Undoubtedly

question at issue. there is much respectable authority to the effect (1) that the remainders created by Mr. Whitlock's will were contingent, and not vested, and (2) that her renouncement of the will did not have the effect of accelerating them. Other authorities, perhaps equally weighty, would support the conclusion that they were vested remainders, with a substitutional gift over in case any or all of the primary remaindermen died before the death of the life tenant; and, if this construction be adopted, there is practically no dissent from the conclusion that the renouncement would accelerate the enjoyment of the estate in remainder. Still others, in keeping with what seems to us a sound view, hold that the contingent character of the estate does not prevent acceleration, except where it is impossible to identify the remaindermen until the death of the life tenant, as, for example, where the limitation is strictly to the heirs of the body of the life tenant, or where there is other evidence, besides the mere provision for the life tenant, of an intention to postpone the taking effect of remainders. See note to Compton v. Rixey, 5 A.L.R. 473.

In Roe v. Doe, 5 Boyce (Del.) 545, 93 Atl. 373, Ann. Cas. 1918C, 409, also reported as Scotten v. Moore, there was a devise to the wife for life, and after her death to "my thenliving children (or, in case of their death, to to their legal representatives), share and share alike." The testator was survived by his wife and seven children. The widow renounced the will. In a subsequent ejectment suit involving the title, it was held that the remainders were accelerated whether they were contingent or vested. The court said:

"The principle of acceleration in the vesting of a remainder by the premature termination of the preceding life estate rests upon the testamentary intention, and will be applied only when it promotes that intention, and never when it defeats. it.. When, therefore, it ap

pears that the possession of the remainderman is postponed solely for the benefit of the widow of the testator, it is presumably the intention of the testator that her renunciation of the provisions made for her for life is equivalent to her death, and the beneficiaries entitled in remainder enter into enjoyment at once, subject to her rights at law if she so elects.

"If the principle is based on the presumed intention of the testator, there need be no distinction made between vested and contingent remainders in its application.

"If it be necessary to decide whether the remainder be vested or contingent, it will be found that the authorities are in hopeless conflict on this subject. A devise to the testator's children living at the death of a life tenant, as a class, with substitution of issue for any who may then be dead, is in some cases considered a vested remainder, and in others a contingent one."

In Slocum v. Hagaman, 176 Ill. 533, 52 N. E. 332, there was a devise to the wife for life, and after her death the property was to be sold and the proceeds divided pro rata among the nephews and nieces and an adopted daughter of the testator, share and share alike, with limitation over to the issue of such of the nephews and nieces as might die before the death of the wife. The widow renounced the will. The court said in the course of its opinion: "Upon examination of the whole will, we are of the opinion that the postponement of the division of the estate until the death of the widow was for the purpose of securing her income during her life, and that, when she renounced the provisions of the will, . . . the reason for the postponement of the period of distribution no longer existed; and it was proper to make such distribution as though the widow had died."

In Sherman v. Flack, 283 Ill. 457, 5 A.L.R. 456, 119 N. E. 293, there was a devise to the wife for life, and at her death the real estate was

to be sold to the highest bidder within one year from the time of her death, and after a payment of legacies to be divided among her brothers and sisters or their heirs, with remainder to testator's brothers and sisters or their heirs. The widow renounced the will, and then united with the testator's brothers and sisters in making a deed to the real estate. A brother and sister of the testator died after the conveyance, leaving children, and question was raised as to the title. It was held that the remainders were accelerated by the widow's renunciation of the will, and that the deed was good. The opinion of the court was in part as follows: "It is insisted that an insurmountable obstacle to the right of election and reconversion is that the remaindermen cannot be definitely ascertained until the death of the widow, and the briefs are devoted in great part to the discussion of the question whether the devise of the remainder to the brothers and sisters of the testator or their heirs was contingent or vested. The real question, however, is, What is the time of division? If that time has arrived, whatever may have been the contingency previously, it no longer exists, but the remainder is vested. The language of the will fixes the time for the sale and division at the death of the wife, and it is the settled rule that a devise to survivors, preceded by a life estate or other prior interest, will take effect only in favor of those who survive the period of distribution. There is, however, another rule, that, where there is a devise to one for life with remainder to another, if the life estate fails for any reason, the remainder is accelerated and takes effect at once. Blatchford v. Newberry, 99 Ill. 11. The doctrine of the acceleration of remainders proceeds upon the supposition that, although the ultimate devise is in terms not to take effect in possession until the death of the life tenant, yet in point of fact it is to read as a limitation of the remainder to take effect in every event

which removes the prior estate out of the way. The doctrine is founded upon the presumed intention of the testator that the remaindermen should take, on the failure of the previous estate, notwithstanding the prior donee may be still alive, and is applied in promotion of the presumed intention of the testator, and not to defeat his intention."

But

It will be noted that Sherman v. Flack, supra, cites Blatchford v. Newberry, 99 Ill. 11, as authority for the acceleration of the remainders; and yet the opinion seems to concede that the remainders were contingent, since "the remaindermen could not be definitely ascertained until the death of the widow." The actual holding in Blatchford v. Newberry was that the remainders were contingent, and, further, that the wife's renunciation of the life estate given her under the will was not equivalent to her death, and did not accelerate the remainders. there were peculiar facts in that case which warranted the court in holding that the testator intended the life estate to remain in existence until his wife's death, for other reasons than those affecting her own. interest and benefit. The Blatchford Case is cited and reviewed in Compton v. Rixey, supra; and, while the decision and discussion in both cases are susceptible of a construction lending support to the position contended for by the guardian ad litem in this case, both distinctly show that the doctrine of acceleration is not an arbitrary one, but depends upon the intention of the testator.

