Schenck, J.
This is an action instituted by the plaintiffs, as substituted trustees under the will of John C. Drewry, Sr., wherein they pray “That because of the death of John 0. Drewry before he had attained the age of 35 years the plaintiffs are uncertain of their duties as trustees under the said will and of the proper distribution of the assets of the trusts of which they are trustees if the same, or any part thereof, are now distributable, and they therefore pray the court for the construction of said will and an adjudication of the true meaning thereof, and particularly for the advice and instruction of the court upon the following questions: (a) What duty, if any, have the trustees with respect to the ‘Times Building’ referred to in Item III of the will? (b) Has the $30,000 trust in favor of John C. Drewry now terminated? And (1) if so, to whom is the fund payable; (2) if not, to whom is the income payable, and for how long a time? (c) Has the residue trust terminated? And (1) if so, to whom is the fund payable; (2) if not, to whom is the income payable, and for how long a time? (d) Has the residue trust terminated in part only? And (1) if.so, what part has terminated and to whom is that part payable; (2) what part has not terminated and to whom is the income therefrom payable, and for how long a time? (e) What provision should be made to provide the monthly payment of $15.00 per month to Mattie A. Mangum? (f) Upon dissent from the will of John C. Drewry, Sr., by Kittie Holt Drewry, did the $60,000 trust in her favor become a part of the residue trust? (g) To whom is the income from the residue trust fund and the $30,000 insurance trust fund, received or accrued at the time of the death of John O. Drewry, now payable?”
John C. Drewry, Sr., died 2 October, 1916, leaving surviving him his widow, Kittie Holt Drewry, his son, John C. Drewry, and grandson, James G. Hanes, Jr.
John C. Drewry married Mary Hardy and died on 12 September, 1937, twelve days prior to the 34th anniversary of his birth, leaving surviving him his widow Mary Hardy Drewry and two children, Mary Holt Drewry and John C. Drewry, Jr., aged about 12 and 5 years, respectively.
James G. Hanes, Jr., is now just past 21 years of age, and is unmarried.
Mrs. Kittie Holt Drewry, widow of John 0. Drewry, Sr., dissented from the will of her husband and has been allotted her dower in his real estate and has received her distributive share of his personal property, the building and storehouse on Hargett Street, between Fayetteville and Wilmington streets, in the city of Raleigh, known as the “Times Building” (mentioned in Item III of the will of John 0. Drewry, Sr.), having been allotted as her dower.
John C. Drewry left a will wherein he devised and bequeathed all of his real and personal property to his wife, Mary Hardy Drewry, and, upon failure of the executors therein named to qualify, his widow, Mary Hardy Drewry, was duly appointed and qualified as his administratrix
c. t. a.
A. L. Purrington, Jr., was duly appointed guardian
ad liiem,
of Mary Holt Drewry and John 0. Drewry, Jr., infant children of John 0. Drewry.
John H. Duncan was duly appointed guardian
ad litem
of the unborn children of James G. Hanes, Jr.
The provisions for specific legacies made in the will of John C. Drewry, Sr., have been carried out, and the trusts therein provided have been set up and have been functioning since the death of the testator, with the exception of the trust for the benefit of the widow, Mrs. Kittie Holt Drewry.
The portions of the will of John C. Drewry, Sr., germane to this action are as follows:
“Item III. I give, bequeath and devise to my wife, Kittie Holt Drewry, for and during her lifetime, the net income from my building and storehouse in the city of Raleigh, situated on the south side of Hargett Street, between Fayetteville and Wilmington streets, Raleigh, N. C., known as the Times Building, and direct my Trustee to pay the same to her quarterly. After her death, I direct my Trustee to convey this property to my son, John C. Drewry, Jr., if he be then alive. If he predeceased my wife, or dies without issue surviving, then I direct that this property be divided among my heirs at law. . . .
