#### JOHN C. COX v. G. H. JERNIGAN. THOMPSON v. JERNIGAN.

(Filed 12 April, 1911.)

1. Wills — Devise—Trusts and Trustees — Intent—Life Estate — Remainder — Intestacy—Presumptions—Rule in Shelly’s Case.

A devise of lands in special trust that J., a grandson, be allowed tbe “use and enjoyment” thereof during his life, and in cáse he should die before attaining the age of 21 years without having living children, “then to the use and enjoyment of my living children and their heirs”: Held, (1) a devise of the fee simple will not be presumed, Revisal, 3138; (2) J. would take a life estate, with remainder to his living children, if any, and otherwise the title would then revert to the estate of the testator; (3) the presumption is.in favor of testacy, requiring no express devise to the living children of J.; (4) the rule in Shelly’s ease has no application.

2. Life Estates — Possession—Remainder—Limitations of Actions.

The possession of a life tenant, however long, can confer no title against the remaindermen.

Appeal by plaintiff from Whedbee, J., at February Term, 1911, of HakNEtt.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Glarrk.

N. A. Townsend for plaintiff.

J. C. Clifford for defendant.

Clark, C. J.

Sanders P. Cox died seized in fee of tbe premises. Tbe plaintiff, John C. Cox, having contracted to sell the premises to tbe defendant, tendered a deed and demanded tbe purchase money. Tbe defendant refused to accept tbe deed and pay tbe purchase money, on tbe ground that tbe plaintiff could not make a good title in fee.

Tbe plaintiff claims title under the following -item in tbe will of Sanders P. Cox: “Item 3. I give and devise to Wiley M. Cox, Charles P. Farmer, and 0. C. Darden and their heirs that tract of land (describing it) now owned by me, supposed to contain 430 acres, more or less, in special trust and confidence that they will allow my grandson, John C. Cox, the use *585and enjoyment of tbe same during bis life. In case be should die before be arrives at tbe age of 21 years and should not leave any living children at bis death, then to tbe use and enjoyment of all my living children and their heirs.”

Upon tbe facts agreed, as above, tbe judge held that tbe deed offered by tbe plaintiff did not convey a fee-simple title to tbe land, and that tbe defect would not be cured by tbe surviving trustee joining therein, and gave judgment accordingly.

In Hauser v. Craft, 134 N. C., 319, where tbe Court was called upon to construe an item in a will very similar to this, it was held that where there is a devise of property to A. for life, and should A. die without leaving children, then tbe property to be divided among tbe rest of tbe testator’s heirs, A. held a life estate, with a remainder to A.’s children, and that in such case tbe children would not be estopped by -a deed with covenant of warranty executed by tbe life tenant. That case presented almost tbe exact counterpart of the devise in Whitfield v. Garris, 134 N. C., 24, where .the property was devised in fee to A., with a provision that if he should die without leaving children or heirs of his body, then over. In such case it was held that A. took a fee defeasible on his dying without leaving children.

It is clear that the testator in the present case intended to devise only a life estate to the plaintiff, and hence a devise in fee simple will not be presumed under Revisal, 3138. In re Brooks’ Will, 125 N. C., 136. The rule in Shelly’s case has no application here. Byrd v. Gilliam, 121 N. C., 326; Hooker v. Montague, 123 N. C., 154.

The testator used apt words to indicate that he intended to give only a life estate to his grandson, and allowed him to use and occupy the land during his life. At the death of his grandson the property would vest in his children, and if he left none it would revert to the estate. There is no express devise to the children of John 0. Cox should he die leaving children, but in view of the presumption in favor of testacy and under a proper construction of the testator’s intention, the land by implication would descend to the children of John C. Cox.

*586It was also held in Hauser v. Craft, 134 N. C., 319; that possession by the grantees of a life tenant is not adverse to the remainderman during the life of the life tenant. A fotiori the possession of the life tenant, however long, can confer no title as against the remaindermen.

Affirmed.

Note. — Thompson v. Jernigan is affirmed on authority of the above case.