
    W. S. CLARK v. ANNIE L. WIMBERLY and JAMES PENDER, Trustee Under the Will of JOHN LAWRENCE.
    (Filed 23 February, 1916.)
    1. Wills — Trust Funds — life Interest — Contingent Interests — Estates.
    An estate devised to M. “during her natural life, free from the control of her husband, and at her death to be paid to such of her children as she may have surviving her, and to the issue of such of her children as may have died in her lifetime leaving issue,” the children to take per stirpes: Held, the children of M. held an estate 'dependent upon their being alive and filling the description at the time of the death of their mother, the life tenant; but if they died before then without issue, their interest became extinct, and if they so died leaving issue, these last became the owners of the interest of their deceased parent, but holding directly from the testator.
    
      2. Same.
    M. held by devise a life interest in a trust fund created under tbe will, with tbe remainder to ber children, J., L., and A., contingent upon their surviving ber, with further limitation over to their surviving children, to take per stirpes upon the nonhappening of the contingency stated. The life tenant and her children, J., L., and A., assigned “all our right, title, and interest in and to $800 in value of said fund” to secure a creditor of J., and J. and L. having predeceased their mother, the former leaving children surviving and the latter none, it is Held, by the terms of the assignment, the interest of A., having survived her mother, liable to the debt, is one-third of $800, the full amount specified, and not her entire interest in the funds; and this interpretation is not affected by a later clause in the writing of assignment, that the indebtedness be credited “with $800 if the interest of the parties hereto in the trust fund now-in the hands of the trustee shall amount to so much.”
    Appeal by defendant from Rountree, J., at November Term, 1915, of Edgecombe.
    Civil action, beard on case agreed.
    From tbe facts agreed upon it appeared tbat a trust fund of $1,800 is now in tbe bands of defendant James Pender, coming from Jobn Lawrence, deceased, and impressed by bis will witb tbe following trust: “To be held for tbe sole, separate, and exclusive use of my daughter, Martha L. Wimberly, during ber natural life, free from tbe control of ber said husband or any future husband, and, at ber death, to be paid to such of ber children as she may, leave surviving ber, and to tbe issue of such of ber children as may have died in her lifetime leaving issue, tbe issue to stand in tbe place of their deceased parent and to take such share as such parent would if living.” John Lawrence having died on 18 January, 1892, there were surviving tbe life tenant, Martha, and ber four children, John L., Annie, Lucy L., and Mr.s. Fields, and, on tbat date, John L. Wimberly being indebted in a large amount to plaintiff, be and bis mother, tbe life tenant, and two of bis sisters, Annie and Lucy, executed a contract assigning to plaintiff certain specified portions or interests in tbe trust fund to secure bis claim. Thereafter, on 11 October, 1893, John died, leaving two children. On 16 October, 1895, Lucy died without issue. On 25 June, 1915, tbe mother, tbe life tenant, died, leaving ber surviving ber two daughters, Mrs. Fields and Annie L., and tbe two children of John, only Annie having executed tbe contract declared on.
    Tbe question presented was whether, by correct construction of tbe contract, tbe interest of Annie L. in tbe entire trust fund was applicable to plaintiff’s claim or whether ber interest only in $800 of tbe fund was .so applicable.
    Tbe court being of opinion tbat tbe interest in tbe entire fund was bound, provided same did not exceed $800, so entered its judgment, and defendant Annie L. excepted and appealed.
    
      
      James Norfleet for plaintiff.
    
    
      James Pender and W. 0. Howard for defendant.
    
   Hoke, J.

