
    W. O. CARTER et al. v. JESSE SMITH et al.
    (Filed 8 April, 1936.)
    1. Parties A c — Where subject matter is in custody of the court, the court may allow person having an interest therein to intervene.
    Where final judgment adjudicating the rights of the parties has been rendered, but the subject matter of the action is still in the custody of the court, the court has the discretionary power to allow a person having an interest in the subject matter of the action, but who was not made a party thereto, to intervene and assert his rights, since the intervener, not being a party to the action, is not bound by the provisions of the judgment.
    S. Appeal and Error J a—
    The determination of a motion that a party be allowed to intervene in an action, upon a proper showing, is not reviewable, the motion being addressed to the discretion of the court.
    3. Descent and Distribution B c — Representatives of brothers of mother of illegitimate child held not entitled to inherit from him.
    The provisions of ch. 256, Public Laws of 1935, do not affect the distribution of an estate of a person dying prior to the enactment of the statute, the provision of the statute that it should apply to estates of such persons whose estates had not then been distributed being inoperative, and an illegitimate person dying prior to the enactment of the statute leaving only the brothers of his mother, or their legal representatives, him surviving, leaves no person him surviving entitled to inherit from him, and his property, both real and personal, vests immediately in the University of North Carolina under the Constitution and laws of this State.
    4. Consitutional Law E a—
    A statute enacted subsequent to intestate’s death may not change the law of descent so as to divest property rights which had vested in accordance with the law in effect at the time of the death of the intestate.
    Appeal by all parties, both plaintiffs and defendants, except the University of North Carolina, intervener, from Rousseau, J., at September Term, 1935, of Forsyth.
    Affirmed.
    This is a special proceeding, instituted before the clerk of the Superior Court of Forsyth County, on 12 December, 1932, for the purpose of having determined by the court which of the plaintiffs and defendants are heirs at law and next of kin of Ed L. Carter, deceased, and for the partition among his heirs at law of lands of which the said Ed L. Carter died seized and possessed, and for the distribution among his next of kin of the personal property which was owned by the said Ed L. Carter at his death.
    After pleadings had been filed, to wit: On 20 February, 1933, on the facts set out therein, an order was made in the proceeding by the clerk of the Superior Court that the lands described in the petition be sold by a commissioner appointed by the court for that purpose; and pursuant to said order the said lands were sold by the commissioner and the proceeds of the sales, to wit: The sum of $7,291.40, are now in the office of the clerk of the Suprior Court of Forsyth County, awaiting final judgment in the proceeding. In addition to this sum, there is now in the hands of the defendant administrator of Ed L. Carter, deceased, subject to the orders of the court, the sum of $9,000, which constitutes the personal estate of Ed L. Carter, deceased.
    Eursuant to an order of the clerk of the Superior Court of Forsyth County made on 20 February, 1933, the proceeding was transferred by said clerk to the civil issue docket of the Superior Court of Forsyth County for the trial by a jury of the issues of fact raised by the pleadings. At March Term, 1933, of said court, issues involving the conflicting contentions of the plaintiffs and defendants, as to which of the said parties to the proceeding are heirs at law and next of kin of Ed L. Carter, deceased, were submitted to and answered by the jury. Judgment was rendered at said March Term, 1933, of the court, in accordance with the verdict, determining that certain of the plaintiffs and certain of the defendants are heirs at law and next of kin of Ed L. Carter, deceased, and as such are entitled to share in the division of the proceeds of the sales of the lands owned by the said Ed L. Carter, at his death, and in the distribution of the personal property owned by the said Ed L. Carter at his death.
    After the judgment in this proceeding was rendered at March Term, '1933, of the Superior Court of Forsyth County, and before the proceeds of the sales of the lands owned by Ed L. Carter at his death had been divided, or the personal property owned by the said Ed L. Carter, at his death, had been distributed in accordance with said judgment, to wit: On 29 April, 1933, the University of North Carolina filed a motion in writing in the proceeding, praying that it be allowed to intervene in the proceeding, for the purpose of setting up its claims, under the Constitution and laws of this State, to the property, both real and personal, owned by Ed L. Carter, at his death. This motion was heard and allowed by the court at its October Term, 1933.
    The University of North Carolina thereupon intervened in the proceeding and filed its petition. On the facts alleged in its petition, it prayed that the judgment rendered at March Term, 1933, of the court be set aside and vacated, and that it be adjudged by the court that the University of North Carolina is the owner of all the property, real and personal, which was owned by Ed L. Carter at the date of his death, subject only to the payment of his debts, if any, and the costs and expenses incurred in administering his estate. Answers to the petition were duly filed by both plaintiffs' and defendants, who prayed that on the facts alleged in said answers the petition be dismissed.
    
