#### JOSEPH J. VASSAR v. J. B. VASSAR et al.

(Filed 3 March, 1926.)

Estates — Contingent Limitations — Defeasible Pee — Deeds and; Conveyances.

A devise to testator’s wife for life, remainder to his son, and should the son die without bodily heirs, then to the other of testator’s children: Held,, after the death of the life tenant, the son took a defeasible fee-simple title contingent upon his dying leaving children, the rule in Shelley’s ease not applying, and a deed from the son and the testator’s children could not convey a fee simple absolute, such being further dependent upon the unascertained contingency of who would take the estate in the event of the death of the son.

Appeal by plaintiff from Sinclair, J., at November Term, 1925, of NORTHAMPTON.

Civil action to recover tbe balance alleged to be due on the purchase price of a tract of land sold by. the'plaintiff to the defendant, W. L. Harris. The other defendants have been made parties because of their alleged interest in the land and to bar their claims by judgment should it be decided that the title conv.eyed to the defendant is absolute and indefeasible.

The plaintiff, Joseph J. Vassar, by deed dated 13 January, 1922, conveyed and intended to convey to the defendant, W. L. Harris, all his right, title, interest and estate in and to a certain tract of land, with the understanding that if the title conveyed was a defeasible fee — the plaintiff having acquired the land by devise under item 6 of his father’s will — the purchase price should be $20 per acre, but if plaintiff estab-*333listed, by proper proceeding, witbin five years thereafter that tbe title conveyed was an indefeasible fee simple, tbe 'defendant agreed to pay an additional $20 per acre.

Tbis suit is to recover tbe additional $20 per acre. It was adjudged by tbe Superior Court tbat tbe plaintiff’s deed did not convey an indefeasible fee-simple title to tbe land in question and bence denied any recovery to tbe plaintiff. From tbis judgment, tbe plaintiff appeals.

D. M. Glarh and Dinlc James for plaintiff.

Geo. C. Green for defendant, W. L. Harris.

Stacy, C. J.,

after-stating tbe case: Tbe plaintiff derives title to tbe land in question by devise from bis father, and, on tbe bearing, tbe title offered was properly made to depend upon tbe construction of item 6 of tbe will of James Yassar, which is as follows:

> “I loan unto my son, Joseph J. Yassar, at my wife’s death (Mary L. Yassar) all tbe land loaned my wife, Mary L. Yassar, except 47 acres which is to go to John B. Yassar, and Hattie M. Yassar, to be taken off tbe west side next to tbe Egg Branch road, and if my son Joseph J. Yassar should die without bodily heirs, then in tbat event, it is my desire tbat tbe land loaned to him shall go to tbe rest of my children then living or their heirs.”

It appears from tbe record tbat Mary L. Yassar, widow of tbe testator, and who survived him, is now dead; and further tbat tbe plaintiff, Joseph J. Yassar, has two children, both of whom were living at tbe time tbe testator made bis will and who are still living.

It is conceded tbat unless tbe plaintiff, aided by tbe rule in Shelley's case, took a fee simple absolute to tbe land devised to him in item 6 of bis father’s will, subject only to tbe life estate of Mary L. Yassar, tbe title offered and conveyed by him to tbe defendant is only a defeasible fee. It is apparent from tbe language used in item 6 of tbe will, as above set out, tbat tbe rule in Shelley’s case has no application to tbe devise made to tbe plaintiff therein. Hampton v. Griggs, 184 N. C., 13.

Nor would a deed executed by tbe plaintiff and bis brothers and sisters convey a fee-simple absolute title to tbe land in question, because it cannot be known until tbe plaintiff’s death, “without bodily heirs,” as to who would take tbe ulterior devise under tbe designation, “tbe rest of my children then living or their heirs.” Mercer v. Downs, ante, 203.

Tbe record presents no reversible error, bence tbe verdict and judgment must be upheld.

No error.