“Item IY. I give and bequeath to my son John C. Drewry, ‘now junior,’ who has been a good boy all of his life and who has been a great joy to us, all and every one of my several tracts of land lying and being situate in House Creek Township, Wake County, free of debt — if any mortgage is on the farm at my death, I want it paid off out of my estate — to have and to hold during his lifetime, and then to be divided equally among his male heirs, they to share and share alike. These tracts or parcels of land consist of the one purchased from Miss Rebecca Rogers and others, and contains 125 acres, more or less. Also the tract purchased from Ed Rogers and wife, containing 56 acres, more or less, and two purchased from Allan Rogers and wife, one containing 11 acres,
and tbe others 19 acres, more or less. Also tbe land purchased from John Moore and wife, fronting on the Raleigh and Oxford Road, containing 45 acres, more or less, and the adjoining tract purchased from James Shaw, containing 30 acres, more or less. Also the tract purchased by R. S. Rogers and myself from J. 0. Freeman, and afterwards purchased by me from R. S. Rogers and wife, and containing 68 acres, more or less. Also the tract purchased at the Commissioner’s sale from one of the heirs of Burke Rogers, containing 26 acres, more or less. All of these tracts together containing about 400 acres. It is my desire that my son, John C. Drewry, Jr., shall keep this land during his lifetime, and then divide it equally among his male heirs if he has any, as I want this property to remain in the family, and be known as Drewry Hill Farm. If he has no male heirs, then I desire that it shall be divided equally among the female heirs. Should the said John 0. Drewry, Jr., die without issue or without any children then living, the property herein given shall revert to my estate and it or its proceeds become a part of the general trust fund hereinafter provided for.
“Item VI. I give, devise and bequeath to my executor, the Raleigh Savings Bank & Trust Company, whom I hereby constitute and appoint trustee for that purpose, the sum of $120,000.00 for the uses and purposes set out in Paragraphs VII, VIII and IX, and upon the terms and conditions as follows:
“Said trustee shall hold and manage all of said property or the investments into which it may be converted, and receive any income from it, and out of said income to pay the cost and expenses of executing the trust, including any tax or assessment against the trust estate, and pay the net income to the beneficiaries as herein set out.
“Said trustee shall set apart out of the funds and securities in their hands the three separate trusts named in Items 7, 8, and 9.
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Schenck, J.
This is an action instituted by the plaintiffs, as substituted trustees under the will of John C. Drewry, Sr., wherein they pray “That because of the death of John 0. Drewry before he had attained the age of 35 years the plaintiffs are uncertain of their duties as trustees under the said will and of the proper distribution of the assets of the trusts of which they are trustees if the same, or any part thereof, are now distributable, and they therefore pray the court for the construction of said will and an adjudication of the true meaning thereof, and particularly for the advice and instruction of the court upon the following questions: (a) What duty, if any, have the trustees with respect to the ‘Times Building’ referred to in Item III of the will? (b) Has the $30,000 trust in favor of John C. Drewry now terminated? And (1) if so, to whom is the fund payable; (2) if not, to whom is the income payable, and for how long a time? (c) Has the residue trust terminated? And (1) if so, to whom is the fund payable; (2) if not, to whom is the income payable, and for how long a time? (d) Has the residue trust terminated in part only? And (1) if.so, what part has terminated and to whom is that part payable; (2) what part has not terminated and to whom is the income therefrom payable, and for how long a time? (e) What provision should be made to provide the monthly payment of $15.00 per month to Mattie A. Mangum? (f) Upon dissent from the will of John C. Drewry, Sr., by Kittie Holt Drewry, did the $60,000 trust in her favor become a part of the residue trust? (g) To whom is the income from the residue trust fund and the $30,000 insurance trust fund, received or accrued at the time of the death of John O. Drewry, now payable?”
John C. Drewry, Sr., died 2 October, 1916, leaving surviving him his widow, Kittie Holt Drewry, his son, John C. Drewry, and grandson, James G. Hanes, Jr.
John C. Drewry married Mary Hardy and died on 12 September, 1937, twelve days prior to the 34th anniversary of his birth, leaving surviving him his widow Mary Hardy Drewry and two children, Mary Holt Drewry and John C. Drewry, Jr., aged about 12 and 5 years, respectively.
James G. Hanes, Jr., is now just past 21 years of age, and is unmarried.
