#### J. H. JERNIGAN et al. v. L. B. EVANS et al.

(Filed 29 September, 1920.)

1. Estates — Husband and Wife — Bife Estates — Entireties—Wills.

A life estate beld by tbe testator’s son and bis wife under a devise made to them jointly, bolds tbe estate in entirety.

2. Wills — Estates—Remainders—Contingencies—Rowers of Sale — Deeds and Conveyances.

A testator devised lands to bis two sons, J. L. and J. H., for life," and by codicil, added tbe name of tbe wife, upon tbe same conditions and limitations, to be equally divided, tben to tbeir children, and upon tbe contingency tbat should one of them die without leaving a child, tben to tbe other son of tbe testator for life, and at bis death to bis children, and to revert to tbe testator’s general heirs should tbe grandchildren die without issue; but a conveyance by tbe grandchildren would “be good” in tbe case of tbeir death without children. Both J. L. and J. H., tbe two sons, being dead, tbe children of tbe latter and tbe grandchildren of tbe testator, together with their mother, would convey tbe purchaser a good fee-simple title, there being no possibility of future children of tbe marriage of J. H.; and tbat tbe clause in tbe will under which tbe conveyance was made would prevent tbe land going over under tbe prior clause of tbe will.

Appeal from Devin, J., at April Term, 1920, of Beetie.

Plaintiffs agreed to sell certain land-to tbe defendants, who refused to comply with tbe contract because, as they alleged, tbe title conveyed *88to them by the deed tendered is defective. If the title is good and indefeasible, they are ready and willing to pay the purchase money and take the deed.

The question as to the title arises upon the construction of the second clause of Mrs. Sallie D. Holley’s will, dated 25 November, 1885, and the codicil to the will, dated 15 March, 1892, which are as follows:

“2nd. I loan to my two sons, D. L. Jernigan and John H. Jernigan, during their lives, all the real estate given me by my late husband, Augustus Holley, 'to be equally divided between them in value, and after their death I give it to their children in fee simple, except in case of their death without issue, and in case of the death of either J. L. Jerni-gan or Jno. H. Jernigan without a living child at his death, I loan the share of the real estate of the one dying first to his surviving brother during his life, and after his death I give it to his children, and in the case of the death of my grandchildren without children, then the real estate so devised and given to them shall revert or come back to my heirs at law; but in the case the real estate so devised or given to my grandchildren shall be sold by them, the title conveyed by them to the purchaser shall be good in case of their death without children. In the division of my real estate, I desire and direct that Ashland, and the place known as Gaskins, be allotted to H. L. Jernigan as a part of his half interest, and that the Hermitage be allotted to Jno. H. Jernigan as a part of his half interest. The fishery known as the Hermitage fishery I loan to them jointly, to be enjoyed by them equally and alike, and after their death I give it to their children in the manner the other real estate is given.”

“I add the following codicil to my will': The share of my estate which in my will I have given to my son John H. Jernigan, I give instead to the said John H. and his wife, Lizzie B. But I impose upon the estate in the hands of the two exactly the same conditions and limitations which I imposed on the same in the hands of John H. Jernigan alone. The'only change I mean to make by the codicil is to add Lizzie B. Jernigan’s name to that of John'H. Jernigan whenever in said will property is given to him.”

J. H. Jernigan bought the interest, other than his own, in the Hermitage farm and fishery, and has died since this proceeding was begun.

The deed which was tendered to the plaintiffs is signed by L. B. Evans, Francis Gilliam, John H. Jernigan, Elizabeth B. Jernigan, Alexander Bell and wife, Elizabeth J. Bell, the latter, who was Elizabeth Jernigan, being the only child of John H. and Elizabeth B. Jernigan. It is alleged in the complaint that D. L. Jernigan died on 28 July, 1893, and left surviving him a son, George 0. Jernigan, and a daughter, Sallie Jernigan Mitchell, wife of J. R. Mitchell, who claim a contingent inter*89est in tbe land, under tbe will of Mrs. Holley, as ber beirs, and wbo bave been made parties by publication, tbey being nonresidents, living in Washington, D. C. Sallie J. Mitcbell is tbe nonresident guardian of George Jernigan, wbo is non compos mentis, S. W. Kenney bas been appointed guardian ad litem of James J. Mitcbell, Dennie Lewis Mitcbell, wbo are minors, and George 0. Jernigan.

Tbe court being of tbe opinion tbat plaintiffs eannot convey a good and indefeasible title to tbe defendants, L. B. Evans and Francis Gilliam, dismissed tbeir action and taxed tbe costs against plaintiffs, wbo excepted to tbe judgment and appealed.

Wm. Leigh Williams for plaintiffs.

Winston & Matthews for defendant.

'WaxKER, J.,

after stating tbe case: We do not understand wby tbe plaintiffs cannot pass a good title to tbe defendants Evans and Gilliam to tbe land described in tbe contract. By tbe will and codicil, tbe land in question was devised to J. H. Jernigan and bis wife Lizzie B., for tbeir lives, and tbey beld by entireties, altbougb tbey bad but life estates. Todd v. Zachary, 45 N. C., 286; Jones v. Potter, 89 N. C., 220; Simonton v. Cornelius, 98 N. C., 433. Tbey beld tbe land just as did J. H. Jernigan by tbe terms of tbe original will, before tbe codicil •was’added. J. H. Jernigan is dead, and, of course, be and bis wife can bave no more children. Tbe deed of Mrs. Jenigan, and ber daughter, Mrs. Bell, and ber son-in-law, Alexander H. Bell, will pass a good title, unless tbeir estate is affected by tbe clause devising tbe land over to testatrix’s beirs provided Mrs. Bell, ber grandchild, should die without children. But this cannot be, as there is a further provision tbat a sale and deed by tbe grandchildren shall be sufficient to pass a valid title to tbe purchaser) in case of tbe grandchildren’s death afterwards without children. This lánguage is very plain and easily understandable. It can bave but one meaning, which is, tbat though it is provided in tbe will tbat, if tbe grandchildren should die without children, tbe land should go to tbe testatrix’s own beirs, yet if tbe grandchildren shall bave sold and conveyed tbe land, tbe purchaser shall acquire a good title. This would, of course, prevent tbe land from going over under tbe prior clause in tbe will.

It is therefore unnecessary to consider or discuss tbe other question suggested as to bow, if at all,, tbe rule against perpetuities may affect tbe question, as there could be no perpetuity. Tbe further limitation to ulterior devisees would be cut off.

Our opinion is tbat there was error in tbe ruling and judgment of tbe court, which is reversed, and judgment will be entered in tbe court below for plaintiffs accordingly.

Eeversed.