ages sustained. We must assume that the court properly instructed the jury upon the subject. The court did not err in refusing to direct a verdict for defendant.

The judgment is affirmed, with costs to appellee.

BIRD, C. J., and MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.

SELLICK v. SELLICK.

1. WILLS CONSTRUCTION-LIFE ESTATE.

Where a husband's will gave to his wife "$25,000, to be used and enjoyed by her during her life, and at her death to be equally divided between" his nephew and niece, held, to give the widow the use of the money for her life, a life estate, and no more.

2. SAME.

That testator in one clause of his will gave said nephew and niece $5,000 to be paid presently, in no way modified the plain, unambiguous language of another clause giving them $25,000, to be paid upon the death of the wife.

3. SAME TERMINATION OF LIFE ESTATE-DISPOSITION OF FUND. Where the widow took under the statute and rejected the life estate in the $25,000 given her in the will, thereby diminishing the fund of the residuary legatee, held, that said sum should be placed in trust and the income therefrom paid to the residuary legatee during the life of the widow and at her death the corpus be paid to the remaindermen.

4. SAME ACCELERATION-APPLICABILITY.

While the doctrine of acceleration of the time of taking effect of the remainder upon the termination of the life estate by act other than the death of the life tenant must

be recognized and applied in proper cases, such doctrine should not be applied where, by the election of the widow to take under the statute, a portion only of the legacies are diminished in order to make up the amount required by the statute to satisfy the widow's statutory rights.

Appeal from Van Buren; Des Voignes, J. Submitted June 11, 1919. (Docket No. 3.) Decided August 9, 1919.

Bill by William R. Sellick against Arthur F. Sellick and another for the construction of a will. From a decree for plaintiff, defendants appeal. Reversed, and decree entered.

Thomas J. Cavanaugh, for plaintiff.

Alfred J. Mills, for defendants.

FELLOWS, J. This case involves the construction of the will of William J. Sellick, late of Paw Paw, Van Buren county, and the effect as between certain of the legatees of the election of the widow to take under the statute. Mr. Sellick left real estate inventoried at $8,500 and personal property inventoried at upwards of $176,000. He left a widow, Caroline Sellick, and one son, William R. Sellick, the plaintiff, now grown to manhood, who was the child of a former wife. He also left collateral kindred, including the defendants Arthur F. Sellick, a nephew, and Gertrude Sellick, a niece. To his collateral kindred other than defendants he gave varying sums aggregating $15,000. By the second clause of his will he gave to each of the defendants $5,000. The first clause of his will is as follows:

"I give, devise and bequeath to my wife, Caroline Sellick, Twenty-Five Thousand Dollars ($25,000), to be used and enjoyed by her during her life and at her death to be equally divided between my nephew, Arthur F. Sellick, and my niece, Gertrude Sellick."

The residue of his estate he gave to his son, the plaintiff. The widow elected to take under the statute. The trial judge construed the first clause of the will, when taken in connection with the second clause which gave each defendant $5,000 and the residuary clause, as giving the widow absolutely $25,000, and accordingly held that the defendants took nothing under such clause. This rendered unnecessary the determination of the other questions involved. From a decree in accordance with these views the defendants appeal and it is here urged by their counsel that the first clause of the will gave the widow a life estate with remainder over to them; that by the election of the widow to take under the statute her life estate is at an end, and that applying the doctrine of acceleration of remainders they are now entitled to said sum of $25,000. On the other hand, it is insisted by counsel for the appellee that the bequest to the widow gave her an absolute estate; that the bequest falls within that class of bequests controlled by Jones v. Jones, 25 Mich. 401, and kindred cases, and that the decree should be affirmed. It is further insisted by appellee's counsel that if we decline to follow this contention and accept the view that a life estate only was given the widow, still we should not apply the doctrine of acceleration of remainders, but that such life estate given to the widow by the will should be sequestered to reimburse the plaintiff in part for the depletion of his bequest occasioned by the payment out of it of the sums necessary to make up the widow's statutory share. In short, that he is known in the law as a disappointed legatee, and that the doctrine of acceleration of remainders should not be adopted at the expense of disappointed legatees.

We are not disposed to take time or space in differentiating between the instant case and Jones v. Jones, supra, and kindred cases. Under the repeated deci

sions of this court the clause of Mr. Sellick's will above quoted gave the widow the use of $25,000 for her life, a life estate, and it gave her no more. Glover v. Reid, 80 Mich. 228; Gadd v. Stoner, 113 Mich. 689 Farlin v. Sanborn, 161 Mich. 615 (137 Am. St. Rep. 525); In re Moor's Estate, 163 Mich. 353; Bateman v. Case, 170 Mich. 617; Laberteaux v. Gale, 196 Mich. 150. The opinions in these cases together with the authorities cited in them establish beyond doubt that under the language found in this clause Caroline Sellick took but the life use of $25,000. While it is true that the entire will must be considered, we find nothing at variance from this conclusion in any of its provisions. The fact that the testator gave each of the defendants $5,000 to be paid presently in no way modifies the plain, unambiguous language of clause one by which he gave them $25,000, to be paid upon the death of his wife.

This brings us at once to the interesting and novel questions in the case. It must be conceded at the outset that the decisions of the court of last resort of the State of Pennsylvania sustain the contention of defendants' counsel unequivocally. Coover's Appeal, 74 Pa. St. 143; Ferguson's Estate, 138 Pa. St. 208 (20 Atl. 945); Vance's Estate, 141 Pa. St. 201 (21 Atl. 643, 12 L. R. A. 227, 23 Am. St. Rep. 267). Is the rule laid down by the Pennsylvania court supported by the weight of authority and by equitable principles? Should the doctrine of acceleration of remainders be applied where by its application the remainderman gets more than the will gave to him and legatees either specific or residuary get less? To these questions we shall now direct our attention

Some support is given defendants' contention by the holding of the court of appeals of Kentucky in Trustees Church Home v. Morris, 99 Ky. 317 (36 S. W. 2). But in that case it was said:

(

"There is no reason whatever, in this case to depart from the direct command of the testator to distribute this estate in the manner in which he directs it to be done. It might be different if an intention was apparent to benefit certainly the residuary legatees, and the bulk of the estate was expected to be left for them. In such event they, and not others, could be said to be the chief objects of the testator's bounty, and they would be protected, not because it would be equitable or just, but because such was the intention of the testator."

And Sherman v. Baker, 20 R. I. 446 (40 Atl. 765, 40 L. R. A. 717); Dean v. Hart, 62 Ala. 308; Slocum v. Hagaman, 176 Ill. 533 (52 N. E. 332), and Adams v. Gillespie, 55 N. C. 244, give color to defendants' claim. But some of these cases only consider the general doctrine of acceleration of remainders and do not determine that such doctrine should be applied where by an election not to take under the will other legacies to other legatees are diminished.

That the determination of the life estate by act other than the death of the life tenant is as effective to let the remainderman into possession as the death of the life tenant, that the time of taking possession is accelerated by such act, is generally recognized in this country and in England. Thus in Jull v. Jacobs, 35 L. T. Rep. 153, the testator gave a life estate to his daughter with remainder over to her children on their becoming of age. The daughter witnessed the will thus incapacitating her from taking the life estate. The life estate having failed from this fact it was held that the children who took the fee should be let into possession at once, Vice Chancellor Malins remarking:

"Then, taking away her life estate, does that cause an intestacy as to the life, or an acceleration of the estate in remainder? It is clear that the children are postponed because of the mother's life estate, but if she does not take the life estate why should they be