after stating the above. The question in respect to the devise of the lands in Moore county is not within the jurisdiction of the court in the present proceeding, and cannot be considered. The construction of a devise of lands is the subject matter of a suit at law, and as the estate passes directly to the devisee, the representative of the testator has no duty to be performed in respect to it and consequently cannot seek the advice of a court of equity in a matter in which contesting devisees are alone the claimants.
"A court of eqitily can only take jurisdiction,” in the words of Pearson, C. X, “where trusts are involved, or where devises and legacies are so blended and dependent on each other, as to make it necessary to construe the whole, in order to ascertain the legacies ; in which case the court, having a jurisdiction as to the legacies, takes jurisdiction over all other matters necessary for its exercise. Taylor v. Bond, Bush., Eq., 5.
So, as is said in a more recent case, “ the court will entertain an application from a trustee for advice as to the discharge of the trusts with which he is clothed, and as incident thereto, the construction and legal effect of the instrument by which they are created, when a case is presented in which the opinion can be made effective,” (Simpson v. Wallace, 83 N. C., 477,) and onty in such case.
The case cited in the argument to support the claim to jurisdiction (Robinson v. McIver, 63 N. C., 645,) was of the kind referred toby the Chief Justice, where there was a disposition of both real and personal estate in the same clause, and the construction involved the administration of the latter.
It is true the land is devised to the testatrix and others *461by her father, to “be sold -when it will be advisable to sell,” committing the determination of the proper time for doing so to the discretion of his executor, yet the discretion has not been exercised and the land remains unconverted still, and falls under the principle enunciated. If it liad been sold and the proceeds were in the hands of the executor, or other person, for a disposition under the will, then, the pres-net plaintiff, not having the fund in possession and with no present duty to perform in reference to it, cannot ask the advice of the court in advance.
“ We see no ground,” says the Chief Justice in discussing the subject in Taylor v. Bond, supra, “for the jurisdiction to give advice to an executor in regard to his future conduct or his future rights.”
We must therefore reverse the ruling of the court in assuming to put an interpretation upon this clause of the will, and determining the rights of parties under it, not because it is an erroneous interpretation, but for the reason that in this proceeding the question cannot be entertained. It is therefore to be left undecided as if not in this record.
2. We concur in the opinion that all the children of Ann V. Huske living at the time of the death of the testatrix, as well the two youngest born after the making of the will, as those born before, and none others, take the legacy given “to each of my sister, Mrs. Ann V. Huske’s, children,” excluding Clay, who died during the lifetime of the testatrix.
But this is not a case of lapse; the deceased child not being in esse at the death is not embraced in the words of the bequest to the others as a class. Petway v. Powell, 2 Dev. & Bat., 308; Knight v. Knight, 3 Jones Eq., 167; Shinn v. Motley, Ib., 490; Mason v. White, 8 Jones, 421.
3. The remaining inquiry is as to the property comprehended in the expression used in the concluding clause,and whether it is an absolute gift to the mother upon the facts *462stated, for her own use and benefit, or with a resulting trust to those who would be entitled in case of an intestacy.
It is manifest from the language of the testatrix, and to be inferred from the testimony of the mother, that parol directions had been previously given by the testatrix, to which she refers in annexing to the gift the words “ to be disposed of as I have already directed her.” A trust is thus clearly declared to he enforced, though, in parol, if it could be ascertained, as is held in Thompson v. Newlin, 6 Ired. Eq., 380, and was previously in Cook v. Redman, 2 Ired. Eq., 623; and even where no indication of the trust is found in the will itself and must be shown by intrinsic proof. But the donee to whom the property is given, and who is the depositary of the intention of the testatrix, is unable to recall the instructions that constitute the trust and declare the terms, and hence the donation is to a trustee upon a' trust which fails because its terms cannot be discovered, and which may be for the benefit of others, as it may be for her own.
“ There isno equitable principle more firmly established,” remarks a writer on the subject, “ than that where a voluntary disposition of property by deed or will is made to a person, or trustee, and the trust is not declared at all, or is ineffectually declared, or does not extend to the whole interest given to the trustee, or it fails wholly or in part by lapse or otherwise, the interest, so indisposed of, will be held by the trustee, not for his own benefit, but as a resulting trust for the donor himself, or for his heir at law or next of kin, according to the nature of the estate.” Hill on Trustees, 114.-To same- effect 2 Story Eq., § 1196 a.
