In the construction of the will of Gwyn Edwards, plaintiff Wachovia Bank and Trust Company seeks the advice and instruction of the court. Under the facts of the case, we think it had this right.
“Ashe, J., in Allsbrook v. Reid, 89 N. C., p. 153, says: 'The former courts of equity entertained, and our Superior Courts still entertain applications for advice and instructions from executors and other, trustees, as to the discharge of trusts confided to them, and incidentally therefo, the construction and legal effect of the instrument by which they are created. But the courts of equity never exercised this advisory jurisdiction when the estate devised is a legal one, and the question as to construction is purely legal. The jurisdiction is incident to that over trusts. Where there is no trust or trustee to be directed, the court of equity never takes jurisdiction.’ Bank v. Alexander, 188 N. C., 670.” Ernul v. Ernul, 191 N. C., at p. 349. See Balsley v. Balsley, 116 N. C., p. 472.
The sole question involved in the controversy is the meaning of “income-yielding real estate,” as used in subsection (j) of the will of Gwyn Edwards.
The clause of the will which has given rise to this question is set forth above. The property in controversy is his “home place.”
In construing a will, the intention of the testator must be ascertained from the instrument as a whole. 10 S. E. Digest (N. O. Ed.), at p. 13232, sec. 470, citing many North Carolina cases.
Bull power and authority is expressly given to the trustee bank to sell and convert into cash the real estate owned jointly with others. The clear language of (j) is that he did not want his “income-yielding real estate” sold for the reason that in his opinion it would increase in value. He mentions the fact that a large part of his estate now consists of income-yielding real estate, recognizing that a part is not. The large part — the income-yielding — bannot be sold, the other can.
In Corse et al. v. Chapman et al., 47 N. E. Reporter (N. Y.), at p. 814, it is said: “The appellants further urge as to the property No. 80 Jane Street, in the city of New York, that there was an unlawful sus*122pension of the power of alienation by reason of the life estate given the testator’s widow therein. This life estate had nothing to do with the trusts created by the will, and was alienable at any time by the widow. Bailey v. Bailey, 97 N. Y., 470. . . . It is true that, while the testator gave an express power to sell his unimproved and unproductive real estate, he failed to provide in terms for a power to sell his productive real estate. It being essential to carry out the specific directions of the testator to divide his real estate into eight equal parts, it may well be that this duty, imposed upon the executors as trustees, carries with it the implied power to sell. We are of opinion that this is a proper construction of the will when read as a whole.”
In Foil v. Newsome, 138 N. C., at p. 123, it was said: “We are also of the opinion that the trustee has by implication the power to sell the land for the purpose of converting it into an income-producing property. The usual rule adopted by the courts is to find in language imposing upon an executor or trustee the duty of disposing of a mixed fund or property," an implied power to sell real estate to the end that he may discharge such duty,” citing cases. Powell v. Wood, 149 N. C., p. 235.
It appears from the admission in the pleadings and the evidence that the land in controversy has never produced any income. As "we construe the will, the trustee bank is given full power and authority by clear implication, to sell the nonincome-yielding real estate.
"We think the land, the “home place,” can be sold under the language of the will, and in the judgment of the court below we can find