#### JOHN HAAR, Executor, et al. v. NATHAN SCHLOSS.

(Filed 24 May, 1915.)

Wills — Devisees—Life Estates — Rule in Shelley’s Case.

A devise of lands to testator’s wife for life, with provision, “after the expiration of the life estate ... I give, devise, and bequeath all of my estate, real and personal, to my heirs at law, and the heirs at law of” the wife, “to be equally divided between them, share and share alike”: Held, no estate of inheritance passed to the wife, and there was a failure of title as to one-half of the land, and the rule in Shelley’s case does not apply.

Appeal by plaintiff from 0. H. Allen, J., at February Term, 1915, of New Hamwer.

Action to recover the purchase price of a certain lot of land which formerly belonged to Philip Christ.

The defendant refused to pay for the land upon the ground that the plaintiffs could not convey him a good title.

The plaintiffs are John Haar, executor of Mary Christ, and Katherine Wegermann, the only heir at law of Philip Christ.

Philip Christ died in 1895, leaving a will, in which he devised the land in controversy to his wife, Mary Christ, for life, and then provided: “After the expiration of the life estate just hereinbefore in item second of this my last will and testament, I give, devise, and bequeath all of my estate, real and personal, to my heirs at law, and the heirs at law of the said Mary Christ, to be equally divided between them, share and share alike.”

Mary Christ died in 1912, leaving a will, in which she appointed the plaintiff Haar executor, and conferred upon him full power to sell said land and to execute a deed for the same. Thereafter the said Haar, executor, and the said Katherine Wegermann contracted to sell said land to the defendant, and they have tendered him a deed and have demanded payment of the purchase money, and the defendant has refused to accept the deed and to pay the purchase price, upon the ground that the plaintiffs cannot convey him a good title.

There was a judgment in favor of the defendant, and the plaintiffs excepted and appealed.

Bellamy & Bellamy for plaintiffs.

Herbert McClammy for defendant.

Alleit, J.

The will of Philip Christ passed only a life estate to the land in controversy to his wife, Mary Christ, unless the super added words in the third item, that “After the expiration of the life estate, I give, devise, and bequeath all my estate, real and personal, to my heirs *229at law and the heirs of the said Mary Christ,” bring the devise within the operation of the rule in Shelley's case.

There might be some ground for this contention but for the additional words appearing in the item, “to be equally divided between them, share and share alike.”

In Mills v. Thorne, 95 N. C., 364, which is affirmed in Gilmore v. Sellars, 145 N. C., 285, it was said that “In England, ever since the leading case of Jepson v. Wright, 2 Bligh, 1, it has been held that the words 'equally to be divided/ or 'share and share alike/ superadded to limitations to the heirs of the body, etc., do not prevent the application of the rule. But in this State it would seem that the superaddition of like words to the limitations to the heirs, or heirs of the body, or issue, do prevent the application of the rule”; and this has been the consistent ruling of this Court since the case of Ward v. Jones, 40 N. C., 400.

¥e are, therefore, of opinion there was no estate of inheritance in Mary Christ, and that there is therefore a failure of title as to one-half of the land in controversy.

The other question discussed in the briefs, as to whether the heirs at law of Mary Christ and of Philip Christ take per stirpes or per capita, is not now before us, and it cannot hereafter arise, if, as stated in the record, Mary Christ left one heir, there being only one heir of Philip Christ. '

Affirmed.