#### MANY ETHEL JACKSON, LEA JACKSON ROBERTS, YATES C. JACKSON, HATTIE J. KELLY, MARY JACKSON STOVALL, EMILY JACKSON HAWKINS and JOHNNIE M. CARSON v. CLEO BRYANT LANGLEY and JOHN BRYANT LANGLEY, a Minor, by His Duly Appointed Guardian ad Litem, R. E. BRANTLEY.

(Filed 10 October, 1951.)

*1.*Wills § 33c—

The law favors the early vesting of estates, and when a devise contains no limitation over in the event of the death of the devisee or legatee the estate will vest at the time of the death of testator in the absence of an express intention to the contrary.

2. Same — Where property is devised in trust for named beneficiary, he

takes equitable title vesting at time of testator’s death.

The fact that property is devised to a trustee for the benefit of the devisee, with provision that when the devisee attains the age of twenty-five years all the property of the estate or the remainder thereof or any substitution taken therefor in the course of the administration, should vest in him and be turned over to him, his heirs and assigns absolutely, *held*not to prevent the vesting of the estate in the beneficiary at the time of the death of testator, since the equitable estate vests as of that time and the provision for the vesting of the estate at the expiration of the trust being merely the ascertainment of the time the legal title should also vest in the beneficiary discharged of the trust.

3. Same: Wfils § 33d—

The fact that the trustee is given the right to use the income or the *corpus*of the trust for his own benefit in the event of certain enumerated emergencies does not prevent the vesting of the equitable title in the beneficiary as of the time of testator’s death, but merely makes it subject to be divested of such portion thereof as may be required to meet the authorized needs of the trustee, the trustee being in the same position as a life tenant with power to use the *corpus*or any part thereof for his own use.

4. Same: Descent and Distribution § 9a — Upon death of owner of vested equitable title, the property descends to his heirs under the canons of descent.

Testatrix left property in trust to her husband for the use of her son, with further provision that the son should take the property free from the trust upon attaining the age of twenty-five years. The son died before his twenty-fifth year and the father died thereafter leaving a child by a subsequent marriage. *Held:*The property vested in testatrix’ son as of the date of her death, and upon the death of the son without issue, the *244father took the property under the canons of descent, G.S. 29-1 (6), and upon the father’s death intestate the property passed to his child by the second marriage under G.S. 29-1 (1) subject to the dower rights of his surviving widow.

DEFENDANTS’ appeal from *Crisp, Special Judge,*January-Eebruary Term, 1951, of Polk.

This is an action instituted for the purpose of obtaining a declaratory judgment to determine the rights of the respective parties in and to an undivided interest in certain real property devised in the last will and testament of Bessie J. Langley, which will has been duly probated.

The facts are not in dispute, and may be summarily stated as follows:

1. John L. Jackson devised to his daughter, Bessie J. Langley, an undivided two-fifths interest in certain improved real estate in the Town of Tryon, North Carolina, which interest, she owned in fee simple at the time of her death.

2. Bessie J. Langley left no issue, surviving her except her son, John Alfred Langley, Jr., but was survived by several brothers and sisters.

3. On 3 June, 1938, she executed a will disposing of her estate in the following manner:

“Item III. I hereby devise and bequeath all of my property, real and personal, wheresoever situate, to my said Executor above named, to wit: my husband, his heirs and assigns, in trust, however, to hold, manage and conserve the same so as to produce an income and to apply the net income, after paying taxes and other necessary and proper expenses, to the support, maintenance and education of my son, John Alfred Langley, Jr., during his minority and until he reaches the age of 25 years, giving my said Trustee the authority, if it is necessary in providing for the education of our said son, to use the *corpus*or any part of my said estate, with the further right in my said trustee, in case he should need the income for himself for his own support, if on account of illness or disability he cannot support himself, to appropriate to his own use the income during the period of such disability and if necessary for this purpose to invade and use the *corpus*or any part thereof.

“When my said son reaches the age of 25 years all of said property or the remainder thereof, or any substitutes taken therefor in the course of the administration, as hereinafter provided, shall vest in and be turned over to my said son, John Alfred Langley, Jr., his heirs and assigns absolutely.

“My said trustee shall have the right whenever in his opinion it is advisable to sell the property and change the.form of the investment to do so, and may convey the property by good title to the purchaser free of limitations hereinabove set out, but he shall reinvest the proceeds in *245other realty or in Governmental or Municipal bonds and shall hold such proceeds under the same trust, with the same right of changing the form of the investment as from time to time may be necessary.”

