Summary
In Stevens v. Stevens (1929), 121 Ohio St. 490, where a legacy was payable upon the death of a life tenant to a named legatee "should he then be living," this court refused to accelerate.
Summary of this case from Ohio National Bank v. AdairOpinion
No. 21684
Decided December 24, 1929.
Wills — Acceleration of remainders applies only when promotive of testator's intent — Trust created for widow during life, and remainder to legatees living at her death — Bequests not accelerated by widow declining to take under will.
1. The doctrine of acceleration of remainders rests upon the presumed intention of the testator and will be applied only when promotive of that intention.
2. Where a testator directs that his estate real and personal be held in trust for the use and benefit of his wife during her life, and upon her death sold and converted into money, and then directs a sum of money to be paid to a named legatee "should he be then living," the election of the widow to renounce the will and take under the law does not serve to accelerate the payment of such legacy.
ERROR to the Court of Appeals of Marion county.
This action was instituted in the court of common pleas of Marion county by the executor of the last will and testament of Charles F. Ritter, seeking a construction of the will of the testator. The portions of the will essential to a consideration of the questions presented are as follows:
"Third: All the remainder of my estate, both real and personal, I give, devise and bequeath to Ozias Washburn, of Morral, Ohio, and Howard A. Stevens, of Marion, Ohio, as trustees, to be held by them in trust for the use of my beloved wife, Lulu M. Ritter, for and during the term of her natural life.
"At the death of my wife it is my will and desire and I do hereby direct that my estate then remaining shall be sold and converted into money and distributed as follows, that is to say:
"To my friend John Buck, should he then be living, I give, devise and bequeath the sum of fifteen hundred ($1500.00) dollars;
"To my friend Howard A. Stevens, should he then be living, I give, devise and bequeath the sum of one thousand ($1000.00) dollars;
"To my little friends Howard Pearson Stevens and Ruth Alma Stevens of Marion, Ohio, I give, devise and bequeath the sum of five hundred ($500.00) dollars each;
"The balance of my estate then remaining I give, devise and bequeath to my heirs at law and next of kin then surviving."
The record discloses that Lulu M. Ritter, the widow, elected to take under the law and renounced her rights as provided in said will. She is still living. The case was heard on appeal in the Court of Appeals, which court held that "by her renunciation of said will and by reason of her election to take under the law, the payment of the legacies provided in said will was and is as a matter of law accelerated and the legatees are entitled to the immediate payment of their respective shares the same as though said widow Lulu M. Ritter had died, even though she be now living."
Thereafter, upon the allowance of motion to certify the record, proceedings in error were perfected in this court.
Messrs. Clark Arter, for plaintiffs in error.
Mr. Franklin Rubrecht, for defendants in error.
The sole question presented is whether under the terms of the provisions of this will the doctrine of acceleration of remainders has any application.
This doctrine is defined in 28 Ruling Case Law, 334, as follows: "The doctrine is one of interpretation, and proceeds on the supposition that though the ulterior devise is in terms not to take effect in possession until the decease of the prior devisee, yet, in point of fact, it is to be read as a limitation of a remainder, to take effect in every event which removes the prior estate out of the way. * * * The rule now under consideration, like all other rules for the interpretation of a will, yields to the manifest intent of the testator, and if it is manifest that the testator did not intend such a result, there will be no acceleration."
The doctrine rests upon the presumed intention of the testator and will be applied only when promotive of that intention. It is a rule of interpretation and is to be applied so as to effect and not to defeat the testator's intention. Holdren, Admr., v. Holdren, 78 Ohio St. 276, 85 N.E. 537, 18 L.R.A. (N.S.), 272.
A consideration of the terms of the will before us leads to the conclusion that the application of the doctrine of acceleration to the bequests to John Buck and Howard A. Stevens would not effect, but, on the contrary, would defeat, the intention of the testator. The situation is just the reverse as to the legacies to Howard Pearson Stevens and Ruth Alma Stevens by reason of the difference in the language employed by the testator. The express condition in the bequest to Buck and in the bequest to Stevens, "should he then be living," referring to the time of the death of testator's wife, cannot be ignored. Under the very terms of this will these two legatees cannot take the bequest prior to the time designated, and, if not then living, the legacy would lapse. The intention of the testator is plain and cannot be thwarted or defeated by the action of another. This is in accord with the rule deduced from texts and decisions that, if a gift by express terms is not to take effect in possession until the death of the particular tenant, it is not accelerated by renunciation.
In the instant case the widow's death was the time fixed for the payment of the bequests to Buck and Stevens, respectively, "should he then be living." This presents a situation where the remaindermen were to be determined at the time of the widow's death. The decision of this court in the case of Holdren v. Holdren, supra, and the cases there cited, furnish ample authority for the conclusion that the bequests to Buck and Stevens are not accelerated by the election of the widow to take under the law and her renunciation of the provisions of the will in her favor.
The judgment of the Court of Appeals will be accordingly modified, and, as modified, affirmed.
Judgment modified and affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, DAY and ALLEN, JJ., concur.