NEILL et al.
v.
BACH.
No. 173.
Supreme Court of North Carolina.
February 3, 1950.*386 J. S. Dockery, Rutherfordton, for plaintiffs.
*387 Jones & Davis, Forest City, for defendant.
DENNY, Justice.
The appellant concedes that the principle of the acceleration of vested remainders has been recognized in this jurisdiction in several cases where the widow rejected the life estate devised to her with remainder to certain named beneficiaries. 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 of North Carolina v. Borden, 132 N.C. 476, 44 S.E. 47, 1007; Wilson v. Stafford, 60 N.C. 646.
However, it is contended by appellant in her brief, that an estate in remainder should not be accelerated when the renunciation results in a substantial diminution of the remaining assets of an estate, as it manifestly did in this case; but that the life estate should be "sequestered to compensate those beneficiaries under the will whose shares are cut down by her election." Simes, Future Interests, Vol. III, Sec. 761; 33 Am.Jur. p. 623.
While it does not appear from the record before us whether or not the above contention was raised in the action instituted in 1945, in which the Court construed the will of Grace H. Washburn, and held that the estate of the remaindermen was accelerated by the renunciation to the life estate devised to Lillian W. Neill, that was certainly the proper action in which to raise it. Consequently, the ruling of the Court in that case on the question of acceleration is res judicata.
The sole question presented for decision on this appeal is whether or not, upon the rejection and renunciation of the life estate by Lillian W. Neill in the house and lot devised to her under Item Three of the will of Grace H. Washburn, the feesimple title to the property vested immediately in the remaindermen, who were in esse at that time, to the exclusion of any other members of the class of remaindermen who might be born thereafter.
We said in Cheshire v. Drewry, supra [213 N.C. 450, 197 S.E. 7]: `This doctrine of acceleration rests upon the the ory that the enjoyment of the expectant estate is postponed for the benefit of the preceding vested estate or interest, and upon the destruction of the preceding estate or interest before it regularly expired the ultimate taker came into the present enjoyment of the property. When a widow declines, by filing a dissent thereto, to take under the will, the decisions hold that the rights and interests of the parties must be considered and determined as if she had died." This is in accord with what was said in each of the abovecited cases on the question of acceleration. However, it will be noted that in none of those cases was the remainder devised to a class whose membership was not ascertainable at the time of the acceleration of the remainder. Here the devise is to Lillian W. Neill "for the period of her natural life, with remainder in fee to her children." And as further evidence of the intent not to close the class before the death of her daughter, she stated her purpose in creating the life estate was to provide a home for her daughter. And while this intention to provide a home for her daughter for life did not affect the acceleration of the remainder when Lillian W. Neill renounced the life estate devised to her, it does indicate an intent to give the remainder to her children as a class at the death of the life tenant. And in such cases, the weight of the authority, according to Simes, Future Interests, Vol. 1, Sec. 61 and Vol. II, Sec. 379, is to the effect that children of a class born after the renunciation of a life estate and the acceleration of the remainder, will be let in during the life of the life tenant. Therefore, as held in the action instituted in 1945, to construe the will of Grace H. Washburn, the renunciation of the life estate accelerated the estate of the remaindermen and those members of the class in esse at that time, were entitled to the immediate possession of the devised premises. And such members are not required to account for rents and profits pending the birth of other members of the class. Cole v. Cole, 229 N.C. 757, 51 S.E.2d 491. Even so, the class may not be closed until the possibility of afterborn *388 children is extinct by the death of Lillian W. Neill. Cole v. Cole, supra.
Ordinarily all the members of a class can be ascertained at the time a particular estate terminates. Bell v. Gillam, 200 N.C. 411, 157 S.E. 60; Wachovia Bank & Trust Co. v. Stevenson, 196 N.C. 29, 144 S.E. 370; John L. Roper Lumber Co. v. Herrington, 183 N.C. 85, 110 S.E. 656; Cooley v. Lee, 170 N.C. 18, 86 S.E. 720. But here the limitation over is to the children of Lillian W. Neill. The full roll of those who may come within the class cannot be ascertained prior to her death. Usually the termination of the prior estate and the death of the first taker coincide. Here, however, the life tenant has rejected her devise. In so doing she did not change the date when the final roll call will be made to ascertain the members of the class. This view is supported by the fact that if she had accepted the devise of the life estate, she and the guardian of her children could not convey an indefeasible fee-simple title to the property, thereby cutting off the interest of unborn members of the class. Thompson v. Humphrey, 179 N.C. 44, 101 S.E. 738; Deem v. Miller, 303 Ill. 240, 135 N.E. 396, 25 A.L.R. 766. However, such title could be given pursuant to a judicial decree for reinvestment in which the interest of unborn members of the class would be protected. DeLaney v. Clark, 196 N. C. 282, 145 S.E. 398; John L. Roper Lumber Co. v. Herrington, supra; Poole & Blue v. Thompson, 183 N.C. 588, 112 S.E. 323; McLean v. Caldwell, 178 N.C. 424, 100 S.E. 888; Dawson v. Wood, 177 N.C. 158, 98 S.E. 459; Pendleton v. Williams, 175 N.C. 248, 95 S.E. 500; Springs v. Scott, 132 N.C. 548, 44 S.E. 116. But the guardian of the minor plaintiffs herein, is not seeking a sale of the premises involved for reinvestment, as provided in G.S. § 41-11, as amended by Chap. 811 of However such method of procedure is the 1949 Session Laws of North Carolina. open to the parties if they choose to avail themselves of it.
For the reasons herein stated, the judgment below is
Reversed.