Mrs. Kittie Holt Drewry, widow of John 0. Drewry, Sr., dissented from the will of her husband and has been allotted her dower in his real estate and has received her distributive share of his personal property, the building and storehouse on Hargett Street, between Fayetteville and Wilmington streets, in the city of Raleigh, known as the “Times Building” (mentioned in Item III of the will of John 0. Drewry, Sr.), having been allotted as her dower.
John C. Drewry left a will wherein he devised and bequeathed all of his real and personal property to his wife, Mary Hardy Drewry, and, upon failure of the executors therein named to qualify, his widow, Mary Hardy Drewry, was duly appointed and qualified as his administratrix
c. t. a.
A. L. Purrington, Jr., was duly appointed guardian
ad liiem,
of Mary Holt Drewry and John 0. Drewry, Jr., infant children of John 0. Drewry.
John H. Duncan was duly appointed guardian
ad litem
of the unborn children of James G. Hanes, Jr.
The provisions for specific legacies made in the will of John C. Drewry, Sr., have been carried out, and the trusts therein provided have been set up and have been functioning since the death of the testator, with the exception of the trust for the benefit of the widow, Mrs. Kittie Holt Drewry.
The portions of the will of John C. Drewry, Sr., germane to this action are as follows:
“Item III. I give, bequeath and devise to my wife, Kittie Holt Drewry, for and during her lifetime, the net income from my building and storehouse in the city of Raleigh, situated on the south side of Hargett Street, between Fayetteville and Wilmington streets, Raleigh, N. C., known as the Times Building, and direct my Trustee to pay the same to her quarterly. After her death, I direct my Trustee to convey this property to my son, John C. Drewry, Jr., if he be then alive. If he predeceased my wife, or dies without issue surviving, then I direct that this property be divided among my heirs at law. . . .
“Item IY. I give and bequeath to my son John C. Drewry, ‘now junior,’ who has been a good boy all of his life and who has been a great joy to us, all and every one of my several tracts of land lying and being situate in House Creek Township, Wake County, free of debt — if any mortgage is on the farm at my death, I want it paid off out of my estate — to have and to hold during his lifetime, and then to be divided equally among his male heirs, they to share and share alike. These tracts or parcels of land consist of the one purchased from Miss Rebecca Rogers and others, and contains 125 acres, more or less. Also the tract purchased from Ed Rogers and wife, containing 56 acres, more or less, and two purchased from Allan Rogers and wife, one containing 11 acres,
and tbe others 19 acres, more or less. Also tbe land purchased from John Moore and wife, fronting on the Raleigh and Oxford Road, containing 45 acres, more or less, and the adjoining tract purchased from James Shaw, containing 30 acres, more or less. Also the tract purchased by R. S. Rogers and myself from J. 0. Freeman, and afterwards purchased by me from R. S. Rogers and wife, and containing 68 acres, more or less. Also the tract purchased at the Commissioner’s sale from one of the heirs of Burke Rogers, containing 26 acres, more or less. All of these tracts together containing about 400 acres. It is my desire that my son, John C. Drewry, Jr., shall keep this land during his lifetime, and then divide it equally among his male heirs if he has any, as I want this property to remain in the family, and be known as Drewry Hill Farm. If he has no male heirs, then I desire that it shall be divided equally among the female heirs. Should the said John 0. Drewry, Jr., die without issue or without any children then living, the property herein given shall revert to my estate and it or its proceeds become a part of the general trust fund hereinafter provided for.
“Item VI. I give, devise and bequeath to my executor, the Raleigh Savings Bank & Trust Company, whom I hereby constitute and appoint trustee for that purpose, the sum of $120,000.00 for the uses and purposes set out in Paragraphs VII, VIII and IX, and upon the terms and conditions as follows:
“Said trustee shall hold and manage all of said property or the investments into which it may be converted, and receive any income from it, and out of said income to pay the cost and expenses of executing the trust, including any tax or assessment against the trust estate, and pay the net income to the beneficiaries as herein set out.
“Said trustee shall set apart out of the funds and securities in their hands the three separate trusts named in Items 7, 8, and 9.
