Rose v. Rose

• Decision Date: 30 May 1921
• Docket Number: 21842
• Citation: 126 Miss. 114,88 So. 513
• Court: Mississippi Supreme Court
• Parties: ROSE v. ROSE et al

88 So. 513

126 Miss. 114

ROSE v. ROSE et al

No. 21842

Supreme Court of Mississippi

May 30, 1921

1 WILLS. Renunciation by widow given life estate equivalent to termination of estate by death.

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.

2 WILLS. Remainder held not to vest upon renunciation by widow given a life estate so as to allow acceleration.

Where a clause in a will provides: "To my wife Laura, I give and bequeath for and during her natural life, the house and lot where I now 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"---and the life tenant renounces the will, the remainder estate does not vest in the children at death of testator, but depends upon the contingency as to which children, if any, or their issue, are living at the death of life tenant, consequently there could be no acceleration.

HON. V J. STRICKER, Chancellor.

APPEAL from the chancery court of Yazoo county, HON. V. J. STRICKER Chancellor.

Proceeding between Laura Rose and Otha Rose and others. Decree for the latter, and the former appeals. Reversed and rendered.

Decree reversed.

Barnett & Perrin, for appellant.

The question is a new one in this state, but has been decided in other states. To be frank with the court, the appellant is anxious to carry out the contract made in this case, but feels that before investing her all in a home, she should be assured of a good title.

The matter was fully argued in the court below, and it was there held that the renunciation accelerated the remainder, and that the appellees could convey a good title. The principal authorities relied on in the court below were the following: 23 R. C. L., page 556; Northern Trust Co. v. Wheaton, 94 N.E. 980; Holdren v. Holdren, 85 N.E. 537.

We think these authorities warrant the decree of the lower court, and if followed by this court will result in an affirmance of the case, but submit that the principle announced by these authorities is really based upon the cardinal doctrine with regard to the construction of wills, viz.: that the intent of the testator as expressed, should prevail. This being true, the decision of the case then depends upon the construction this court will give to the words used by the testator as follows:

"Upon the death of said Laura, the said house and lot shall 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."

We submit, that without doing violence to the language used, either one of two constructions could be placed thereon: first, that the main object of the testator was to provide a home for his wife during her life, and that the rights of the children were postponed to accomplish this object. Second, to preserve the said home not only for his wife during her life, but also for his children's children, in case any should predecease the wife.

If the first construction is adopted, we believe the application of the doctrine of acceleration will prevail; if the second is adopted, we don't see how the remainder can be accelerated. The courts have adopted various views, contingent we think, largely upon the language used in the testamentary instruments in the particular case.

In Blatchford v. Newberry, 99 Ill. 11, the doctrine of acceleration of the remainder is recognized, when not contrary to the expressed wishes of the testator, but it was held by a majority of the court, that the gift was not accelerated, because of the language used in the will, which was as follows: "Immediately after the decease of my wife."

In Augustus v. Seabolt, 3 Met. Ky. 155, where a prior estate devised had failed, the court refused to accelerate the remainder, because so to do would violate the plain language of the testator.

As the facts now are, viz., with all of the children living and none of them married, if Laura was dead, there would be no doubt that the remainder would then be vested, and if the court shall hold as is laid down as the law in 23 R. C. L., page 457, that the renunciation by the widow has the same effect as death, it naturally follows that the children have the fee to the remainder of the said lot. But this holding is based upon the idea that the testator meant, when the life estate was ended, regardless of how it came about, whether by death, by law or by renunciation, that the remainder was then to vest, and on the further presumption that the testator knew his wife had the legal right to renounce, and bring us back to the original proposition, that the intention of the testator must prevail.

It will be noted, however, that under the will only such children were to take as were living at the time of the death of Laura. We construe this to be a limitation upon the remainder, and if there had been no renunciation, the fee in any one of the children was liable to be defeated by death before the widow and living issue. Does the renunciation do away with the limitation? It does if it has the same effect as death; otherwise not.

In cases where a trust is involved, the courts generally hold that renunciation by the widow will not accelerate a gift, and while we do not claim that there is any trust feature in this case, an examination of these cases may help in the solution of the question here at issue.

In Toombs v. Spratlin, 57 S.E. 59, it was held that a trust created for the benefit of the widow and children during the life of the widow, with the remainder to the children at her death was not accelerated by a renunciation by the widow.

Where the residue of an estate was left to trustees for purpose of paying an annual income to the widow, the balance thereof to be added to the capital, and after the death of the widow to distribute the fund among certain nieces and a nephew, then surviving or their issue, it was held the renunciation by the widow did not accelerate the distribution of the fund.

The reason given for the decisions in these cases was that the general plan of the testator as declared in the will, could be best carried out, by continuing the trusts, but this reasoning cannot apply to the case at bar for the reason that the general plan of the testator was upset by the renunciation, but they illustrate that in all cases the intention of the testator must prevail.

We think the same rule will apply, whether the clause of the will is construed as a vested remainder or an executory devise. The question involved is an important one, will affect many estates in the future. In the present case we are free to confess that an opinion either way by the supreme court could be rendered without doing violence to the will in question.

For a full discussion of the point involved we refer the court to the note to the case of Holdren v. Holdren, as found in 18 L. R. A. (N. S.), page 272.

P. G. Griffin and Raynor & Rorquist, for appellee.

The whole matter in controversy seems to turn upon the construction of an item of a will reading: Item 2. To my wife Laura, I give and bequeath for and during her natural life, the house and lot where I now 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.

As shown in the statement of facts, the wife, Laura has renounced the provisions made for her by this item and in lieu thereof has elected to take her legal share of the estate of her deceased husband. The question now is what interest in the property have the children of said decedent, by the renunciation of the widow have acquired the fee to this property except as to such share as the widow, under the law is entitled. Having gone thoroughly into the matter and having looked diligently for authorities on the matter, appellee concludes that such an item of the will may have created either of two different estates in expectancy; either a vested remainder in the children living at the death of the testator, or a contingent remainder. Of course there is a possibility that such an item would create an executory devise, but due to that rule for the construction of wills which states that if a limitation can take effect as a remainder, as it can in this case, it shall be construed as such and not as an executory devise, we believe that the court reviewing the authorities hereinafter cited, could never construe this limitation as an executory devise.

Relative to the possibility of this estate being a vested remainder appellee cites Rood et al. v. Hovey et al., 15 N.W. 525, the syllabus of which is: "A testator bequeathed a life estate to his widow, remainder to his children now living, or who may be at the time of her decease to be equally divided. All his children survived him, but two died before the widow, and one left a widow and children. Held, that under the policy of Michigan statutes, and decisions, the estate in remainder vested on the testator's decease and that the heirs at law of the deceased son were entitled to the share of their ancestor. In the case of Scott et al. v. James et al., 3 Howard, 307, the nature of which case was...