#### WACHOVIA BANK & TRUST COMPANY and ZEB GRUBB LITTLE, Co-Executors and Co-Trustees Under the Will of ZEB VANCE GRUBB, v. ALMA LEE GRUBB, EDNA GRUBB LITTLE, BEULAH GRUBB FITZGERALD, R. C. FITZGERALD, EULA GRUBB BECK, RALPH BECK, THEO GRUBB, MIRIAM GRUBB, LILLIAN GRUBB, ZEB GRUBB LITTLE, Individually, JUNE CARTER LITTLE, SARAH JEAN HOLLAND LITTLE, FLORENCE HUDDLE, JOHN HUDDLE, R. C. FITZGERALD, JR., LOTTA FITZGERALD, ROBERT EDWIN FITZGERALD, MAY FITZGERALD, ROBERT EDWIN FITZGERALD, JR., THOMAS K. FITZGERALD, W. B. HUNT, Guardian for LOU GRUBB and ROBT. GRUBB, JR., Minors; LOU GRUBB, ROBERT GRUBB, JR., and the Unborn Issue of EDNA GRUBB LITTLE, BEULAH GRUBB FITZGERALD, EULA GRUBB BECK, THEO GRUBB, LOU GRUBB, JUNE CARTER LITTLE, ZEB GRUBB LITTLE and ROBERT GRUBB, JR., and HUBERT E. OLIVE, Guardian ad Litem for ROBERT EDWIN FITZGERALD, JR., THOMAS K. FITZGERALD, and the Unborn Issue of EDNA GRUBB LITTLE, BEULAH GRUBB FITZGERALD, EULA GRUBB BECK, THEO GRUBB, LOU GRUBB, JUNE CARTER LITTLE, ZEB GRUBB LITTLE and ROBERT GRUBB, JR.

(Filed 13 December, 1950.)

1. Wills § 38—

Tbe *corpus*of tbe estate remaining after payment of specific legacies, taxes, debts, and costs of the administration, is tbe residue, and while the *23amount cannot be determined until tbe administration is complete, it is tben to be determined as of tbe date of tbe testator’s death.

2. Wills § 34e — Beneficiaries of income held entitled thereto from date of testator’s death.

Tbe will in suit devised tbe residue of tbe estate in trust with provision that “tbe entire net income” be “paid monthly, or quarterly, after tbe expiration of three years from tbe date of my death” to named beneficiaries. *Held:*Tbe income from tbe trust for tbe first three years should not be added to tbe *corpus*of tbe estate, but the beneficiaries named are entitled thereto with payment merely postponed until three years after testator’s death, both under tbe general rule that tbe beneficiary of income is entitled thereto from the date of testator’s death, and also in accordance with testator’s intent as expressed in tbe instrument, since tbe word “entire” used in tbe bequest of the income imports all tbe income undiminished and unimpaired.

Appeal by petitioners and respondent Hubert E. Olive, guardian *ad litem,*from *Clement, J.,*September Term, 1950, DavidsoN.

Affirmed.

Petition for construction of will and for advice and direction in tbe administration of a testamentary trust.

On 31 August 1949, Zeb Yance Grubb of Davidson County died testate. He was tbe owner of a large estate located in Davidson County. He devised and bequeathed to petitioners, in trust, all tbe residue of bis estate, after tbe payment of debts, costs of administration, and specific legacies, to administer tbe same for a period of twenty years.

Tbe pertinent trust provision is as follows:

“Article XIY . . .

“(1) Tbe entire net income derived from my trust estate shall be paid monthly, or quarterly, after tbe expiration of three years from tbe date of my death and probate of this will, to tbe following(bis widow and other named beneficiaries.)

Tbe will also provided that no cash legacy other than tbe gifts to four named beneficiaries should be paid “within three years from the date of” bis death. While there was a codicil to tbe will, it is not material to tbe controversy here presented.

On 24 May 1950, testator’s widow, recipient of 52% of tbe income derived from tbe trust, notified petitioners, who are also executors, that she claimed her ratable part of tbe income derived from tbe residuum of tbe estate from and after *the*death of the testator. Certain legatees wto are to share in tbe *corpus*of tbe estate at tbe expiration ofi tbe trust contend that tbe income accruing during tbe three-ycar period next after tbe death of testator becomes a part of tbe *corpus*of tbe estate and is not distributable as income. Tbe petitioner's, faced with this controversy respecting tbe administration of the estate, filed tbe petition herein to obtain tbe advice of tbe court and directions as to tbe proper disposition *24of tbe net income of tbe trust estate accruing during tbe three years next after tbe death of testator.

Tbe court below adjudged that tbe beneficiaries of tbe trust estate are entitled to tbe entire net income of tbe trust accruing from and after tbe date of tbe death of tbe testator and directed tbe trustees to disburse tbe same in accord with tbe terms of tbe will. Tbe petitioners and Hubert E. Olive, guardian *ad litem*of certain infants who may share in tbe final distribution of tbe *corpus*of tbe trust, excepted and appealed.

*Hudson <& Hudson and Charles W. Mauzé for petitioner appellants.*

*Hubert H. Olive, guardian ad litem, in propria persona.*

*Linn*id? *Shuford and Don A. Walser for Alma Lee Grubb, appellee.*

BabNiiill, J.