“Said trustee shall have the right, whenever it sees fit to do so, in its discretion, to change any of the investments of my estate, whether made by me or it, and for that purpose may sell any real estate, stocks or securities or other property, at private or public sale without being required to get an order of court for that purpose. Said trustee shall have the right to convey the property so sold, and to receive the proceeds of sale and reinvest the same, such proceeds of sale and reinvestment to stand in the place of the property so disposed of, and to be held on the same trust as such property so sold and conveyed.
“It is my intention and purpose in constituting the executor of my estate as trustee for my wife Kittie Holt Drewry, my son John C. Drewry' Jr., and my grandson James Gr. Hanes, Jr., both separately and each one of the three, and afterwards, so far as the residue of my estate is concerned, collectively for the first two of them, and the survivor, that of the trust so created they shall only receive from the trustee
tbe net income of sucb trust, and tbat tbe legal and managing title shall at all times be in tbe trustee, and tbat tbeir interest shall be only a beneficial one, to receive from tbe trustee tbe net income, and tbat they shall not receive or be entitled to tbe control, management or custody of these trust funds so created.
“After tbe payment and delivery of the specific devises and bequests, tbe trustee shall bold tbe remainder and residue of my estate for tbe uses and trusts herein set forth, for tbe benefit of my wife, Kittie Holt Drewry, and my son John 0. Drewry, Jr., and tbe said trustee shall bold, manage and control tbe ownership of any such trust estate until tbe time for tbe termination of tbe same as set forth in Item XIII.
“Tbe net income from any moneys, property or investments held by my estate which is not designated specifically, shall be divided equally between my wife, Kittie Holt Drewry, and my son, John C. Drewry, Jr., during tbeir life or lives.
“In tbe event of tbe trustee hereinafter named declining or failing to act, then a successor trustee shall be appointed by tbe clerk of tbe Superior Court of Wake County in tbe manner prescribed by law for appointing successor trustees, it being my intention and purpose for tbe trustee at all times to bold tbe legal title, manage, control and direct this property, and after paying tbe expenses of tbe same to pay only tbe income to tbe beneficiaries under sucb trust.
“Item VII. It is my desire and I direct tbat tbe sum of $60,000.00 be set aside by my trustee or trustees, and invested by them for tbe benefit of my wife, Kittie Holt Drewry, during her entire lifetime, and tbe income from sucb amount to be paid over to her quarterly for her maintenance and support. Upon her death tbe sum of $60,000.00 shall become a part of tbe General Trust Fund of my estate, and be held and invested by said trustee, or trustees, until tbe final winding up of tbe same.
“Item VIII. It is my desire, and I so direct, tbat my trustee or trustees, herein named, shall set aside for tbe benefit of my grandson, James G. Hanes, Jr., tbe sum of $30,000.00, which amount shall be held in trust and invested by my trustee or trustees, and tbe income from sucb amount be paid over to him, or bis guardian quarterly for bis maintenance and support.
“When be attains tbe age of 35 years, this trust shall terminate and cease and tbe property so held in trust shall be conveyed by tbe trustee to him.
“If my grandson James G. Hanes, Jr., does not arrive at tbe age of 35 years or dies before attaining tbat age, leaving no issue, then I will and direct tbat bis interest and share in this trust fund shall cease and terminate, and it shall revert to and become a part of tbe residue of my estate and be divided as directed in tbat section of my will dividing sucb residue of my estate.
“Item IX. It is my desire, and I do direct tbat tbe Raleigb Savings Bank & Trust Company shall bold tbe $30,000.00 life insurance payable to tbem for tbe benefit of my son, Jobn C. Drewry, Jr., wbicb amount shall be held in trust and invested by my said trustee or trustees, and tbe income therefrom shall be paid to him or bis guardian quarterly.
“Item X. Should either my son, John C. Drewry, Jr., or my grandson, James G. Hanes, Jr., die before the final winding up of my estate, leaving surviving him a child or children, the income from such sum as shall have been provided for them, or either of them, and its accumulations, shall be used by said trustee or trustees, for such child or children, as is hereinbefore directed to be used for its or their parent. Should said John C. Drewry, Jr., or James G. Hanes, Jr., die before the final winding up of my estate, without leaving surviving heir or heirs born to them, then the said sum of $30,000.00 set aside for his benefit, and its accumulations, if any, shall become a part of the general fund of my estate, and be held by said trustee or trustees, as other property is held by them, until the final winding up of my estate. It is my desire and my executor or trustee is directed that the property herein given to my wife, son and grandson in Items II, III and IY, and the amounts set apart for their use and benefit in Items VII, VIII and IX in this will shall have precedence over all other gifts, bequests and trusts, whatsoever, and they shall be put in possession of such property or the same shall be set aside for their use and benefit before any other gifts, bequests or trusts shall be considered.