      The proceeding was heard on the petition of the University of North Carolina, as intervener, and the answers of the plaintiffs and defendants, at September Term, 1935, of the Superior Court of Eorsyth County. At this hearing a statement in writing of facts agreed by the parties was filed with the court. The facts agreed by the parties are substantially as follows:
    1. Ed L. Carter died in Eorsyth County, North Carolina, intestate, on 20 August, 1932.
    The plaintiff R. L. Hastings has been duly appointed and has duly qualified as administrator of Ed L. Carter, deceased.
    At his death the said Ed L. Carter was seized in fee and in possession of the lands described in the petition. These lands have been sold pursuant to an order made in this proceeding by the clerk of the Superior Court of Eorsyth County. The proceeds of the sale of said lands, to wit: The sum of $7,291.40, are now in the office of the clerk of the Superior Court of Eorsyth County, and are subject to the final judgment in this proceeding.
    At his death the said Ed L. Carter was the owner of considerable personal property, which has been sold by his administrator. The proceeds of the sale of said personal property, together with the amount of a deposit in the Wachovia Bank and Trust Company of Winston-Salem, N. C., which has been paid to the said administrator, amount to the sum of $9,000. This sum is now held by the administrator of Ed L. Carter, deceased, and is subject to the final judgment in this proceeding.
    The deposit in the Wachovia Bank and Trust Company, amounting' to the sum of $2,835.07, was to the credit of “Ed Carter or Bettie Carter.” Bettie Carter was the mother of Ed Carter. She died intestate before his death. No administrator has been appointed for Bettie Carter. The deposits were made during the joint lives of Bettie Carter and Ed Carter, and were made up by money earned by their joint labors.
    2. Ed L. Carter was the only child of Bettie Carter, who died in Eorsyth County, North Carolina, intestate, about seventeen years before his death. He was the illegitimate son of Bettie Carter. He never married.
    Bettie Carter, mother of Ed L. Carter, had two brothers, William Carter and Frank Carter, both of whom died prior to her death. Each of the brothers of the said Bettie Carter left surviving him children or grandchildren. The plaintiffs and the defendants are children or grandchildren or descendants of William Carter or of Frank Carter. Each of the defendants has been duly served with summons in this proceeding.
    This proceeding was instituted on 12 December, 1932. At March Term, 1933, of the Superior Court of Forsyth County, judgment was rendered in the proceeding that certain named plaintiffs and defendants are the heirs at law and next of kin of Ed L. Carter, deceased. The University of North Carolina was not a party to the proceeding at the time said judgment was rendered. After the said judgment was rendered, the University of North Carolina, on its motion, was allowed to intervene in the proceeding, and to file its petition praying that on the facts alleged therein, the judgment at March Term, 1933, of the Superior Court of Eorsyth County he set aside and vacated, and that it be adjudged by the court that the University of North Carolina, under the Constitution and laws of this State, is the owner of all the property, real and personal, which was owned by Ed. L. Carter at his death, subject only to the payment of his debts, if any, and the costs and expenses incurred in administering his estate.
    On the facts agreed, it was ordered, considered, and adjudged by the court that the University of North Carolina is entitled to all the funds now in the hands of the administrator of Ed L. Carter, deceased, and to all the funds now in the custody of the clerk of the Superior Court of Eorsyth County, as proceeds of the sale of lands owned by the said Ed L. Carter at his death.
    It was further ordered by the court “that E. L. Hastings, administrator as aforesaid, shall, immediately after paying the costs and expenses of administration and all debts and expenses of the estate of Ed L. Carter, deceased, pay the remainder of said funds to the University of North Carolina, and that the clerk of the Superior Court of Eorsyth County shall likewise pay to the University of North Carolina the funds held by him.”
    All the parties to the proceeding, except the University of North Carolina, excepted to the judgment and appealed to the Supreme Court of North Carolina, assigning errors in the judgment.
    
      Dlledge & Wells, Gold, McAnally & Gold, and Hastings ■& Booe for appellants.
    
    
      Parrish & Deal for University of North Carolina.
    
   Connor, J.

There was no error in the order made in this proceeding by the judge of the Superior Court of Eorsyth County at October Term, 1933, of said court, allowing the University of North Carolina to intervene in the proceeding in accordance with its motion made after the judgment had been rendered in the proceeding at March Term, 1933, of said court. The intervener was not a party to the proceeding at the time the judgment was rendered, and therefore was not bound by its provisions. On the facts alleged in its motion, which was in writing, the intervener had an interest not only in the controversy which was involved in the proceeding, but also in its subject matter. The controversy between tbe plaintiff and defendants had been determined by tbe judgment, but tbe subject matter of tbe controversy was in tbe custody of tbe court, or subject to its control, at tbe time tbe motion was made. "Whether or not, on these facts, tbe University of North Carolina should be allowed to intervene in tbe proceeding in accordance with its motion was a matter resting in tbe sound discretion of tbe court, and its order allowing tbe motion is for' that reason not subject to review by this Court. Bank v. Lewis, 203 N. C., 644, 166 S. E., 800. We think, however, that in tbe instant case tbe court properly exercised its discretion when it allowed tbe University of North Carolina to intervene in tbe proceeding, and to assert therein its claim, under tbe Constitution and laws of this State, to tbe property,- real and personal, which was owned by Ed L. Carter at bis death.

At bis death on 20 August, 1932, Ed L. Carter left surviving him no person who was entitled to bis property, real or personal, as bis heir at law or as bis next of kin. He died intestate. He bad never married. He was tbe only child of Bettie Carter, who- bad predeceased him. He was her illegitimate son. Under tbe Constitution and laws of this State, 'in force at tbe death of Ed L. Carter, bis property, both real and personal, subject only to tbe claims of bis creditors, if any, vested immediately in tbe University of North Carolina (see In re Neal, 182 N. C., 405, 109 S. E., 70), and could not be divested by a statute enacted by tbe General Assembly subsequent to bis death. Chapter 256, Public Laws of North Carolina, 1935, which was ratified on 29 April, 1935, is not applicable to tbe instant case, notwithstanding tbe provisions of section 3 of tbe statute.

There is no error in tbe judgment of which tbe plaintiffs or tbe defendants can complain. On tbe facts agreed, neither tbe plaintiffs nor the defendants have any right, title, or interest in tbe property, real or personal, which was owned by Ed L. Carter at bis death. Tbe judgment must be and is

Affirmed.  