University of Virginia Library

I.

In answering the first question above, we are at the
outset confronted by a difficult situation by reason of the
fact that the decisions of our Courts of last resort are not
in harmony upon the subject; in fact, there are two distinct
lines of authority, each of which is based upon sound and
logical reasoning, the conclusion reached by following one
being diametrically opposed to that resulting from the other.

I will refer to these decisions as briefly as possible,
and then endeavor to reconcile their apparent irreconcilability.

Although the gift to the University is of personalty,
for the sake of convenience I shall refer to it as a vested
remainder.

The general rule seems to be that:

Upon the renunciation of his wife's will by a husband,
all of its provisions for him become inoperative, but all

other provisions of the will remain in force.

- Franklin v. Hastings (Ill.) 97 N. E. 265

- Fennell v. Fennell (Kan.) 106 Pac. 1038

There can be no question that this is sound law if the
quantity of the estate is sufficient, and the provisions
of the will are such that all of its directions may be
strictly followed in spite of the renunciation. But what
of the situation arising when by the widow's election a
loss results to other legatees and devisees by reason of
the abatement of their portions to make up the full amount
to which the widow is entitled?

Shall the remainder to the University be accelerated
by reason of the failure of the intermediate estate and take
effect in possession to its full extent immediately, to
the detriment of the residuary devisee, or should possession
of said remainder be postponed, and the corpus thereof held
intact, the income therefrom being applied, pending the
death or marriage of the widow, toward reimbursing the residuary
legatee for the amount of loss occasioned to him
by the renunciation?

Out of the conflict of opinion upon this subject our
difficulties arise.

DOCTRINE OF ACCELERATION OF ESTATES.

Although the ulterior devise is, in terms, not to take
effect in possession until the decease of the prior devisee,
if tenant for life, yet in point of fact it is to be read as
a limitation of the remainder to take effect in every event
which removes the prior estate out of the way.

- Northern Trust Co. v. Wheaton, 94 N. E. 980.

Doubtless the amount of the residuum of the estate would
be reduced by the election of the widow to take under the
Statute and the payment to her of her distributive share of
the personalty; but that is where the uncompensated loss
ultimately should fall, unless it is otherwise indicated in
the will.

- Dunlap v. McCloud (Ohio-1911) 96 N. E. 774.

Where testator gives son 80 acres of land and widow
renounces will and receives 40 acres thereof, loss to the son
will be made up out of residuum at the loss of residuary legatees.

- Pittman v. Pittman (Kan) 107 Pac. 235.

A testator bequeathed his personal property to his wife
for life, and provided that at her death certain specific
legacies should be paid, and the residue should go to certain
relatives. The wife renounced the will and took onehalf of the

personal property absolutely, — Held, that the specific
legacies were thereupon payable in full at once, the wife's
renunciation being equivalent to her death.

In re- Vance's Estate (Penn.) 21 Atl. -. 643, (1891).

The testator is presumed to know that the widow's
rights under the law are paramount to her rights under his
will, and therefore it is not accurate to say that his whole
scheme of disposition of his property is destroyed by the
widow's election. It is disarranged pro tanto, but in the
absence of any reference to such contingency or provision
for it in the will, there is ordinarily nothing on which
to found a presumption that he would have made any specific
difference in distribution, had he known she would exercise
her right — certainly not that he would have decreased
any of the definite pecuniary legacies to swell the amount
going at the end of the list to the residuaries. No Court
is authorized to make distribution for the sake of equality.
The testator's scheme must be carried out as he made it,
except so far as that has been rendered impossible by the
widow's action.

In re- Vance's estate, supra.

There is a line of authorities holding that upon renunciation
by a widow of the benefits of a life estate intended
for her by the will, such of said property as remains after
her election may be sequestered by the Court and used as a
trust fund during the life of the widow from which the residuary
legatees are to be compensated for the losses sustained
by them by reason of such election.

But this rule does not obtain in those estates in which
the doctrine of acceleration of estates has become established.

(Insert)

In re- Vance's estate, supra.