“Item XI. I give and bequeath to the Grand Lodge of North Carolina, Ancient, Free and Accepted Masons, the sum of $10,000.00 in trust, to be set aside by the Grand Lodge and known as the Drewry Memorial Grand Secretary’s Fund. . . .
“Item XII. I direct that my trustee, or trustees, shall pay out of the proceeds coming into their hands from my general estate to my sister-in-law, Mattie A. Mangum, the sum of $15.00 each month during her natural life.
“Item XIII. It is my will and desire, and I do direct that the trusts herein created, except that of the Drewry Memorial Grand Secretary’s Fund, shall remain in full force and effect as follows: (A) That of my wife, Kittie Holt Drewry, until her death; (B) That for John O. Drewry, Jr., until he reaches the age of 35 years; (C) That for James G. Hanes, Jr., until he reaches the age of 35 years; (D) The residue trust fund shall be kept alive until the two particular trust funds for Mrs. Kittie Holt Drewry and John C. Drewry, Jr., have each terminated.
“Item XX. It is my will and desire that all property undisposed of under this will and remaining in the hands of my trustee or trustees when said residue shall terminate, shall be divided into three equal parts,
two parts to go to my son, John C. Drewry, Jr., and one part to go to my grandson, James G. Hanes, Jr., tbeir children to inherit their parents’ share, if such parent be dead prior to that time. This devise in fee shall not take effect as to John C. Drewry, Jr., or pass any title in fee to him or his heirs until he attains the age of 35 years or dies before that time, leaving issue surviving him. Similarly the devise to my grandson James G. Hanes, Jr., and shall not take effect or pass any title in fee to him or his heirs until he arrives at the age of 35 years, or leaves issue surviving him, should he die before attaining that age.
“Should both John 0. Drewry, Jr., and James G. Hanes, Jr., die without leaving issue, it is my will and desire and I hereby give and bequeath to the Board of Trustees of the Drewry Memorial Grand Secretary’s Fund, the additional sum of $40,000.00, to augment the fund and be used for similar purposes as the gift theretofore made to them.
“The remainder of my estate, which shall then remain, shall be divided among my heirs at law, according to law.
“Item XXII. I hereby nominate, constitute and appoint as my executor and trustee to take charge of my property and manage my estate and pay over the specific legacies herein disposed of, and to invest and control the funds herein conveyed to them in trust, and to in all respects carry out the intents and purposes of this my last will and testament, the Raleigh Savings Bank & Trust Company of Raleigh.”
His Honor entered judgment as follows: “This cause coming on to be heard before his Honor, N. A. Sinclair, Judge presiding over the January, 1938, Term of the Superior Court of Make County, upon the complaint of the plaintiffs, the cross complaint and answer of Mary Hardy Drewry individually and as administratrix
c. t. a.
of John C. Drewry, deceased, and the answers of A. L. Burrington, Jr., guardian
ad litem
of Mary Holt Drewry and John C. Drewry, Jr., minors, James G. Hanes, Jr., and John H. Duncan, guardian
ad litem
of the unborn children of James G. Hanes, Jr., and the court having heard at length the arguments of Manning & Manning, attorneys for Mary Hardy Drewry, individually and as administratrix
c. t. a.
of John C. Drewry, deceased, M. T. Joyner, attorney for James G. Hanes, Jr., and A. L. Purrington, Jr., and John N. Duncan, guardians
ad litem,
who themselves presented arguments in favor of their wards:
“It is now therefore ordered, adjudged, and decreed :
“(a) That it is the duty of Joseph B. Cheshire and Carroll Weathers, trustees under the will of John C. Drewry, and they are hereby directed to convey the ‘Times Building,’ referred to in Item III of the will, to Mary Hardy Drewry individually as devised under the will of John C. Drewry, deceased, subject to the dower of Kittie Holt Drewry.
