The question involved: Where a testator devises his estate in trust for the net income thereof to be paid to certain named beneficiaries for life, such income payments to be continued to be paid to the bodily heirs of said named beneficiaries during their lives, and thereafter ultimately for the corpus of the estate to be distributed in accordance with the laws of the State of North Carolina, should the inheritance taxes presently due the State of North Carolina, be paid out of the corpus of the estate, without any adjustment as between the named beneficiaries entitled to receive said income during their natural lives *580and the contingent beneficiaries entitled to receive income and/or portions of the estate in the ultimate distribution of the same? We think the inheritance taxes should be paid out of the corpus of the estate, under the facts in this case.
In Mountain Park Institute v. Lovill, 198 N. C., 642 (645), citing authorities, it is said: “It is well settled that an executor upon whom the will casts the performance of a duty may, when he needs instruction, bring a suit in equity to obtain a construction of the will.” In re Estate of Mizzelle, ante, 367 (368).
Plaintiff further has the right to maintain this action under chapter 102, sec. 3, Public Laws of 1931, known as the “Uniform Declaratory Judgment Act.” Rountree v. Rountree, ante, 252.
The estate of R. L. Lambeth, who died testate on or about 19 December, 1936, was estimated to be worth $1,000,000. He bequeathed to his wife, Essie D. Lambeth, a few minor items of personal property, and then devised and bequeathed his entire estate, with this slight exception, to the Wachovia Bank & Trust Company in trust, to be held, preserved and managed for a long period of years, and to pay the income therefrom to his wife and children, including one grandchild which he had adopted, the said income of said estate after the death of those named beneficiaries to be continued to be paid to the bodily heirs of his said children, and after the death of such bodily heirs, for the estate then to be divided in accordance with the laws of the State of North Carolina. It is to be noted that there was a present transfer of the entire estate, with the minor exceptions, to the trustee, with a disposition of small sums to the named beneficiaries, the whole estate to be held for many years, and then subsequently to be divided out in accordance with the laws of North Carolina.
The defendants contend that “It was error for the court below to authorize and direct the inheritance taxes to be paid out of the corpus of the estate without any apportionment or proration against the estates of the named beneficiaries for life.” We cannot so hold, construing the will as a whole and paragraph 2 of item 3 of said will above set forth. The defendants have an able and carefully prepared brief and the reasoning is persuasive, though not convincing.
It is contended by plaintiff “That the will of the testator should be carried out, and that the payments as indicated by him should be made without any deductions, and in'order to carry out the will of the testator, the executor should be permitted to sell a portion of the corpus of the estate to pay the tax and continue the specified payments to the beneficiaries without regard to the payment of the tax and without any deductions whatsoever from the payments to be made to said beneficiaries.” From the statutes and will we think this contention of plaintiff correct.
The case of S. v. Bridgers, 161 N. C., 246, is in many respects similar to the present action.
*581Iil the opinion in Wellman v. Cleveland Trust Co. (107 Ohio, 267), 140 N. E., 104, construing a similar will and statute, is the following (at p. 108) : “It would seem, therefore, that other courts having under consideration inheritance tax statutes similar to ours have been able to interpret the indefinite and seemingly irreconcilable provisions thereof to clearly authorize the payment of the inheritance tax by the executor or trustee out of the corpus of the estate, and that, in the absence of any provision of the will, or of the trust agreement, requiring the reimbursing of the principal from income, no such reimbursement can be required by the executor or trustee, the theory being, in eases such as the one here under consideration, where the beneficiaries generally during the life of the trust receive the income in succession, that as between them the reduction of the principal will proportionately reduce the income to each beneficiary in succession, and that as to the remain-derman it was the intention that his estate should come to him diminished by the amount of the inheritance tax.” In re Tracy et al. (179 N. Y., 501), 72 N. E., 519; In re Diehl (88 N. J. Eq., 310), 102 Atl., 738.
~We think the position here taken is the logical, common-sense view. The judgment of the court below is
Affirmed.