Union Nat. Bank of Charlotte v. Easterby

73 S.E.2d 541 (1952)

236 N.C. 599

UNION NAT. BANK OF CHARLOTTE et al. v. EASTERBY et al.

No. 531.

Supreme Court of North Carolina.

December 10, 1952.

*542 Frank W. Snepp, Jr., Charlotte, in pro. per., guardian ad litem for unknown persons, in being and not in being, having an interest in the action, appellants.

B. Irvin Boyle, Charlotte, in pro. per., guardian ad litem for all minor defendants, appellants.

Robinson & Jones, Charlotte, for plaintiff, appellee.

Tillett, Campbell, Craighill & Rendleman, Charlotte, for Ruth Green Easterby, Lizzie Marion Easterby, Mattie Easterby, and Hugh Easterby, appellees.

DENNY, Justice.

The appellants argue and contend that the dissent of the widow was induced by the terms of an agreement, the performance of which is conditioned upon the dissent resulting in the vesting of the estate of F. C. Easterby in the two sisters and brother of the testator, absolutely and in fee simple, subject only to the rights of the widow, and, therefore, such dissent was not a voluntary *543 election on the part of the widow to take against the will of her husband as required by law in such cases.

We do not think the agreement entered into by and between the named beneficiaries in the will of F. C. Easterby has any bearing whatever on the validity or invalidity of the widow's dissent. The right of a widow to dissent from her husband's will is one given to her by law. And such right may be exercised by her at any time within the period fixed by statute. G.S. § 30-1. Furthermore, in the exercise of such right, she is not required to assign any reason therefor. And in the absence of evidence that the widow was induced to dissent, without knowledge of her rights and to her prejudice, it will be presumed that she acted voluntarily and with full knowledge of her rights. In view of the facts as disclosed on this record, the contention of the appellants will not be upheld.

It is also contended by the appellants that the interests of Lizzie Marion Easterby, Mattie Easterby and Hugh Easterby are contingent upon their surviving the life tenant, and that the dissent of the widow did not accelerate their interests.

We do not concur in the view taken by the appellants. Any question relative to survivorship, vested or contingent remainders, in connection with the interests of the remaindermen, under the provisions of the will under consideration, was determined when the widow's dissent was filed. Her election to take under the statute in lieu of the life estate devised to her in the will, in so far as the remaindermen are concerned, was equivalent to her death. American Trust Co. v. Johnson, N.C., 73 S.E.2d 468; 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. And what was said in American Trust Co. v. Johnson, supra, with respect to the doctrine of acceleration, is applicable to the facts in this case and it is not necessary to repeat here what was said on the subject in that opinion.

A careful consideration of the will of F. C. Easterby, deceased, leads us to the conclusion that the testator devised a life estate to his wife solely for her benefit, and that such estate was not created in any sense for the independent purpose of postponing the disposition of his estate until the death of his wife in the event she should dissent from his will.

Therefore, the ruling of the court below to the effect that upon the filing of the widow's dissent Lizzie Marion Easterby, Mattie Easterby and Hugh Easterby became the absolute owners of the estate of F. C. Easterby, deceased, free of the trust and of any contingent interests of the heirs at law and next of kin of the testator, subject only to the rights of the widow, will be upheld. Such ruling is not only in accord with our decisions but with the decisions generally on the question of acceleration where the facts are similar to those in this case. 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; Eastern Trust & Banking Co. v. Edmunds, 133 Me. 450, 179 A. 716; Christian v. Wilson's Ex'rs, 153 Va. 614, 151 S.E. 300; Equitable Trust Co. v. Proctor, 27 Del.Ch. 151, 32 A.2d 422; In re Schmick's Estate, 349 Pa. 65, 36 A.2d 305; Lowrimore v. First Savings & Trust Co., 102 Fla. 740, 140 So. 887, 891; Union Trust Co. v. Rossi, 180 Ark. 552, 22 S.W.2d 370; Young v. Eagon, 131 N.J.Eq. 574, 26 A.2d 180.

The judgment of the court below is affirmed.

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