“(b) That the $30,000.00 trust fund in favor of John C. Drewry, deceased, is now terminated and the principal amount thereof, with any
accumulations, is payable to the guardian of Mary Holt Drewry and John C. Drewry, Jr., each of whom is entitled to one-half thereof.
“(c) That the residue trust has now terminated and said trustees are directed to divide the same in three equal parts, one part whereof shall be held by said trustees for the benefit of James G. Hanes, Jr., who is entitled to the income therefrom until he reaches the age of 35 years, and at that time, if he be living, to the principal thereof, and two-thirds of said residue trust shall be payable to the guardian of Mary Holt Drewry and John C. Drewry, Jr., each of whom shall be entitled to an equal share thereof. The trustees are directed to divide the securities comprising the residue trust in kind, so far as that be possible, and to sell such part of such securities as cannot be divided and to distribute the cash proceeds thereof to the parties entitled thereto. If the said James G. Hanes, Jr., should die before reaching the age of 35 years with issue surviving him the principal sum of his share of the residue trust fund shall be payable to such issue. If said James G. Hanes, Jr., should die before reaching the age of 35 years without issue surviving him the principal sum of his share of the residue trust fund shall be paid to the guardian or guardians of Mary Holt Drewry and John C. Drewry, Jr., or to them if they be then of age.
“(d) The trustees shall reserve from the share of James G. Hanes, Jr., in the residue trust fund the sum of $3,000.00, face value, of North Carolina Bonds to provide one-third of the monthly payment of $15.00 per month payable to Mattie A. Mangum and shall likewise reserve from the shares of Mary Holt Drewry and John C. Drewry, Jr., in the residue trust the sum of $6,000.00, face value, of North Carolina Bonds to provide two-thirds of the monthly payment of $15.00 per month payable to Mattie A. Mangum. The amount of income received from the $3,000.00 of bonds reserved from the share of James G. Hanes, Jr., in excess of $5.00 per month shall be paid to the trustees of James G. Hanes, Jr., and the amount of income from the $6,000.00 of bonds reserved from the shares of Mary Holt Drewry and John C. Drewry, Jr., in excess of $10.00 per month shall be paid to the guardian of Mary Holt Drewry and John C. Drewry, Jr. The said trustees are authorized, empowered and directed to encroach on the principal of said bonds, ratably, if that should be necessary to provide the $15.00 per month to be paid to Mattie A. Mangum during her life. Upon the death of Mattie A. Mangum, the $3,000.00 of bonds withheld from the share of James G. Hanes, Jr., in the residue trust shall be delivered to the trustees of James G. Hanes, Jr., or to him if he shall then have reached the age of 35 years and, in the event of his death before reaching said age, to those entitled to his share of the residue trust as set out in section (c) above, and the $6,000.00 of bonds withheld from the shares of Mary Holt Drewry and John C. Drewry, Jr., in the residue trust, or so much thereof
as may then remain, shall be delivered to tbe guardian of Mary Holt Drewry and John 0. Drewry, Jr., or to Mary Holt Drewry and John C. Drewry, Jr., if they shall have attained the age of 21 years. The right is reserved for the trustees to require such contributions from the guardian of Mary Holt Drewry, and John 0. Drewry, Jr., and from the trustees of James G. Hanes, Jr., from the funds coming into their hands pursuant to this judgment and under the terms of the will of John 0. Drewry, Sr., to provide the monthly payment of $15.00 per month to Mattie A. Mangum should the income from the bonds reserved by the trustees pursuant to this judgment or the principal thereof be insufficient, for any reason, to provide said monthly payments to the said Mattie A. Mangum.
“(e) That upon the dissent of Kittie Holt Drewry from the will of John 0. Drewry the $60,000.00 trust in her favor became a part of the residue trust.
“(f) That all income from the residue trust fund and the $30,000.00 insurance trust fund payable to John O. Drewry, received or accrued at the time of the death of John G. Drewry, became the property of Mary Hardy Drewry, administratrix c.
t. a.
of John O. Drewry, deceased, and is now payable to her, and the income from the residue trust received since the death of John O. Drewry on 12 September, 1937, shall be paid one-third to the trustees of James G. Hanes, Jr., and two-thirds to the guardian of Mary Holt Drewry and John O. Drewry, Jr.
