#### W. S. COX et al. v. T. S. TYSON.

(Filed 7 March, 1928.)

Appeal by defendant from Grady, J., at January Term, 1928, of Pitt.

Affirmed.

F. C. Warding for plaintiff.

S. 0. Worthington for defendant.

Per Curiam.

John Carroll died leaving a will, one item of which is as follows:

“Item 3. I give and bequeath to my grandson, W. S. Cox, all of that tract of land whereon I now live, to have and to hold unto him and his bodily heirs in fee simple forever, but if he dies without leaving living bodily heirs, then it is my desire that the above land be equally divided between my son W. F. Carroll, and my daughter Emily L. Oox.”

On 22 December, 1922j W. F. Carroll, and all of the heirs at law of Emily Cox, deceased, to wit: Ernest Cox, David Oox, Joseph Roscoe Cox, Bessie Cox, and Leona Cox, conveyed to the plaintiff, W. E. Cox, all of their right, title and interest in the lands referred to in Item 3 of said will by deed recorded in Book Q, 14, at page 293, in the office of the register of deeds of Pitt County.

*853"W. S. Cox and wife thereafter executed a deed of trust on the devised land, under which it was sold and the defendant became the last and highest bidder. He declined to accept the trustee’s deed on the ground that the trustee cannot convey a title in fee.

It was adjudged that the trustee can convey a good and indefeasible title in fee simple. The defendant excepted and appealed.

In our opinion the judgment is free from error. It is accordingly

Affirmed.