#### N. C. BEDDARD and wife, FRANCES, v. W. HARRINGTON and wife, PEARCY.

(Decided February 28, 1899).

Wills — Devise.

A devise to a wife during her life or widowhood, and after her death, remainder to a granddaughter in fee, terminates, so far as the widow is concerned, upon her re-marriage; but the estate of the granddaughter does not commence until the death of the first taker — the intermediate interest vests in the heir of the testator.

This is a Case Agheed, submitted, under section 56Y of Tbe Code, to tbe decision of Bryan> J., at March.Term, 1898, of tbe Superior Court of Pitt County, for construction of Frederick White’s will.

Tbe facts are as follows:

1. Frederick White died in Pitt County in 1892, leaving a last will and testament, duly probated in Pitt County Superior Court, tbe item of which, material to this case, is as follows:

“Item 2. I lend unto Francis White, my wife, twenty-five acres of land, including all my buildings, and the land to be laid off around the buildings, for and during her natural life or widowhood.” “And the twenty-five acres I have loaned my wife I give and bequeath unto my granddaughter, Pearcy Jones, daughter of Joseph Jones, to her and her heirs in fee-simple, after the death of my said wife.”

2. That Pearcy Beddard, defendant, is the Pearcy Jones spoken of in said will.

3. That Francis Beddard is the Frances White, widow of Frederick White, spoken of in said will.

4. That after the death of Frederick White, his widow, Frances, married one Moye, who died, and she afterwards married H. C. Beddard, plaintiff, and she is still living.

*525. That said Joseph Jones is guardian of said Pearcy Beddard and claims that as soon as Frances Beddard married, after the death of Frederick White, said Pearcy Beddard became owner of said land in which she is given an interest by said will.

It is agreed, if the Court shall be of opinion that said Pearcy became entitled to possession of said land when said Prances Beddard married, after the death of Frederick White, then judgment shall be rendered so declaring; but if the Court shall be of opinion that said Pearcy did not become entitled to possession of said land when Frances Beddard married, after the death of Frederick White, then the Court shall adjudge that Frances Beddard is entitled to possession of said land for her natural life, and execution shall issue to carry into effect said judgment.

The party against whom judgment is rendered shall pay the cost of this proceeding.

This the 7th day of March, 1898.

BOND & FLEMING,

Attorneys for Beddard and wife.

HARDING & HARDING,

F. Gr. James,

Attorneys for Defendants.

II. 0. Beddard, plaintiff above named, being duly sworn, says:

That this controversy is real, and the proceedings in good faith, to determine the rights of the parties, and this Court would have jurisdiction if it began by summons.

H. C. BeddaRD.

Sworn to and subscribed before me, March 8, 1898.

E. A. Moye,

Glerlc Superior Court.

*53And thereupon, the following judgment was rendered, to-wit:

JUDGMENT.

This canse, comingonto be heard, all parties being in Court, it is adjudged, ordered and decreed that Pearcy Beddard has no right to possession of land devised in will of Ered. K. White, until the death of Frances Beddard.

It is further ordered and adjudged that Frances Beddard is entitled to possession of said land, devised to her by said will, as long as she lives, and that plaintiff recover of de>-fendants the costs of this action. Let execution issue to carry out the provisions of this judgment.

HeNry R. BryaN,

Judge.

From this judgment the defendants appeal to the Supreme Court.

CASE.

This was a civil action tried before Bryan, Judge, at March Term, 1898, of Pitt Superior Court, upon a ease agreed.

Judgment was rendered as set out in the record, from which judgment the defendants appeal to the Supreme Court. The case agreed shows the contentions of the parties. Bond fixed at $25. Approved.

BoNd & FlemiNG,

Attorneys for plaintiff. HARDING & HARDING, Attorneys for Defendants.

*54 Messrs. Harding & Harding, for defendants (appellant).

Mr. J. L. Fleming, for plaintiffs.

Citric, J.

Tbe devise to tbe wife “during ber natural life or widowhood,” by tbe settled rules of construction, was determinable either upon ber death or re-marriage, otherwise tbe words “or widowhood” would be meaningless. 2 Redf. Wills, 219. Tbe widow, having re-married, can not maintain tbe action to recover possession. Tbe devise to tbe granddaughter, tbe defendant, “after tbe death of my said wife” can not take effect till that event, but that can not avail tbe plaintiff, who must recover on tbe strength of ber own title, not upon defects in that of tbe defendant. If there is no provision in tbe will (tbe whole of which is not before us) devising tbe realty, after tbe re-marriage of tbe widow, until tbe devise to tbe granddaughter is to take effect, i. e. at death of tbe widow, tbe realty would go to tbe heirs-at-law of tbe devisor for such interval, and tbe granddaughter would be entitled in that capacity as sole heir, unless there were others, in which event she would be tenant in common till tbe death of tbe widow, when she would become sole owner under tbe terms of the devise.

In any aspect, tbe plaintiff is not entitled to recover, and upon tbe case agreed, judgment should be entered in favor of tbe defendant.

Reversed.