#### LESSEE I. WALKER v. A. T. BUTNER.

(Filed 9 April, 1924.)

Estates — Contingent Remainders — Rule in Shelley’s Case — Wills—Devises — Title.

A devise of an estate for life, “and to her heirs if at her death she should leave any, and if not,” with limitation over: Beld, the first taker acquired thereunder a fee-simple title, defeasible in the event she left no heirs, under the rule in Shelley’s case; and where the ulterior remainder-man has conveyed his title to the first taker, any defect as to her having acquired an absolute fee-simple title is cured.

*536Appeal by plaintiff from Bryson, J., at February Term, 1924, of E ORSYTII.

Swink, Clement & Hutchins for plaintiff.

No counsel for defendant.

Clark, C. J.

This is an action to enforce a contract by the defendant to pay the plaintiff $2,500 for the land described in the pleadings, provided the plaintiff could convey to the defendant a deed in fee simple with full covenants of warranty, which he subsequently refused to do.

The case turns upon the construction of the will of Martha E. Sides, a widow at the date of her death, without children, who had adopted Lessie I. Walker. The defendant in this case is a kinsman of the plaintiff and also of the testatrix and is willing to pay the purchase-money if Lessie I. Walker can make him a deed in fee simple to said property. The third paragraph of the will is as 'follows: “I give and bequeath to Lessie I. Walker, whom I adopted as my lown child, my house and lot, also lot of land known as the shop lot in Bethania below the house, to be hers her lifetime, and if at the time of her death she should leave any heirs, it is to be'theirs; if not any heirs, it is to go to my brother, Charlie A. Butner, whom I appoint as my lawful executor.” Charlie A. Butner is a kinsman of the plaintiff and defendant, and prior to the institution of this action executed a deed conveying all of his right, title and interest in the land described in said paragraph to the plaintiff.

The sole question that arises is what interest Lessie I. Walker took under this will. The following is the concise definition of the rule in Shelley’s case, 1 Coke, 104: “When the ancestor by any gift or conveyance taketh an estate of freehold and in the same gift or conveyance the estate is limited either mediately or immediately to his heirs, in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase.”

These words have been construed in the leading cases of Morrisett v. Stevens, 136 N. C., 160, and Sessoms v. Sessoms, 144 N. C., 121, and others in which the language is almost identical with that in this will. Under them and many other cases which have followed substantially the words used in this will, these words give the property to Lessie Walker for life, remainder to her heirs if she should leave any, and if not, the land was to go over to testator’s brother, Charlie A. Butner.

It therefore follows upon the plain language of the will that the plaintiff, Lessie Walker, took a fee simple in the land, defeasible, however, if she die leaving no heirs, in which case it would go to Charlie A. Butner.

Any deed therefore which she should make to the plaintiff would be a valid fee simple, subject to be divested if she should die leaving no *537beirs. Whitfield v. Garris, 131 N. C., 148, wbicb was reaffirmed on a rebearing, 134 N. C., 24, and wbicb bas been often cited since as tbe undisputed law of tbis subject in tbis State.

But tbat possible defect is cured by tbe fact tbat in sucb event tbe property would go over to Cbarlie A. Butner, wbo bas already conveyed by deed to Bessie I. 'Walker all right, title and interest wbicb be might have in tbe property in tbe event of her death without beirs.

In Puckett v. Morgan, 158 N. C., 344, upon language different from tbat herein, it was held tbat tbe rule in Shelley’s case did not apply. Upon tbe language of tbis devise there can be no controversy, upon tbe settled cases, tbat in tbis instance tbe devise to Bessie Walker and her beirs is a fee simple under tbe rule in Shelley’s case wbicb would be defeasible, for should.she die without beirs it would go to Charlie A. Butner. As be bas already conveyed bis interest to tbe plaintiff in tbis case, in any event tbe deed of tbe plaintiff wbicb bas been tendered to tbe defendant would make a good fee simple, indefeasible title.

In Nichols v. Gladden, 117 N. C., 497, it is well said tbat “the rule in Shelley’s case is a rule of law and not of construction, and no matter what tbe intention of tbe grantor or testator may have been, if an estate is granted or .given to one for life and after bis death to bis beirs, or ‘heirs'of bis body,’ and no other words are super added wbicb to a certainty show tbat other persons than tbe beirs general of tbe first taker' are meant, tbe rule applies, and tbe whole estate vests in tbe first taker.” Tbat is well-settled law, and bas been repeated and approved in Smith v. Moore, 178 N. C., 374, citing 6 Cruise, 325, 326, 328; Fearne on Remainders, 196; Hargraves Tracts, 551; 4 Kent, 208, 214, and divers cases.

Tbe history of tbe origin and tbe reason of tbe rule are stated in tbe concurring opinion in Cohoon v. Upton, 174 N. C., 91, and it is there pointed out tbat tbe original object of tbe rule was to “secure tbe feudal owners of lands against tbe loss of wardships and other ‘rake-offs’ upon wbicb tbe feudal lords lived at a time when land was tbe principal wealth and tbe foundation of dignity and influence, and was a highly technical one, contradicting tbe plain intent of tbe grantor or devisor, . . . but at present it serves an excellent but an entirely different purpose in tbis State, in tbat it prevents tbe tying up of real estate by making possible its transfer one generation earlier and also subjecting it to tbe payment of the debts of tbe first taker. It is doubtless for tbis reason tbat tbe rule bas never been repealed in North Carolina.” Tbe nonsuit granted by tbe court below and tbe decree tbat tbe plaintiff held only a life estate in tbe land is

Reversed.