Tbe crux of tbe question posed by tbis appeal is whether, upon tbe above facts, Ella Bucbanan bad any vested and disposable interest in tbe principal of tbe trust fund which passed into tbe residuary estate upon her death without issue.
Without fully stating tbe arguments, tbe construction of tbe Berger will offered by the appellants in support of tbe affirmative presents tbe following rationale :
Under Article 5 of tbe will dealing with tbe disposition of tbe corpus of tbe trust fund, tbe proportionate part thereof tbe income of which was payable to Ella Bucbanan during her natural life, is transferred to tbe residuary estate upon her death without issue “to be and become a part of my residuary estate and be distributed as such.” Tbe residuary clause — Section 6, it is pointed out, creates an unqualified estate in tbe beneficiaries named therein, one of whom is Ella Bucbanan, in fee as to real estate, absolute as to personalty. Tbe conclusion is reached that since Ella Bucbanan is one of these named beneficiaries, distribution must be made to her “assigns,” meaning tbe successors to her estate by virtue of her own testamentary disposition. We do not understand tbe appellants to claim that tbe residuary clause of tbe Berger will directly bequeaths tbis item to them as “assigns” of her will. At any rate, tbe term “heirs and assigns” as used in tbe residuary clause of tbe Berger will must be understood as descriptive of tbe estate conveyed, and not as setting up an independent class of legatees. Fulton v. Waddell, 191 N. C., 688, 132 S. E., 669; Dicks v. Young, 181 N. C., 448, 107 S. E., 220; Ham v. Ham, 168 N. C., 492, 84 S. E., 840; see Threadgill v. Ingram, 23 N. C., 577.
The theory above suggested might have more plausibility if tbe fund in dispute bad come under tbe disposing provisions of the residuary clause in some other way, or at some other time, while Ella Bucbanan was still living to claim it; and, further, under conditions which did not render her succession wholly contingent.
Tbe answer to our problem lies in tbe nature of tbe contingency upon tbe happening of which tbe partial termination of tbe trust takes place, *478and tbe designated part of its principal, or corpus, is thrown into the residuary estate. ¡
That event is to be regarded as the termination of a particular estate, that of the trustees, and also the disappointment of an intervening estate, contingently limited to the issue, if any, of Ella Buchanan. The death of Ella, involved in the contingency, is not merely an event, but a condition to be consummated before the principal should lose its character as a particular legacy and become part of the residuary estate.
The chronology, if we may use that term, contemplated in the will, the time element, is a vital consideration in its construction. That Ella Buchanan could take an interest in the will virtually created by the contingency of her own death, involves a formidable legal paradox which appellants seem to circle but not surmount.
Ninety thousand dollars was separated from the estate and put into a trust fund, dealt with in particulars, and made the subject of an intervening contingent bequest. Both in point of law and under the expressed phraseology of the will it was not then a part of the residuary estate, the subject of disposition under Article 6. As a matter of law it could not be in the trust fund and under obligation to a particular legacy, however contingent, and in the residuary estate at the same time; and we find no suggestion of an intent that its inclusion in that category was, or could be, retroactive. At that time only was the residuary clause activated and clothed with testamentary authority with respect to the distribution of this fund. G. S., 41-4; Bowen v. Hackney, 136 N. C., 187, 48 S. E., 633; Burden v. Lipsitz, 166 N. C., 523, 86 S. E., 863; Harrell v. Hagan, 147 N. C., 111, 60 S. E., 909; Sain v. Baker, 128 N. C., 256, 38 S. E., 858; Sutton v. Quinerly, ante, 106. Or, to put it more bluntly, it came under the operation of the residuary clause at a time when Ella Buchanan must be, and was dead and unable to take.
It is true, of course, that the intervention of a trust does not necessarily postpone the title or prevent the vesting of an interest where the person who must ultimately take is certain; although it may postpone enjoyment. That was the situation in Coddington v. Stone, 217 N. C., 714, 719, 9 S. E. (2d), 420, but not here.. It is the contingent disposition of the corpus of the trust and the nature of that contingency with which we are dealing. And here the contingency renders the ultimate taker uncertain.
If we could dismiss the ever-haunting paradox to which we have referred, it still remains that the passing of the corpus of the trust fund into the residuary estate is itself a contingency depending upon the failure of issue, to whom it is first limited, and is, therefore, a contingency involving uncertainty of the beneficiaries, and no interest' could vest in Ella Buchanan under such contingency. Redden v. Toms, 211 *479N. C., 312, 190 S. E., 490; Deal v. Trust Co., 218 N. C., 483, 11 S. E. (2d), 464; Bond v. Bond, 194 N. C., 448, 139 S. E., 340; Scales v. Barringer, 192 N. C., 94, 133 S. E., 410; Mercer v. Downs, 191 N. C., 203, 131 S. E., 535; Richardson v. Richardson, 152 N. C., 705, 68 S. E., 217; Latham v. Lumber Co., 139 N. C., 9, 51 S. E., 780; Fearne on Remainders, Vol; 1, pp. 216, 217; 3 Page on Wills, pp. 729, 730; Id., 741, 742.
Tbe ease is not without its difficulties and tbe appellants’ side not without its plausibilities. For instance, if tbe three daughters named in the will had successively died without issue, we might arrive at the legally unwelcome condition of partial intestacy. The rule against intestacy, however, is merely one of construction to be applied where the phraseology is ambiguous or the intent is uncertain. A man is not required to visualize all changes and contingencies near or remote, trivial or-important, which might come about during a considerable period of time following his demise and meticulously provide against intestacy in order to make a valid will; nor may the Court, by the exercise of a hindsight better than his foresight, improve upon the testamentary disposition. Partial intestacy following the setting up and administration of a long-continuing active trust is not infrequent.
We think the court below reached the correct conclusion and the judgment is
Affirmed.