Tbe residue of tbe testator’s estate was devised to petitioners in trust. Tbe residue of an estate comprehends all of tbe estate left by tbe testator at tbe time of bis death, subject to all deductions required by operation of law or by direction of tbe testator. Conversely stated, tbe residue is that part of tbe *corpus*of tbe estate left by tbe testator which remains after tbe payment of specific legacies, taxes, debts, and costs of administration. Webster’s New Int. Dic. (2d Ed.); Callaghan, Cyc. Law Dic. (2d Ed.); *Trust Co. v. Jones,*210 N.C. 339, 186 S.E. 335.

While tbe exact nature and *quantum*of tbe residue cannot be determined until the administration is complete, it is formed at tbe death of tbe testator and must be ascertained as of that date. *Trust Co. v. Jones, supra; Trust Co. v. Smith,*165 N.E. 657 (Mass.).

When such residue has been devised in trust with direction that tbe income therefrom shall be paid to named beneficiaries, does tbe income accruing during tbe three-year period next after tbe death of testator constitute a part of tbe *corpus*of tbe trust, or must it be accounted for as income and disbursed as such?

On this question there is some division of judicial opinion. One line of cases establishes what is known as tbe English rule under which such income must be added to and accounted for as part of tbe *corpus*of tbe estate. Tbe other line has formulated a rule, sometimes called tbe Massachusetts rule, which has been adopted by tbe authors of tbe Restatement °f tbe Law of Trusts as representative of tbe weight of current authority on tbe subjeoi.

Tbe latter rule is there stated as follows:

“Where a trust is created by will and by tbe terms of tbe trust tbe income is payable to a beneficiary for a designated period, tbe beneficiary is entitled to income from tbe date of death of tbe testator, unless it is otherwise provided in the will. Tbe rule We stated is applicable to *25trusts created by a specific devise or legacy, by a general pecuniary legacy, and by a residuary devise or bequest; and it is immaterial whether the same person is designated as executor and trustee.” Restatement of the Law of Trusts, sec. 234, p. 692; *Cannon v. Cannon,*225 N.C. 611, 36 S.E. 2d 17; 54 A.J. 92; Anno. 70 A.L.R. 636, 105 A.L.R. 1194, and 158 A.L.R. 441.

Under this rule those to whom the income is to be paid are entitled to the income from the date of the death of testator unless it is otherwise provided in the will.

The appellants concede that the general rule, as above quoted, prevails in this jurisdiction, *Cannon v. Cannon, supra,*and that nothing else appearing, all the income must be disbursed as directed in the will. But they stressfully contend that it is “otherwise provided in the will”; that the language “after the expiration of three years from the date of” testator’s death fixes the time the income shall begin to accrue to the use of the beneficiaries, as well as the time the payments to them are to begin. We agree that the will specifically designates the income which is to be paid to beneficiaries of the trust and that the language in the will is controlling, but we do not concur in their conclusions as to the effect of the language used by the testator.

The devise to the trustees took effect as of the date of the death of the testator. The trustees are to pay “the entire net income” derived from the trust estate to the named beneficiaries. “Entire” connotes “whole,” “total,” “all,” “undiminished,” “unimpaired,” “undivided.” Webster’s New Int. Dic. (2d Ed.). The payment of anything less than the entire net income accruing from the trust property from and after the date of the death of the testator would not suffice to meet the express directions of the testator. The beneficiaries must receive all, undiminished and unimpaired by any deduction, or by application, in whole or in part, to other purposes.

The language “after the expiration of three years from the date of my death” designates the time payments to the beneficiaries shall begin and merely postpones the enjoyment of the gift. *Priddy & Co. v. Sanderford,*221 N.C. 422, 20 S.E. 2d 341; *Carter v. Kempton, ante,*p. 1, and cases cited.

The language used by the testator is clear. His purpose and intention as expressed thereby are controlling. *Conrad v. Goss,*227 N.C. 470, 42 S.E. 2d 609; *Taylor v. Taylor,*228 N.C. 275, 45 S.E. 2d 368; *Schaeffer v. Haseltine,*228 N.C. 484, 46 S.E. 2d 463; *Trust Co. v. Shelton,*229 N.C. 150, 48 S.E. 2d 41; *Sutton v. Quinnerly,*231 N.C. 669.

The testator made a similar provision in respect of the payment of specific legacies. It would seem to be apparent that his intention was to give the executors ample time within which to settle the estate, free from *26the demands of devisees wbo might become importunate. In any event, the language used discloses his intent as to the *quantum*of the income which was to be paid to the beneficiaries. That intent must be effectuated.

So then, whether we apply the general rule prevailing in this jurisdiction or resort to the language used by the testator, the result is the same. The net income accruing from the trust property from and after the death of the testator must be delivered to the trustees, intact, to be paid by them as directed in Item XIY (1) of the will.

The appellees move to dismiss the appeal of the plaintiffs for that they are not the parties aggrieved. They have no partisan interest in the controversy, and they are fully protected by the judgment of the court below. There was no cause for them to appeal. Even so, the appeal of the guardian *ad litem*is sufficient to bring the case here, and their appeal does not complicate the record. The proceeding is *in rem*and constitutes a necessary expense of administration of the estate now in the hands of plaintiffs as executors. The costs must, therefore, he paid out of the funds of the estate. In the light of these facts, we may pass the motion without a ruling thereon.

The judgment of the court below is

Affirmed.