Young v. . Harris
97 S.E. 609
N.C.
1918
Check Treatment
Hoke, J.

The will in question of Creed F. Young, former owner of the property, and duly admitted to probate, provides that, subject to payment of debts and two specified legacies of $1,000 each, all of the testator’s property, real and personal, shall be held by S. W. Carter and John S. McElroy, trustees, also appointed executors, for the use and benefit of his wife, Dulcena E. Young, during her widowhood, allowing her to have the actual use and enjoyment of the house and farm where testator resided, such stock and property as may be sufficient and necessary for the use of the said farm, and paying her from time to time such sums as may be necessary to her proper support, etc.; that if the wife should ever marry, the said trustees shall take immediate possession of all the property, real and personal, and distribute the same among the testator’s next of kin “who would be entitled to the same at law, etc., except the two legacies, as stated, etc.” And it appearing by the admissions of the parties that the widow shortly after her husband’s death dissented from the will; that the father, J. P. Young, grantor of defendants, was at that time the next of kin and only heir-at-law of the *634 testator, we concur in his Honor’s view that his deed was effective to pass the title to defendants, and plaintiffs have, therefore, been properly nonsuited.

The doctrine of acceleration, by which the “enjoyment of an expectant interest is hastened,” rests upon the theory that such enjoyment having-been postponed for the benefit of a preceding vested estate or interest, on the destruction or determination of such preceding estate before it would regularly expire, the ultimate takers should come into the present enjoyment of their property. Unless a contrary intent is disclosed by the terms of the will, the position is fully recognized, where a widow has dissented and, declining to take the preceding estate or interest given her by the will of her husband, has entered into the possession and enjoyment of the interests conferred upon her by the law. In that event, the widow ceases to hold under the will, and in cases like the present the decisions hold that the rights and interests of the parties must be considered and determined as if she had married or died.

Thus, in Wilson v. Stafford, 60 N. C., 646-649, Battle, J., delivering the opinion, said: “This was a dissent of the widow and her claiming the share of the property as if he had died intestate; the effect of this upon the disposition made for his children in the will must, after the assignment of dower and giving her an equal part with the children in the personal estate, be the same as if she had died or married.”

-And in Fox v. Rumery, 68 Me., 121-129: “All the wife’s interest in it is at an end as much as if she were dead. The rule is that the extinction of the first interest carved out of the estate only accelerates the right of the second taker.”

And in In re Estate of Rawlings, 81 Iowa, 701-706, Chief Justice Beck, delivering the opinion, said: “The property was to be kept for the use of the wife under the will. As she refuses to take under the will, that part of the items relating to the keeping of the property cannot be obeyed and must be left out of view. The saíne is true as to the widow’s life estate. The will provided that Ann Elizabeth Kery (Cary) and James R. Kery (Cary) shall take the property after the widow’s life estate ends. But the widow refuses to take a life estate and takes dower. It clearly appears that the testator intended that the devisees just named should take the property after its enjoyment by the widow ceased and after her interest therein was terminated. He did not intend that the beneficiaries to these devisees should be under the control of his wife or should be defeated by her. Under the exercise of her option, she refuses to take a life estate, but takes the estate the law gives her. It clearly appears that the testator intended the devisees to take of the property whatever remained after the widow’s right thereto terminated. The law will effectuate the intentions of the testator, if possible, and *635 will secure to the legatees as nearly the benefits intended by the provisions of the will in their favor as can be done. 1 Rdf. Wills (3d Ed.), 429.”

On the facts of this record, there is authority tending to support the position that the ascertainment .of th.e “next of kin,” within the meaning of this will, would in any event be referred to the death of the testator. Jones v. Oliver, 38 N. C., 370. But conceding this to be otherwise in the present instance, not only is there nothing in the will that forbids the application of the principle of acceleration, to which we have referred, but it is clear from a perusal of the instrument that, subject to the payment of the legacies, which, on the facts presented, do not affect the question, the entire purpose in putting this estate in the hands of the trustees was to insure the proper maintenance of the testator’s widow while she remained unmarried or until she died without having remarried, and that the distribution among the ultimate takers was only postponed in order the better to effect the primary purpose; and this purpose and the preceding interest conferred on the widow having been entirely removed by her dissent, the'ultimate takers come into the immediate enjoyment of their rights to the extent that the same creates no interference with the interests which the law has conferred upon the widow. The father, at that time, being the sole heir-at-law and next of kin, his deed, as heretofore stated, was effective to carry the title, subject 'to the widow’s dower, and she having died, the defendants have been properly declared the true owners.

An interesting illustration of the principles applicable, and which we hold to be controlling on the facts presented, appears in the .well-considered case of University v. Borden, 132 N. C., 477, opinion by our former Associate Justice Connor, and authoritative decisions here and elsewhere are in full support of -the position. Holderby v. Walker, 56 N. C., 46; Adams v. Gillespie, 55 N. C., 244; Dale, Admr., v. Bartly, 58 Ind., 101; Yeaton v. Roberts, 28 N. H., 459; Marvin v. Ledwith, 111 Ill., 144.

There is no error in the record, and the judgment of nonsuit

Affirmed.