#### LAURA A. MILLER v. LAURA A. HARDING et al.

(Filed 14 October, 1914.)

1. Wills — Estates — Limitations Over — “Blood Relative” — Heirs—Rule in Shelley’s Case.

A devise of an estate for life with limitation over to G. “to bave and to bold during ber natural life and at ber death to ber nearest blood relative,” does not create a fee simple in tbe remainderman after tbe death of the first taker, for tbe term “nearest blood relative” is not equivalent to tbe 'word “heirs.” Tbe rule in Shelley’s case does not apply.

2. Estates for Life — Reinvestment—Findings of Fact — Appeal and Error.

In this Case tbe plaintiff contended that she took a fee-simple estate under tbe construction of a will devising lands to ber, and requested that should she be held to take a life estate, tbe lands be sold and reinvested for ber. Tbe lower court correctly bolding, upon tbe evidence, that the plaintiff took only a life estate, found as facts that ber present income was sufficient for ber support in ber condition of life, that ber income would be increased by tbe sale, etc., but that she would be the only one materially benefited, and refused to .order tbe lands sold; and on appeal it is held that tbe Supreme Court is bound by these findings, and no error is found.

Appeal by plaintiff from Whedbee, J., at March Term, 19Í4, of LENOIR.

This is a civil action triad upon facts agreed.

His Honor rendered judgment in favor of tbe defendants. Tbe plaintiff appealed.

Rouse & Land for plaintiff.

L. R. Parser, W. D. Pollock, Loftin & Dawson for defendants.

BeowN, J.

Tbis is an action brought to construe tbe will of Eiebard F. Green, as follows: “Item; I give and bequeath to my wife, Eliza B. Green, my bouse and lot in tbe town of Kinston in which I now reside, together with all my household and kitchen furniture and all other improvements thereunto belonging, to have and to hold during her natural life and at her death to go to my daughter, Lqura A. Green, to have and to hold during her natural life, and at her death to her nearest blood relative.”

The plaintiff also prays for a sale of the lot and the investment of the proceeds in ease the court should be of opinion that she has only a life estate therein. We are of opinion that his Honor was correct in holding that the plaintiff acquired only a life estate under the terms of the will.

The plaintiff contends that the use of the words “to have and .to hold during her natural life and at her death to her nearest blood relative” *54converts tbe estate into a fee under tbe rule in Shelley’s case, tbat tbe use of tbe term “nearest blood relative” is equivalent to tbe use of tbe word “beirs.”

Tbis contention cannot be maintained. Tbe word “beir” or “beirs” is not synonymous witb tbe term “nearest blood relative.” In its primary sense, tbe word “beir” means a person wbo inherits, or may by law inherit, from a decedent. Tbe word refers to a class of persons wbo take by succession from generation to generation, and means all wbo take generally without exception, as a class of inheritable persons.

In tbe rule in Shelley’s case tbe word “beirs” imports tbe beirs of a person generally or beirs of tbe body, and not any particular class of beirs to tbe exclusion of others. If tbe limitation over is to a particular beir or class of beirs, to tbe exclusion of beirs generally, tbe rule would not apply.

In tbe case of Ward v. Stowe, 17 N. C., 512, Judge Gaston says: “An beir is be wbo succeeds by descent to tbe inheritance of an ancestor, and in tbis, its appropriate sense, tbe word comprehends all beirs and tbe beirs of beirs, ad infinitum, as they are called by law, to tbe inheritance. Tbis succession is regulated by tbe canons of descent. According to one of these, tbe lineal descendants of any person deceased represent their ancestors, or stand in tbe place in which such ancestor would have stood if living at tbe time of tbe descent cast, and it is tbis taking by a right of representation which is termed a succession per stirpes, or by stocks, tbe branches taking tbe same share which their stock would have done.”

It is thus plain tbat tbe “nearest blood relative” of Laura A. Green would not necessarily include all of her beirs within tbe meaning of tbe rule in Shelley’s case. To illustrate: at her death she may leave a brother, and nephews and nieces, children of a deceased brother; in which case tbe surviving brother would be her “nearest blood relative”; but her nephews and nieces would, also, be equally her beirs to tbat part of her land which their father, if living, would have inherited. They would not take from their, father, however, but directly from Laura A. Green.

Upon tbe second branch of tbe case, in which tbe plaintiff asked tbat tbe land be sold and tbe proceeds invested, bis Honor made tbe following findings:

“First. Tbat tbe gross annual income to tbe plaintiff from tbe lands sought to be Sold by her in tbis action does not exceed $300.

“Second. Tbat by a sale of tbe said lands and by a proper reinvestment of tbe funds derived therefrom a gross annual income to tbe plaintiff of $900 could be obtained.

“Third. Tbat tbe plaintiff is now 64 years of age.

*55“Fourth. That, in addition to the income to the plaintiff from the lands sought to be sold in this action, she receives from other lands an annual net income of $300, which, when taken together with the income from the lands sought to be sold herein, is sufficient for her maintenance and support in keeping with her station in life, and that she has no other source of income.

“Fifth. That the interest of those who will take said land in remainder at the death of the plaintiff neither requires the sale of the said lands, or any part thereof, for the purpose of reinvestment as provided by law, nor would their interest be materially enhanced by it, but the only party whose interest either requires or would be naturally enhanced by such sale and reinvestment is the plaintiff.

“Now, therefore, on motion of counsel for the defendants, Faulkner, it is ordered, adjudged, and decreed that this action be and it is hereby dismissed, the court holding that the plaintiff has made no showing” which in law or equity justifies the sale of the said lands or any part thereof.”

It is unnecessary for us to decide whether the land can be sold against the wishes of a vested remainderman, at the instance of the life tenant, or whether there is any contingent interest involved, which can be represented before the Court. Hodges v. Lipscomb, 133 N. C., 201.

The findings of fact made by his Honor, based upon the evidence offered, are binding upon us, and we think under those findings his Honor very properly refused to enter a decree for the sale of the land.

Affirmed.