In Rench v. Rench, 184 Iowa, 1372, 169 N. W. 667, there was a devise to the wife for life, remainder at the death of the wife to his daughter "if living, or to her issue, if any, if she be dead; and, if she be dead without issue," then to a nephew. The widow renounced the will; and the court, in dealing with the effect of the wife's renunciation on the title, held that it was unnecessary to determine whether the daughter of testator took a contin

We are of opinion that the deed of April 12, 1909, from Mrs. Whitlock and her children to the bank, passed a complete title to lot 1003, and that a certificate ought to be issued accordingly, subject only to the liens thereon shown in the report of the

special examiner. The decree complained of will accordingly be reversed, and the cause remanded to the court of land registration for such further orders therein as may be requisite, in conformity with this opinion.

I. Introduction, 314.

II. Cases holding doctrine of acceleration applicable notwithstanding contingent character of remainder, 314. III. Cases in which acceleration of contingent, remainder has been denied, 314.

1. Introduction.

This annotation is supplemental to one on the same subject in 5 A.L.R. 473, which contains references to other annotations on closely related questions.

-conflict of opinion upon question.

The conflict of opinion upon the question, to which attention is called in the earlier annotation, is likewise manifest among the later decisions.

The sounder view, however, is that the doctrine of acceleration of remainders is controlled by the intention of the testator or donor, and hence is not necessarily dependent upon the circumstance that the remainder is or is not vested. AMERICAN NAT. BANK v. CHAPIN (reported herewith) ante, 304.

II. Cases holding doctrine of acceleration applicable notwithstanding contingent character of remainder.

(Supplementing annotation in A.L.R. 474.)

5

In Re Crothers [1915] 1 Ir. R. 53, 49 Ir. L. T. 35, where testator gave his wife the income of a fund so long as she should remain unmarried, and, on her remarriage, directed that she should receive a stated sum out of the fund, and also directed that on her death "the money funded for her use" should be divided among the eldest sons of the testator's brother and sisters "then living and men

tioned in this will," it was held that the determination of the widow's interest in the fund by her remarriage accelerated the subsequent interest, notwithstanding the words "then living," the court being of opinion that the time of ascertainment of the persons who were to take was also accelerated.

In the reported case (AMERICAN NAT. BANK v. CHAPIN), where testator gave the occupancy of a dwelling house and a share in his residuary estate to his wife for life, and at her death "to such of my children as may be living at her death and to the issue of any such child who may have died leaving issue, such issue to take the share their parent would have taken if alive," it was held that as the testator made no provision to meet the contingency of the renunciation by the widow of the provision made for her in the will, he must have intended that in such event it should have the effect of eliminating the period of her lifetime as a factor in the estate of the children, whose interests were accordingly accelerated.

III. Cases in which acceleration of contingent remainder has been denied. (Supplementing annotation in 5 A.L.R. 476).

the share of such child or children to go to their issue," it was held that the widow's renunciation of the provision made for her in the will did not accelerate the remainder, the court saying: "We recognize the rule of acceleration, and possibly would adopt it in this case if it were applicable; but this case is not within it, because the remainder estate did not vest in the children of the testator at the time of his death, but the clause provides a contingency upon which the remainder will vest, that is, that the property shall go to such children 'as shall then be living;' that is, living at the death of the life tenant, Laura Rose, the wife. Laura Rose may outlive all of the children, in which event the remainder would never vest in them. Some of the children may not be living at the death of the life tenant, Laura Rose; in that event only the children then living, and the surviving issue of deceased children, would take the remainder. So it will be seen that the title in the remainder depends upon the contingency as to who dies first, the wife or the children, and who of the children, or their issue, may be living at the death of the life tenant, Laura Rose. Should any one of the remaindermen die before the life tenant his title would lapse. Therefore he has no present vested title to convey. Under this view the title in the appellee remaindermen may never ripen into possession and enjoyment. It is only a contingent remainder, subject to defeat by death of the remaindermen."

C.

In Swann v. Austell (1919) C. A., 261 Fed. 465, writ of certiorari denied in (1920) 252 U. S. 579, 64 L. ed. 726, 40 Sup. Ct. Rep. 344, where testator gave the family residence to his wife "to have, hold, use, and occupy as a home for her and our children, for and during the natural life of my said wife, or until she shall marry again. Upon the happening of either of which events, said property shall go to and belong to my children that may be living at the time of the death or marriage of my said wife, share and share alike, or,

if any of my children shall be dead at that time leaving children surviving them, such last-mentioned children shall take the share of their parents," it was held that the vesting of the remainder was not accelerated by the widow's renunciation of the provisions of the will in her favor, the court saying: "If the remainders were contingent, there was no such acceleration, because acceleration applies only in case of vested remainders. The doctrine of acceleration is not applicable where its application would go counter to the testator's intention. It seems plain that in this case the testator's intention was to postpone the vesting of the remainders until Mrs. Austell's marriage or death, and to distribute it among the then living children and children's children of the testator. In view of the fact that the dower estate of Mrs. Austell in the 'home place' was identical in quantity and duration with that devised to her in the will of her husband (except for her second marriage, which did not happen), and so was exactly what her husband had provided for her by his will, we do not think that the fact that it came to her by operation of law, instead of through the will of her husband, should have the effect of setting aside the testator's manifest intention as to the time the estates in remainder created by his will were to take effect; i. e., after the estate devised to his wife should cease."

A case which is without bearing upon the question whether the contingent character of a remainder will necessarily prevent its acceleration upon the premature termination of the precedent estate, inasmuch as it is one where it is absolutely impossi ble to identify the remainderman until the death of the life tenant, is Re Silsby (1920) 229 N. Y. 396, 128 N. E. 212, in which it was held that a remainder expectant upon the determination of an invalid trust was not accelerated by the failure of the trust, inasmuch as the remaindermen, who were the descendants of the