“(g) That upon the death of John G. Drewry the title to the Drewry Hill Farm, referred to in Item Four of tbe will of John 0. Drewry, Sr., vested in John O. Drewry, Jr., son of John G. Drewry, deceased (the grandson of the testator), in fee simple.
“It is further considered, ordered and adjudged by the court that the orders heretofore made in this cause directing the payment of moneys to Mary Hardy Drewry, guardian of Mary Holt Drewry and John O. Drewry, Jr., for their maintenance and support pending the termination of this action, be and the same are hereby approved and confirmed by the court.
“The costs of this action shall be paid by the plaintiffs from the funds in their hands as trustees of the residue trust.”
A. L. Purrington, guardian
ad litem
of Mary Hardy Drewry and John G. Drewry, Jr., and James G. Hanes, Jr., assign as error, paragraph (a) of the judgment directing the plaintiffs, trustees, to convey the “Times Building” referred to in Item III of the will of John C. Drewry, Sr., to Mary Hardy Drewry, individually, subject to the dower of Kittie Holt Drewry. This assignment of error cannot be sustained.
When Mrs. Kittie Holt Drewry dissented from the will of her husband, John O. Drewry, Sr., the enjoyment of the expectant interest devised in the real estate mentioned in Item III of said will to John 0. Drewry,
Jr., was accelerated and be was entitled, under tbe will, to bave bad said real estate conveyed to bim by tbe trustees upon tbe filing of tbe dissent, and tbe fee passed to Mary Hardy Drewry by bis will. Tbis doctrine of acceleration rests upon tbe theory that tbe enjoyment of tbe expectant estate is postponed for tbe benefit of tbe preceding vested estate or interest, and upon tbe destruction of tbe preceding estate or interest before it regularly expired tbe ultimate taker came into tbe present enjoyment of tbe property. When a widow declines, by filing a dissent thereto, to take under tbe will, tbe decisions bold that tbe rights and interests of tbe parties must be considered and determined as if she bad died.
Young v. Harris,
176 N. C., 631.
In
Wilson v. Stafford,
60 N. C., 646, wherein property was given by will to tbe wife of tbe testator so long as she remained bis widow, with remainder over to bis children, and tbe widow dissented to tbe will, it is said: “Tbis was tbe dissent of tbe widow and her claiming her share of tbe property as if be (her husband) bad died intestate. Tbe effect of tbis upon tbe disposition made for bis children in tbe will must, after tbe assignment of her dower and tbe giving her an equal part with tbe children of tbe personal estate, be tbe same as if she bad died or married.”
In
University v. Borden,
132 N. C., 477, wherein real estate was devised to tbe wife of tbe testator for life with remainder over, and tbe widow dissented, tbis Court said: “Mrs. Eaircloth (the widow) having dissented from tbe will and claimed her dower in tbe realty and her distributive share in tbe personalty, we are of tbe opinion that there was an acceleration of tbe devises, tbe enjoyment of which under tbe will was postponed to tbe time of her death. Tbe will, in so far as provision was therein made for her, operates in tbe same manner, as to tbe time of enjoyment by those entitled after her death, as if she bad died prior to her husband.”
Mary Hardy Drewry assigns as error paragraph (g) of tbe judgment to tbe effect that upon tbe death of John C. Drewry, on 12 September, 1937, the title of the Drewry Hill Farm referred to in Item IY of tbe will of John C. Drewry, Sr., vested in fee simple in John 0. Drewry, Jr., son of John C. Drewry and grandson of tbe testator, and tbe failure of tbe court to bold that tbe fee in said farm vested in her as tbe sole beneficiary under tbe will of John C. Drewry. Tbis assignment of error cannot be sustained.