In the case of Macknet v. Macknet, 24 N. J. Eq., p. 292,
the Court in holding that estate in remainder, then under
consideration should be accelerated in its vesting, cites the
following:

(Insert)

In re- Vance's estate, supra.

The law must have a settled and uniform rule, and it is
that as to provision in a will for legacies subordinate to
a life interest in the widow, and contingent upon her death, or
payment of which is postponed till then, her election to take
against the will is equivalent to the widow taking her share
as if the husband had died intestate, and the will then operates
on the rest of the estate precisely as it the widow were dead.
A court of equity will interpose, if necessity requires, to
preserve the intention of the testator from destruction, but
such interposition never should take place in favor of a subordinate,
as against a preferred or superior interest; and therefore
never in favor of a residuary as against a definite
legatee, unless upon a plain implication in the will that the
residuary legatee was in fact a preferred object of the testator's
bounty.

The early cases in which it was held that an estate
in reversion vests immediately upon the determination of
the life estate upon which it is limited, by the death
of the tenant for life, or by the surrender or forfeiture
of his estate, or his disqualification to take it (1
Jarman on Wills, 513; Sheppard's Touchstone 435) have been
followed in this country in cases such as the present.

It seems to be settled by the weight of authority
that — "Where the widow, who has been given a life interest
under the will, renounces and elects to take her
dower or the Statutory allowance instead, her renunciation
works extinguishment of her life estate, and accelerates
the rights of the second taker".

Citing Fox v. Rumery, 68 Me. 121;

Dean v. Hard, 62 Ala. 310

20 Am. & Eng. Ency. Law, pp. 895 & 897, and cases
cited in Note 3.

The doctrine of acceleration proceeds upon the supposition
that, though the ulterior devise is in terms not to
take effect in possession until the decease of the prior
devisee, if tenant for life, yet that 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.

- 1 Jarman on Wills, 539

- Blatchford v. Newberry, 99 Ill. 11.

Whether the life estate is determined by a revocation,
or by death, or by the renunciation of the widow, or by any
other circumstance, which puts the life estate out of the
way, the remainder takes effect, having only been postponed
in order that the life estate might begiven to the life
tenant.

- Blatchford v. Newberry, supra.

Where it can be shown, however, that the intention
of the testator is that the remainder shall not take effect
until the expiration of the life of the prior donee, the remainder
will not be accelerated.

DOCTRINE OF REMUNERATION OF RESIDUARY LEGATEES

There is a very respectable line of authorities holding
that where that portion of the estate which the widow's renunciation
leaves intact can be held together during her life
and the rents and profits therefrom applied toward remuneration
of the residuary legatees whom her election has injured,
this should be done,

See Jones v. Knappen (Vermont) 22 Atl. 630.

For a very excellent note by Mr. Henry P. Farnham collecting
the leading cases on this subject, see 14 L.R. A., pages
293-to-295.

The renunciation of the widow could not defeat the gift
of the remainder, but the latter becomes immediately accelerated,
charged however, with the equity in favor of disappointed devisees.

- Kirchner v. Kirchner, 127 N.Y. Supp. 299.

The general rule is, where a widow renounces provisions
of a will and elects to take under the law, and where devisees
and legatees are disappointed in realizing the provisions made
for them, by the widow, that the benefits renounced by the widow
are equitably applied as far as possible in compensating the
losses so sustained by her election. . . . As between other persons,
the will will be enforced as near in accordance with the
intention of the testator as it can be enforced.

-Pittman v. Pittman (Kan.) 107 Pac. 235.

VIRGINIA RULE.

Cited as bearing on the subject but not directly in point:-

-Turner v. Citizen's Bank, 111 Va. 184, not in point.

-Waggoner v. Waggoner, 111 Va. 325, not in point.

-Kinnaird v. Williams, 35 Va. 400, not directly in
point. See on general subject, Coway v. Epes, 2 Pat. & H. 520

In the opinion of Judge Brokenbrough, and Judge Cabell, in
Michells v. Johnson, 33 Va. 470 and 474, it would seem that our
Court in that case inclined to the view that the property renounced
by the widow should be applied toward the indemnification
of the residuary legatees.

