The opinion
Disney,
concurring: I concur in the result. I think that the estate created by the testator for his children was vested, and that opinion should be placed upon that ground. The will recites, under “Item Fourth”, that the residue of the testator’s estate should be divided one-third to his wife “and two-thirds (%) thereof to my children and the living issue of any deceased child, per stirpes, to be equally divided among them, share and share alike.” It is true that it is subject to a trust, but the statement of the trust itself refers to “my children’s shares in my entire estate”; also refers to “the trust estate herein created for their benefit”; and “the trust estate herein created for the benefit of my children.” Later, we find the expression, referring to the children, “out of their respective shares”; also “said trustee will pay to each of my said children, out of his or her share of my estate, and provided he or she shall have arrived at the age of twenty-one (21) years, Fifty Thousand Dollars ($50,000) per annum.” Particularly, however, and immediately following the language last quoted, I note the language “and is directed to accumulate all the balance of said income for his or her respective use and benefit wntil he or she shall respectively attain the age of twenty-eight (%8) years, when each of them shall become entitled to and shall respectively receive from said Trustee his or her share of the corpus of my estate, together with the accumulated income aforesaid.” In my opinion, this language, taken together with the other expressions above quoted, must be construed as a statement as to when the devise, vested at the time of death, should be payable. Such an estate is vested and not contingent. Inasmuch as this matter arose in the State of North Carolina and inasmuch as the majority opinion recites petitioner as relying in part upon the fact of a decision by the Supreme Court of that state in Reynolds v. Reynolds, 208 N. C. 578 ; 182 S. E. 341 , as a determinative ruling, I note the opinion of that court in Hooker v. Bryan, 140 N. C. 402 ; 53 S. E. 130 , holding as follows:
Testatrix devised the residue of her real estate to H. “upon his becoming 21 years of age,” and lent the same to her sister until such event. She also lent to such sister her personal property, in trust for H. until he became 21 years of age. Held, that the clause “upon his becoming 21 years of age” should be construed merely to postpone the enjoyment of the estate, which was a remainder vesting in H. from the date of testatrix’s death.
In Vanderwarker’s Estate, 81 Minn. 197 ; 83 N. W. 538 , a legacy was provided in terms not dissimilar to those involved herein: Five thousand dollars was given, devised and bequeathed to executors in trust, for a grandchild of testator, to be loaned, the interest added to principal until the granddaughter arrived at the age of 21 years, at which time all interest should be paid to her, and the interest thereafter likewise paid to her “until she arrives at the age of thirty *62 years, when I direct my said executors to pay to my said granddaughter, * * * the said five thousand dollars.” Held, the granddaughter had a vested estate, which descended upon her death before receipt, to her heirs.