It is tbe contention of Mary Hardy Drewry that Item IY of tbe will of John C. Drewry, Sr., created a fee tail male in her husband, John C. Drewry, which was converted by C. S., 1734, into a fee simple title to tbe real estate therein described, and that title thereto passed to her under her husband’s will. Even if it be conceded that tbe words “male heirs” should, utider tbe statute, be read “heirs,” still tbe rule in
Shelley s case
would not operate to create a fee simple title in John C. Drewry to whom the land is given “to hold during his lifetime,” by reason of the super added words “they (the male heirs) to share and share alike” in the ultimate limitation after the preceding estate. The second syllabus of
Mills v. Thorne,
95 N. C., 362, which properly interprets the opinion, is as follows: “In this State, when an estate is settled on the ancestor, with remainder to his heirs, ‘equally to be divided among them,’ or ‘share and share alike,’ the addition of these words prevents the application of the rule in
Shelley’s case,
and the heirs take as purchasers.” See, also,
Ward v. Jones,
40 N. C., 400;
Gilmore v. Sellars,
145 N. C., 283;
Saar v. Schloss,
169 N. C., 228;
Welch v. Gibson,
193 N. C., 684.
A. L. Purrington, guardian
ad litem
of Mary Holt Drewry and John C. Drewry, Jr., assigns as error that portion of paragraph (c) of the judgment wherein the court holds that the residue trust has terminated. •This assignment of error cannot be sustained.
The termination of the residue trust is determined by Item XIII of the will of John 0. Drewry, Sr., wherein the following language is found “the residue trust fund shall be kept alive until the two particular trust funds for Mrs. Kittie Holt Drewry, and John C. Drewry, Jr., have each terminated.” The particular trust fund for Mrs. Kittie Holt Drewry terminated upon her dissent to the will. The particular trust fund for John C. Drewry, Jr., son of the testator, terminated upon his death on 12 September, 1937. That this was the intention of the testator appears from Item XX of the will wherein it is provided: “This devise in fee (having reference to the two-thirds of the residue trust given to John 0. Drewry, Jr., upon the termination of said trust) shall not take effect as to John C. Drewry, Jr., or pass any title to him or his heirs until he attains the age of 35 years or dies before that time, leaving issue surviving him.” John 0. Drewry, Jr., died on 12 September, 1937, before attaining the age of 35, leaving issue, and thereupon the “devise in fee” took effect in his issue, Mary Holt Drewry and John C. Drewry III. There is nothing in the will that indicates that John 0. Drewry, Sr., the testator, ever intended the residue trust to be continued after the death of his son, John C. Drewry, Jr., and in the absence of such expressed intention the trust terminated upon his death.
A. L. Purrington, guardian
ad litem
of Mary Holt Drewry and John C. Drewry, Jr., assigns as error that portion of paragraph (c) of the judgment to the effect that James G. Hanes, Jr., is entitled to have one-third of the residue trust held for his benefit until he reaches the age of 35 years and if he be living at said age to then have said one-third delivered to him, and the failure to hold that Mary Holt Drewry and John 0. Drewry, Jr., are entitled to the entire principal of the residue trust. This assignment of error cannot be sustained.
This bolding is in accord with, tbe provisions of tbe twentieth item of tbe will of Jobn 0. Drewry, Sr., wbicb reads: “Item XX. It is my will and desire tbat all property undisposed of under tbis will and remaining in tbe bands of my trustee or trustees wben said residue shall terminate, shall be divided into three equal parts, two parts to go to my son, John 0. Drewry, Jr., and one part to go to my grandson, James G. Hanes, Jr., their children to inherit their parents’ share, if such parent be dead prior to that time. This devise in fee shall not take effect as to John 0. Drewry, Jr., or pass any title in fee to him or his heirs xtntil he attains the age of 35 years or dies before that time, leaving issue surviving him. Similarly, the devise to my grandson James G. Hanes, Jr., and shall not take effect or pass any title in fee to him or his heirs until he arrives at the age of 35 years, or leaves issue surviving him, should he die before attaining that age.”
We are of the opinion that the construction placed upon the will of John 0. Drewry, Sr., by the trial judge, as indicated by the judgment, entered below, carries out the intention of the testator as gathered from the four corners of the will, modified by his widow’s dissent, and the judgment is, therefore, in all respects
Affirmed.
Seawell, J., took no part in the consideration or decision of this case.