The latest case on the subject in Virginia, more or less
directly in point, is that of McReynolds, v. Counts, 50 Va.
242, decided at Lewisburg at July Term, 1852. The facts were
as follows: - M., by his will, devises his real estate to his
wife for her life and at her death to his son, J.; and he gave
his personal estate after payment of his debts equally among
his eight children. His real estate consisted of a farm on
which he lived. His wodow renounced the provision made for her
by the will; and dower not having been assigned to her, she lived
for some years on the farm which she permitted her son, J., to
cultivate and take the profits of, in consideration of his supporting
her. Upon a bill filed by the other children to havedower
assigned to the widow, and for a division and distribution of
the estate, claiming an account of the rents from the widow and
J., it was HELD:

1st, The widow was entitled to occupy and cultivate
the farm without rent until dower was assigned to her; and
she might allow another to do it for her.

2nd. The two-thirds of the land remaining after the
assignment of the widow's dower should be applied to indemnify
the legatees of the personal estate for the loss
they sustained by the widow's renunciation of the provision
made for her by the will, and claim of her third of the
personal estate; and for this purpose the said two-thirds
of the land should be rented out and the proceeds applied
to the satisfaction of the legatees.

3rd. After the legatees had been satisfied for the
loss of so much of their legacies as was taken by the
widow, or after the death of the widow, whichever event
shall first occur, the said two-thirds of the land is to
be delivered to J., as devisee in remainder under the will.

The criterion by which to judge whether a case falles
within one or the other of these two lines of decision seems
to me to be as follows:-

First. If, by the will a life estate is given the
widow with remainder over to one or to a class of persons
whose estates in such remainder are of the same dignity, then
upon renunciation of the will by the widow these estates will
be accelerated and take effect in possession immediately
upon the renunciation just as they would have done under the
provisions of the will upon the death of the widow. And if
there is a loss to such remaindermen occasioned by the
renunciation it will then be partially compensated for by
reason of such earlier possession of the estate; at all events,
nothing will be gained by postponing possession in said
remaindermen.

Second. If by the will a life estate is given the widow
with remainder over to one or several of the same class of
persons, and with a residuary clause whereby still other persons
are granted estates, then upon renunciation of the will by
the widow and a resulting increase in the property received
by her, the estates in remainder will not be allowed to take
effect in possession as of the date of renunciation by
acceleration, but will be held and the rents, issues and profits
applied toward the building up of the residuum until such
residuum is compensated for the depletion suffered by it upon
the renunciation. The rationale of this rule rests upon the
theory that to accelerate the remainders would result in
defeating the intention of the testator as to the amount which
the residuary legatees should take. If the payment of definite
legacies (taking effect in possession of remainders) is deferred

until the widow's death, the legatees or remaindermen
will get precisely the same time intended by the testator,
and so they cannot complain.

Third. It would seem, therefore, that the question
as to whether or not the residuary legatees have an equity
which will require the life estate to be sequestered for their
benefit as against specific legatees, depends upon the facts
of the particular case.

In answer, therefore, to section (a) of Question 1
above, I should say that in this case the amount of the
$50,000 legacy should not be reduced pro tanto to make up
the widow's share, but the whole amount should be paid to
the Rector and Visitors.

Answering section (b) of said Question 1, my opinion
is that said $50,000 should be held by the Executors pending
the death or marriage of the widow, and the income therefrom
paid to Dr. Parrish until the amount so paid him shall be
equal to the amount of loss occasioned him as residuary
legatee by reason of the widow's renunciation; and when full
restitution is made the whole amount should be paid to the
University. If the widow should die or remarry before full
compensation is made to Dr. Parrish, he will have to stand
the loss, for upon the happeneing of either of these events
said remainder will take effect in possession and come into
the same class with the legacy to Conny Brown and the bequest
to the Trustees of Emanuel Church, both of which are hereafter
referred to.