The opinion
Eürches, J.,
dissenting: This action depends upon' the construction of the will of Mrs. A. E. Montague, mother of plaintiffs and defendant B. F. Montague. The third item of the will is as follows:
“That all my property, real, persona] and mixed, be converted into money and divided equally between my children, share and share alike, with this restriction however, that the share or shares falling to my daughters under this will be placed in the hands of my son B. F. Montague, as trustee for each of them, and that he shall hold the same for and during the natural life of each one respectively, and pay each of them the yearly interest or profit arising from said fund, during the life of each, and to their individual heirs at law after the death of each of my said daughters respectively.” “Item 4. I appoint my son, B. F. Montague, my sole executor to execute this will as he may deem best. ”
*160 So it depends upon the proper construction of these two ‘ ‘items, ” as it is not contended that there are any other parts of the will that can affect the construction of them.
Zollie Montague was one of the daughters of the testatrix, referred to in the third item of her will. Zollie Montague died in August, 1895, never having married, and without leaving issue of her body. Before she died, she made and executed a last will and testament, by which she willed a remainder of her estate to the Baptist Orphanage at Thomasville.
The plaintiffs are the brothers and sisters of the testatrix, Zollie Montague, and they contend that under the will of the mother, A. E. Montague, the said Zollie only took a life estate and had no interest to dispose of by her said will, and that the plaintiffs are entitled to same, under the will of the mother, A. E. Montague, or as her next of kin and distributees.
It will be observed that the estate is given to the daughter Zollie, and not to B. F. Montague as trustee. It was to be “divided equally between my children, share and share alike .... however, that the share or shares falling to my daughters under this will be placed in the hands of my son B. F. Montague, as trustee, for each of them.” The testatrix does not even give the custody of the estate to B. F. Montague, but provides that it “be placed” in his hands as trustee. So, if this had been real estate, the Statute of Uses and Trusts could not have operated to carry the legal estate to the cestui que trust, for the reason that there was no legal estate in the trustee. It is true that the Statute of Uses and Trusts has nothing to do with the matter under consideration, but it is used in the discussion to show that B. F. Montague had no legal estate in this *161 fund. This distinguishes this case from Payne v. Sale, 22 N. C., 455 , cited and i’elied upon for the plaintiffs. In that case, the estate was given to the trustee who held the legal estate, and their cestui que trust had the' equitable estate. And the remainder after the determination of the life estate was a legal and not an equitable estate, and the Eule in Shelley’s Case could not operate. The relations of B. F. Montague with regard to this fund were in the nature of a guardian or manager of the estate.
Seeing that- this estate was given to Zollie and that she was the legal owner of the same, the Eule in Shelley’s Case applies, as .is held in Ham v. Ham, 21 N. C., 598 , which seems to be the leading case on this subject; and Judge Battle, in republishing this volume of the Eeports says that this has been considered the settled law of the State ever since that decision. Ham v. Ham has been followed in Sanderlin v. Deford, 47 N. C., 74 , Worrell v. Vinson, 50 N. C., 91 , and in other cases. In Worrell v. Vinson, there was a trustee named, and that case is similar, in almost every respect, to the case now under consideration. And the court there held that the circumstance of a trustee being named made no difference; that if it were held that the party named as trustee had taken the legal estate, it was but the naked legal estate, and the legatee at once took the legal and equitable estate and became the absolute owner, under the doctrine of Ham v. Ham and Worrell v. Vinson, supra.
Under the light of these authorities I think we should affirm the judgment of the court below.