#### JOHN H. BURDEN v. LOUIS LIPSITZ.

(Filed 23 September, 1914.)

Wills — Estates—Contingent Limitations — Death of Devisee — Direct Beneficiaries — Interpretation of Statutes.

A devise of lands to B. in fee, “provided he has a child or children ; but if he has no child, then to him for life,” with limitation over to the testator’s heirs at law, carries to the devisee a fee-simple estate, defeasible upon his death without having had a child, the contingent event by which the estate is determined *524referring to the death of the devisee and holder of the prior estate unless a contrary intent clearly appears from the will itself .(Revisal, sec. 1581) ; and upon his death and nonhappening of the contingency named, the inheritance passes directly from the testator to the ultimate devisees. Hence, when the holder of the prior estate has acquired the interests therein of the children of the testator then living, he cannot convey a good title to the land; for prior to his death some of these heirs may have died leaving children, who, in that event, would take directly from the testator as his heirs at law.

Appeal by defendant from Connor, J., at April Term, 1914/ of Beetle.

Controversy submitted without action. The demand of plaintiff was for the purchase price of land which plaintiff had bargained to defendant, and defendant resisted payment on the ground that the title offered was defective. The Court being of opinion that the deed of John II. Burden, tendered to defendant, would convey a good title, entered judgment for the contract price, and defendant excepted and appealed. ■

Winston & Matthews for plaintiff.

Gilliam, & Davenport for defendant.

Hoke, J.

The title tendered was admitted to depend upon the construction of the will of John L. Burden, devising the lands covered by the deed to plaintiff, in terms as follows: “I give to my son, John Henry Burden, a fee-simple title to the tract of land on which I live, it being all the land I own, provided he has a child or children; but if he has no child, then I give him the said land during his life, and,to his widow if he leaves one surviving, during her widowhood, and then the said laud shall go in equal portions to my heirs at law as if I had made no will. And the said John H. Burden shall pay to each of my children who shall survive me, and the representatives of such as may he dead, $100. In the event the said John Henry has a child born to him, then the land to be absolutely his in fee simple”; and upon the following facts agreed upon by the parties as relevant to its correct interpretation: “John L. Burden owned the lands described in said contract. In his last will and *525testament as set out on page 6 of tbe record be devised said lands to John H. Burden upon tbe condition therein named. Tbe said John H. Burden duly qualified as executor of said estate under said will, and paid bis 'sisters tbe said sum of $100 as required in said will. Tbe said John L. Burden left surviving bim tbe following daughters, towit, Willie J. Cowand, C. E. Morris, Lurinda Pritchard, Lucy A. Pritchard, E. C. Cherry, and Sally E. Bazemore, and also a granddaughter, ^Mary E. Thomas, tbe only surviving child of a daughter who bad predeceased bim, and said John H. Burden. Tbe said daughters and granddaughter were bis only heirs at law. Afterwards, on 6 December, 1890, tbe said sisters and their husbands, in consideration of said $100 and tbe further sum of $100 more paid to each of them, conveyed all of their right, title, and interest in said lands to said John H. Burden. (See paragraph 5, page 2 of the record, and also Exhibit “B” on page 7 of the record.) On 4 July, 1892, for the same consideration, the said Mary E. Thomas conveyed her rights, title, and interest in said lands by deed described in paragraph 6 on page 3 of the record, and also in Exhibit “C” on page 9 of the record.

“Since the execution of the deed from the various sisters and their husbands to said John H. Burden, set'out in Exhibit “B” as aforesaid, Willie J. Cowand and Lurinda Pritchard have died, leaving children surviving them, and all of whom are living at the present time. , •

. “John Henry Burden, the plaintiff, is now a widower of the age of 62 years, and has never had a child born to him.”

Upon these facts, it has been repeatedly held, in this State, that the devise in question carries to the devisee, the present plaintiff, an estate in fee simple defeasible upon his death without “having had a child born to him.” Rees v. Williams, 164 N. C., 128, opinion by Associate Justice Allen, affirmed on a petition to rehear, 165 N. C., 201, opinion by Associate Justice Walker; Smith v. Lumber Co., 155 N. C., 389; Perrett v. Bird, 152 N. C., 220; Harrell v. Hagan, 147 N. C., 111. And these and other authorities are to the'effect that, under a correct interpretation of Revisal, sec. 1581, and, unless a contrary inten*526tion clearly appears from tbe will itself, tbe contingent event by wbicb an estate of tbis kind is determined must be referred, not to tbe death of tbe devisor, but to tbat of tbe devisee and bolder of tbe prior estate. Rees v. Williams, supra; Harrell v. Hagan, supra, and Buchanan v. Buchanan, 99 N. C., 308. As shown in tbe case of Sessoms v. Sessoms, 144 N. C., pp. 122-125, and Whitfield v. Garris, 134 N. C., 24, on tbe happening of tbe contingency, “tbe limitation over is not to be considered as a qualification of tbe first estate, but tbe same is a separate estate wbicb passes directly from tbe testator to tbe ultimate devisee,” and, being a contingent one, only those who fill tbe description at tbe time it comes into existence can take under tbe terms of tbe will.

In tbe present case tbe plaintiff bolds and tenders a deed for bis own interest, fortified by tbe deeds of tbe other children of tbe testator. These were bis heirs, and would fill tbe description at tbe time tbat be died, but, as tbe second estate does not arise till tbe death of tbe first taker, these grantors may not then be bis heirs, but, in case of their death before tbe first bolder, their children would become tbe heirs of tbe testator. As a matter of fact, two of the daughters of tbe testator have since died, leaving 'children who are now living, and these are at present among tbe heirs of tbe testator, and, as such, could claim an interest in tbe property on tbe present happening of tbe contingency.

Under tbe authorities cited, we must bold tbat tbe title offered is not a good one, and tbe judgment compelling payment of tbe purchase money must be reversed.

Reversed.