The cásesicited in the argument against the ruling of His Honor fully sustain the doctrine thus announced. When in disposing of the residue the testatrix says: “I direct mj' Said trustee or trustees to pay and apply the same to such person or persons, for such uses and upon and for such trusts, interests and purposes, as I shall by my codicil to this my *463will, duly executed, direct and appoint,” and the deceased made no such codicil, though the heirs were excluded in other provisions of the will, it was held that the law must dispose of that held upon undeclared 'trusts.” Fitch v. Weber, 31 Eng., Ch. Rep., (6 Hare,) 145.
In passing upon a bequest to the Bishop of Durham, “ upon trust to pay her (the testatrix) debts and legacies, &c., and to dispose of the ultimate residue to such objects of benevolence and liberality, as the Bishop of Durham in his own discretion shall most approve of, he being appointed executor also, Lord Eldon thus lays down the rule : “ If he (the testator) says he gives in trust and stops there, meaning to make a codicil, or an addition to his will, or when he gives upon trusts which fail or are ineffectually expressed, in all those cases, the court has said, if upon the face of the will there is declaration plain, that the person to whom the property is given,is to take itin trust,and though the trust is not declared, or is ineffectually declared, or becomes incapable of taking effect, the party shall be a trustee, if not for those who were to take by the will, for those who take under the disposition of the law. Morice v. Bishop of Durham, 10 Vesey, Jr., 522.
But a case in its features closely resembling that before us, is that of the Mayor, Aldermen and Burgesses of Gloucester v. Wood, 25 Eng. Ch. Rep. (3 Hare) 131, the material facts of which are these:
James Wood in a codicil, dated July, 1835, uses this language : “In a codicile to my will I gave to the corporation of Gloucester 140,0001. In this, I wish that my executors would give 60,0001 more to them for the same purpose as I have mentioned,” &c. The testator died in April, 1836, and this and two other scripts of a prior date were propounded and proved, and no other testamentary paper- could be found. In neither of these was found any purpose expressed as to the disposal of the fund thus given. Upon a *464bill filed for the legacy by the corporation, the Vice-Chancellor refused to decree the payment, declaring that “no rule of law can be better settled than this; that unless the legatee intended to be benefited by a particular bequest can be ascertained, the mere intention that the residuary legatees of a testator should not take, will be inoperative,” and he declined in dismissing the bill to dismiss it without prejudice. In this case a previous codicil referred to as declaring the trust or purpose of the testator in making the pecuniary bequest, could not be found — as the verbal directions of the testatrix to her mother, in reference to the disposition of the gift to her, had faded from memory of the latter and were wholly lost.
If the gift was to the devisee or legatee to be disposed of as she-deemed proper, or followed bywords of equivalent import, the gift would be in terms absolute, as the power of disposition is an element of property and unrestrained, incidental to ownership; but it is otherwise, if the disposal is restricted.
Thus, when the testator gave all the remainder of his estate to his wife, “ to be divided among my children as she thinks proper,” and not with an unrestrained power of disposition, it was declared that the wife took no beneficial interest, but held in trust for the children between whom she had authority only to divide and distribute. Green v. Collins, 6 Ired., 139.
These authorities seem decisive against the claim of the mother to the ownership of the estate mentioned in the residuary clause, and we must reverse the ruling of the court in this behalf, and declare that there is a resulting trust for the heirs and next kin.
While we do not 8.gree with His Honor that there is a legacy lapsed by the death of Clay .Huske, we concur with him that all the undisposed of estate of the testatrix passes *465under the words, “ the remaining portion,” that is, such estate as is left after the previous disposition.
The inquiry as to the ademption of the bequests of the bank stock and county bonds, by their subsequent conversion into other interest-bearing securities, is not before us, there being no appeal from the ruling of the court in respect to that, and the parties submitting to the disposition directed of the substituted fund. We advert to it merely to avoid any inference of our acquiescence in the ruling in consequence of failing to notice the point.
A judgment may be drawn .in accordance with this opinion, and the costs will be paid out of the funds in the hands of the plaintiff, as administrator. Cause remanded.
Error. Judgment accordingly.