I concur with my associates in the conclusion reached and the reasons assigned, except in one respect. It is my notion that the appellees' right of possession, with the proper noted limitation, has been accelerated.
Carpenter v. Denoon, 29 Ohio St. 379, is sound. Its application to shares of corporate stock, negotiable by endorsement and delivery, to me seems improper. A life tenant attempting to convey away the fee of real estate can convey no more than the life estate. His grantee may enjoy it, but he must return the fee at the death of the life tenant. In the case of the stock in question, the innocent purchaser need not restore anything; possession, voting power, or the right to future dividends. The corpus of the bequest with all its attributes has completely passed. Therefore, the rights or position of the life tenant's assignee plays no part in the question of acceleration. Surely the remaindermen are entitled to possession as against the *Page 381 corporation which made the wrong possible. Its convenience should not be considered.
I do not read Marbury v. Ehlen, 72 Md. 206, 19 A. 648, as do my associates. The remainder in that case was left to a class that might have been augmented or decreased. The remaindermen were not determinable until the death of the life tenant. It was therefore proper that the bequest be held in its entirety until death of the life tenant determined who should receive the remainder. In the present controversy the remaindermen are determined and entitled to immediate personal possession, limited as to earnings before the death of the life tenant.
The author of the note appearing in 18 L.R.A. (N.S.), 272, which cites Holdren v. Holdren, 78 Ohio St. 276, 85 N.E. 537, states the general rule of acceleration of possession in those cases where a widow renunciates the provisions of a will in her favor, in this fashion:
"Unless a contrary intention on the part of the testator is manifest, a renunciation by the widow of a life interest given her by the terms of the will is equivalent to its termination by her death * * *. The rule rests upon the theory that the life estate or interest is presumably to be regarded as in the nature of a charge upon the gift over, the abolition of which permits the ultimate disposition to take immediate effect."
If such happens when a widow relinquishes a life tenancy, surely the same effect must follow when she does an act with respect to this legacy's remainder which destroys the charge upon the gift over, in so far as she or her assignee is concerned.
ROSS, J., of the First Appellate District, and MONTGOMERY and SHERICK, JJ., of the Fifth Appellate District, sitting by designation in the Eighth Appellate District. *Page 382