Uy the terms of the will the children of Martha L. Wim-berly held an estate dependent upon their being alive and filling the description at the time of the death of their mother, the life tenant. If they died before that time without issue their interest became extinct; and if they so died leaving issue, these last became the owners of the interest of their deceased parent, but holding directly from the testator. Sessoms v. Sessoms, 144 N. C., 122; Latham v. Lumber Co., 139 N. C., 9; Bowen v. Hackney, 136 N. C., 187; Ebey v. Adams, 135 Ill., 80. This being true, and the contract in question having been executed by Martha, the life tenant, John, the son, and two of his sisters, Lucy and Annie, the defendant, and, it appearing that Lucy died before her mother without issue, that John died before the mother, leaving two children, who take and hold direct from the testator, and the life tenant having also died, the trust fund is now held and owned, one-third by Mrs. Fields, one-third by the children of John, and one-third by Annie, whose interest alone is subject to the terms of the contract, and, as heretofore stated, tbe question presented is whether this is one-third of the entire trust fund, not to exceed $800, or is the amount restricted to one-third of $800.

Recurring, then, to the terms of the contract, after reciting that a trust fund of $1,800 is held by a trustee under the terms of the will of John Lawrence, the portion of same more directly relevant proceeds as follows: “And whereas the said J. L. Wimberly is indebted to W. S. Clark in a large .sum, and desires, as do all the parties hereto, to assign and set over to the said W. S. Clark their interest in $800 of said fund now in the hands of said Staton, trustee, as security for the said debt due Clark: Now, therefore, know all men by these presents, that we, Martha L. Wimberly, J. L. Wimberly, Lucy L. Wimberly, and Annie L. Wim-berly, for and in consideration of the premises and of $1 in hand paid, do assign, transfer, and set over unto the said Clark all our right and interest in and to $800 in value of the .said fund now in the hands of the said Staton, trustee, together with such interest as may accrue upon said $800 from this date, at the rate of 8 per cent per annum, and do hereby authorize and empower the said Staton, trustee, to credit the said indebtedness of the said Clark with the interest which may accrue upon the said $800 during the lifetime of the said Martha L., and at her death to credit the said indebtedness of the said Clark with $800, if the interest of the parties hereto in the said trust fund now in the hands of said trustee shall amount to so much. The said Clark is to credit his indebtedness against the said J. L. Wimberly with whatever he may receive under and by virtue of this instrument.” And on careful perusal of tbe contract we are of opinion tbat only tbe amount, $800, is included therein, and tbat it may not be extended so as to include tbe entire trust fund. Tbis is undoubtedly tbe meaning of tbe recital, “desires to assign over tbeir interest in $800 of tbe fund,” and is tbe primary and more natural interpretation of tbe operative terms in tbe body of tbe contract, “do assign, transfer, and set over unto said Clark all our right, title, and interest in and to $800 in value of said fund.”

It is insisted for plaintiff tbat a different significance is given to these stipulations by tbe closing terms of tbe instrument, “to credit tbe indebtedness of said Clark (on an amount due from him to tbe trust fund) with $800, if tbe interest of tbe parties hereto in tbe said trust fund now in tbe bands of tbe trustee shall amount to so much”; but to our minds there is nothing in tbe closing terms of tbe contract necessarily inconsistent with tbe stipulations referred to. Tbe parties were evidently aware tbat tbe interest of any of tbe signatories might be withdrawn by tbe contingency attaching to tbeir ownership, and tbe terms should be referred to tbe interest of all tbe parties as events might determine and in tbat part of tbe trust fund designated and assigned in tbe former portion of tbe instrument.

From tbe circumstances of the transaction it should not be readily inferred tbat these parties, plaintiff or defendant, contemplated tbat Annie should become tbe sole paymaster of John’s indebtedness to tbe extent of her entire interest in tbe fund, and, if it be conceded tbat there is a repugnancy in tbe first and last clauses of tbe contract, we are of opinion tbat tbe former expressed tbe controlling purpose, and should be held determinative of its meaning. See 6 Ruling Case Law, article “Contracts,” sec. 236.

This will be certified, tbat judgment be entered restricting tbe liability of defendant Annie to one-third of $800 of tbe fund.

Reversed.  