4. After the death of Bessie J. Langley, John Alfred Langley, Jr., died intestate on 23 March, 1943, before he reached his 21st birthday, and his father, John Alfred Langley, Sr., died 2 April, 1949, intestate, and left surviving him his widow, Oleo Bryant Langley, and his minor son, John Bryant Langley, who is now about four years of age.

The court below held that under the provisions of the above will, the title to the two-fifths undivided interest of the testatrix in the property in question, did not vest in John Alfred Langley, Jr., upon the death of the testatrix, and never vested in him since he died before attaining the age of 25. Therefore, the court held that the undivided interest of Bessie J. Langley, in and to the store building in the Town of Tryon, is now owned by the brothers and sisters of the testatrix, and entered judgment accordingly.

Defendants appeal, assigning error.

*J. T. Arledge and J ames B. Dixon for defendants, appellants.*

*M. R. McOown and J. Lee Lavender for plaintiffs, appellees.*

DeNNY, J.

The sole question involved in this appeal is whether John Alfred Langley, Jr., took a vested or contingent remainder in his mother’s estate under the terms of her will. The court below held, in effect, that his interest in the estate was contingent upon his attaining the age of 25 years, and having died before attaining that age, the estate never vested in him. We do not concur in this construction or interpretation of the will.

The law favors the early vesting of estates and when a will, like the one under consideration, contains no limitation over in the event of the death of the devisee or legatee, in the absence of an express intention to the contrary, the estate will vest at the time of the death of the testator. *Robinson v. Robinson,*227 N.C. 155, 41 S.E. 2d 282; *Priddy & Co.*v. *Sanderford,*221 N.C. 422, 20 S.E. 2d 341; *Goddington v. Stone,*217 N.C. 714, 9 S.E. 2d 420; *Weill v. Weill,*212 N.C. 764, 194 S.E. 462; *Satterfield v. Stewart,*212 N.C. 743, 194 S.E. 459; *Mountain Park Institute v. Lovill,*198 N.C. 642, 153 S.E. 114; *Taylor v. Taylor,*174 N.C. 537, 94 S.E. 7; *Dunn v. Hines,*164 N.C. 113, 80 S.E. 410.

Moreover, the devise of property to a trustee for a designated period, to manage and control the property as to both *corpus*and income, does not prevent it from vesting in the beneficiary. Page on Wills, 3rd Ed., Vol. 3, Section 1261, at page 701; *Plitt v. Peppler,*167 Md. 252, 173 *246At. 35; *Hooker v. Bryan,*140 N.C. 402, 53 S.E. 130; *Coddington v. Stone, supra.*

It is likewise said in 69 O.J., Wills, Section 1674 (6), page 595: “The fact that the legal title and control of the property are given to another in trust does not prevent the beneficiary from having a vested interest, as there may be vested equitable, as well as vested legal, interests. In other words, in so far as concerns the question of whether an interest is vested or contingent, a gift to trustees for the benefit of another is the same as it would be if it had been made, without the intervention of trustees, directly to the ultimate beneficiary.” Also in 57 Am. Jur., Wills, Section 1226, page 809, in discussing this question, it is said: “The circumstance that a testamentary benefaction is given through the intervention of a trustee will, of course, preclude the immediate vesting in the beneficiary of the legal title to the subject matter of the gift, although such beneficiary may become vested with an equitable interest in fee upon the death of the testator.”

Furthermore, the mere fact that John Alfred Langley, Sr., the trustee, was given the right to use the income from or *corpus*of the trust estate for his own benefit in the event certain enumerated emergencies arose, did not in any way affect or delay the vesting of the estate in John Alfred Langley, Jr., to any greater extent than if the trustee had been given a life estate with the power to use the *corpus,*or any part thereof, for his own use.

The overwhelming weight of authority, including our own decisions, supports the view that in such cases the estate vests in the ultimate beneficiary upon the death of the testator, subject to be divested of such portion thereof as may be required to meet the authorized needs of the life tenant or other designated person. Page on Wills, 3rd Ed., Section 1264, page 705; *Perry v. Rhodes,*6 N.C. 140; *Brinson v. Wharton,*43 N.C. 80; *Williams v. Smith,*57 N.C. 254; *Myers v. Williams,*58 N.C. 362; *Lehnard v. Specht,*180 Ill. 208, 54 N.E. 315; *Braley v. Spragins,*221 Ala. 150, 128 So. 149; *Woodman v. Woodman,*89 Me. 128, 35 A. 1037; *Barker v. Ashley,*58 R.I. 243, 192 A. 304; *Buxton v. Noble,*146 Kan. 671, 73 Pac. 2d 43; *Downs v. Downs,*243 Wisc. 303, 9 N.W. 2d 822.

