#### FULTON et als. v. WADDELL.

(Filed 5 May, 1926.)

Wills — Intent—Estates—Remainders—Contingent Remainders — Children Living at Death of First Taker — Heirs.

A devise of lands to the testator’s two daughters for life, and after their death the property to be sold and the proceeds divided equally between all of the testator’s children then living or their heirs: EeltL, the children of the testator and not his grandchildren were the primary objects of his bounty, and at the death of the life tenants, the other of testator’s children then living take directly under the devise, and the children of those who are dead acquire no interest or estate in the subject of the devise.

CONTROVERSY without action, before Finley, J., at September Term, 1925, of Forsyth.

John D. Waddell, Sr., died in the year 1887, leaving a last will and testament, the pertinent part of which is as follows: “I loan unto my two daughters, Ann E. Matthews (widow), and Martha, my daughter, a certain tract or parcel of land ... to have and to hold during their natural life. After their death the above property to be sold and the money arising there to be equally divided between all my children then living, or their heirs.”

At the time of the death of the testator he left him surviving five children, to wit: Ann E. Matthews, Martha Waddell, James H. Wad-dell, Lucy Eulton, and John I). Waddell, Jr. Ann E. Matthews, one of the life tenants, died without issue in the year 1923. Martha Waddell, the other life tenant, died without children in 1921. James H. Wad-dell died in 1913, leaving three children. Lucy Waddell Eulton died in 1888, leaving her surviving seven children. At the time of the death of the life tenants, there were three grandchildren of Lucy Waddell Eulton living, being the children of her daughter, Minnie Eulton, who intermarried with J. W. Angel. The plaintiffs consist of the children of James H. Waddell, Lucy Waddell Eulton, and the grandchildren of Lucy Waddell Eulton, and the defendant is the sole surviving child of testator, John D. Waddell, Sr.

In 1888, Lucy Waddell Fulton conveyed her interest in the property to John D. Waddell. In the same year Jas. H. Waddell and wife conveyed their interest in the property to John I). Waddell, Martha R. Waddell and Ann E. Matthews. In 1915, Martha R. Waddell and Ann E. Matthews conveyed their interest in the property to John D. Waddell.

John D. Waddell, being under the impression that he was the sole owner of the property, has erected valuable improvements thereon, and *689tbis action is instituted in order to determine tbe rights of tbe parties in and to tbe property in controversy. Tbe trial judge “ordered and. adjudged tbat tbe defendant is tbe owner in fee of tbe land in controversy, freed and discharged of any and all claims of plaintiffs or either of them in and to tbe same.”

Erom tbe foregoing judgment plaintiffs appealed.

McMichael & McMichael for plaintiffs.

J. E. Alexander and L. M. Butler for defendant.

Brogden, J.

Tbe question is tbis: Under a devise of land for life and at tbe death of tbe life tenant, to be “equally divided between all my children then living or their heirs ” does tbe sole survivor of tbe children of testator take tbe entire property, or do tbe children and descendants of deceased brothers and sisters of such survivor share in tbe property?

Tbe true answer to tbe question, gathered from decisions in point, may be stated in three propositions, to wit: (1) Tbe remainder is contingent. Starnes v. Hill, 112 N. C., 1; Whitesides v. Cooper, 115 N. C., 570; Bowen v. Hackney, 136 N. C., 187;. James v. Hooker, 172 N. C., 780; Mercer v. Downs, ante, 203.

(2) Tbe remainder is limited to a class, and tbe class is to be ascertained at tbe termination of tbe life estate. Bowen v. Hackney, 136 N. C., 187; Witty v. Witty, 184 N. C., 375.

(3) Tbe person or persons answering tbe description when tbe life estate terminates, take tbe whole property. In other words, when tbe contingency upon which tbe estate is to vest happens, tbe law immediately calls tbe roll of tbe class. Those who can answer, take. Gill v. Weaver, 21 N. C., 41; Sanderlin v. Deford, 47 N. C., 74; Knight v. Knight, 56 N. C., 167; Hawkins v. Everett, 58 N. C., 42; Grissom v. Parish, 62 N. C., 330; Britton v. Miller, 63 N. C., 270; Wise v. Leonhardt, 128 N. C., 289; Cooley v. Lee, 170 N. C., 18; Witty v. Witty, 184 N. C., 375; Phinizy v. Foster, 90th Ala., 262.

Tbe prevailing rule, governing in such cases, is thus stated in Demill v. Reid, 71 Md., 187: “It seems to us to be clear law, as well as good sense, tbat in a case like tbis where there is an ultimate limitation upon a contingency to a class of persons plainly described, and there are persons answering tbe description in esse when tbe contingency happens, they alone can take.”

Applying these principles to tbe facts in issue, it appears tbat John D. Waddell, Sr., left him surviving five children. He devised tbe land to Ann and Martha “during their natural life, and after their death to all my children then living.” It is obvious tbat tbe designated class was *690“all my children living” at the death of the life tenant, and it is admitted that the defendant, John D. Waddell, Jr., was the only living child of testator when the life estate terminated. Therefore, as he alone answered the description or roll-call, the title to the property vested in him.

The plaintiffs, however, contend that the testator by the use of the words “or their heirs” intended to devise the property to “my children then living” and the children of those who predeceased the life tenants.

We are of the opinion that such a construction of the devise cannot be maintained either by law or logic. It is apparent that the testator contemplated an equal division among his own children, and that they were the immediate objects of his bounty, because he specifically provides that the land shall be sold and the proceeds "equally divided between all my children then livingIf the construction suggested by the plaintiffs should be allowed to prevail, then the estate must be divided per capita between the defendant and the plaintiffs for the reason that the plaintiffs would take under the will as purchasers and not by descent. Hence, the inevitable result would be that the defendant would receive one-fourteenth of the estate, and certainly not in excess of one-eleventh. Such a construction would wrench the plain meaning of the devise and violate the manifest intention of the testator. It follows that the deeds executed by the parties have no bearing upon the merits of the controversy.

Upon the record, we hold that it was the intention of the testator that the remainder should vest in all or any of his children that were living at the death of the life tenants, and in the event all of his own children were dead at that time, that their heirs should take the property under the will.

Therefore, the judgment, as written, must stand.

Affirmed.