the further opinion that the construction placed upon the will of Curtis B. Johnson by the trial judge, as set forth in the judgment entered below, as modified herein, carries out the intent of the testator as gathered from the four corners of his will, except as modified by the widow's dissent.

The judgment as modified will be upheld.

Modified and affirmed.

PARKER, J., took no part in the consideration or decision of this case.