In the case of *Myers v. Williams, supra,*certain slaves were bequeathed to the father, as trustee, for the benefit of his children, but with the further provision that the father was not to be accountable to his children for the proceeds from the labor of the slaves until the children became 21 years of age. The Court said: “The terms of the bequest to the children . . . import a present gift, although the slaves are not to be allotted to them and put into their possession until they respectively come of age. In the meantime, the profits were to be applied toward their education, and the provision in favor of the father, that he was not to be accountable *247to bis children during tbeir minority, cannot bave tbe effect contended for by counsel for tbe plaintiffs of preventing tbe legacy from being vested.”

In *Fuller v. Fuller,*58 N.C. 223, tbe Court quoted witb approval from page 157 of Smith’s “Original View of Executory Interests,” as follows: “When tbe testator gives tbe whole of tbe intermediate income of real estate, or of personal estate, to tbe person to whom be devises or bequeaths such estate on tbe attainment of a certain age, but tbe attainment of that age does not form a part of tbe original description of tbe devisee or legatee, tbe interest is vested in right before that age, even though there is no prior distinct gift — no express gift, except at that age — it being considered that tbe testator merely intended to keep tbe devisee or legatee out of tbe possession or enjoyment until be should bave become better qualified to manage, or more likely, to take due care of tbe property.”

Tbe instant case in every essential part is on “all fours” witb *Coddington v. Stone, supra,*except for tbe provision giving John Alfred Langley, Sr., tbe trustee, a right to use tbe income or tbe *corpus*of tbe estate, or any part thereof, for himself in tbe event of certain emergencies. And this provision, as we bave heretofore pointed out, did not postpone tbe time of tbe vesting.

In tbe case of *Coddington v. Stone, supra, Sea-well, J.,*in an able and exhaustive opinion, discussed and considered tbe question now before us. C. 0. Goddington, Sr., devised a very large estate to a trustee for tbe benefit of bis three sons. The trustee was empowered to handle tbe estate until tbe testator’s youngest son should reach tbe age of 21 years, at which time tbe trustee was directed to divide tbe trust estate into three equal parts and turn, over one of such parts to each son, and tbe testator’s will provided that upon turning over tbe property, “each of my sons shall thereupon become tbe absolute owner thereof,” discharged of tbe trust. One of tbe Goddington children died before attaining tbe age of 21 years, and tbe Court held tbe estate vested at tbe death of tbe testator, in tbe three children, and that tbe deceased child having been vested witb a beneficial interest in one-third of tbe estate, such interest, upon bis own death, passed to bis surviving brothers under tbe laws of descent and distribution. *Hooker v. Bryan, supra; Myers v. Williams, supra; Brinson v. Wharton, supra; Perry v. Rhodes, supra; Cropley v. Cooper,*86 U.S. 167, 22 L. Ed. 109; *Plitt v. Peppler, supra; In re Estate of Aye,*155 Kan. 272, 124 Pac. 2d 482.

Tbe appellees contend, however, that tbe provision in tbe will of tbe testatrix, to tbe effect that when her son reached tbe age of 25 years, all of tbe property of tbe estate, or tbe remainder thereof, or any substitution taken therefor in tbe course of tbe administration, should vest in him and be turned over to him and bis heirs and assigns absolutely, shows *248clearly that tbe testatrix did not intend for tbe estate to vest until be attained tbe age of 25 years. We do not so bold, but construe this provision only as fixing tbe time when tbe legal and equitable title should vest in ber son, discharged of tbe trust. *Coddington v. Stone, supra.*

Under tbe construction contended for by tbe appellees, if John Alfred Langley, Jr., bad died just prior to attaining the age of 25 years and bad, in tbe meantime married and left a wife and child, or children, bis wife and child, or children, would take nothing, but tbe collateral heirs of tbe testatrix would be entitled to tbe estate. Such could not, in our opinion, have been tbe intention of tbe testatrix. *Cropley v. Cooper, supra; Coddington v. Stone, supra.*

Applying tbe law as laid down in tbe decisions and authorities cited herein, we bold that upon tbe death of John Alfred Langley, Jr., tbe two-fifths undivided interest in tbe real property in question, passed to John Alfred Langley, Sr., bis father, under our canons of descent, G.S. 29-1, Rule 6. It follows, therefore, that upon tbe death of John Alfred Langley, Sr., intestate, tbe property passed to bis son, John Bryant Langley under tbe canons of descent, G.S. 29-1, Rule 1, subject to tbe dower rights of Cleo Bryant Langley, tbe widow of John Alfred Langley, Sr.

Tbe judgment of tbe court below is

Reversed.