#### F. R. DOGGETT v. ROSA LEE DOGGETT VAUGHAN.

(Filed 17 September, 1930.)

1. Wills-E c — In order for rulo in Shelley’s case to apply the devisee must take in character as well as in quality- of heir.

' In'.order for the rale in Shelley’s case to apply, those who are to take an estate under a devise must do so in the character and in the quality of heir in accordance with the canons of descent, and where, taking a part of a clause of a will, the rule would be applicable, it will not prevail when construing the-entire clause the evident intent of the testator appears to the contrary. ■

2. Wills E b — Under the devise in this case the devisee took a life estate only with remainder to her children.

Construing a devise of lands to the testator’s three daughters by name for life and at their death to the heirs of their bodies in fee simple forever, the land to be divided equally between them after the testator’s death, with further provision that if either daughter die without a living heir of her body her share should be divided between all of the testator’s children then living, or having living issue: Held, the controlling intent of the *425testator was not to give his daughters a fee-simple estate in the lands devised, but a life estate only, and at the death of .a daughter leaving two surviving children, such children take a fee simple in their mother’s share as tenants in common, and the rule in Shelley's case does not apply.

Appeal by plaintiff from Devin, J., at June Term, 1930, of YaNce.

Petition for partition. Plea of sole seizin. Judgment on tbe pleadings. Plaintiff appeals.

Pittman, Bridgers & Kicks far plaintiff.

A. A. Bunn for defendant.

Stacy, C. J.

Tbe case presents for construction tbe following clause in tbe will of James T. Floyd:

> “I give and bequeath to my three daughters, Ella, May and.Florence during their natural lives, all tbe rest of tbe land I may-die possessed of, and after their death, I desire that the shares of each one shall go to the heirs of her body in fee simple forever, and I desire that after my death my three daughters divide this land between themselves equally— and if -either of my daughters should die .without a living heir of her body, it is my will that her share of the land shall he equally divided between all of my children that may be living, or have living issue.”

The testator left sons, as well as daughters, him surviving, but only the share of one of the daughters, Florence Floyd Doggett, who was allotted fifty-nine acres of land under and by virtue of the above clause in her father’s will, is involved in the present proceeding. Plaintiff and defendant are the sole surviving children of Florence Floyd Dog-gett, and it is conceded that if said devise give to each ■ of the three daughters, mentioned therein, a life estate only in the share allotted to her, with remainder in fee to her children, then plaintiff and defendant are tenants in common of the locus in qua.' But if the devise in question operate to give to each of the first takers an estate- in fee, then the¡ defendant’s plea of sole seizin is good, the entire tract allotted to her mother having been devised to her. '

The controversy, therefore, turns on whether the limitations in the above clause of the will of James T. Floyd are so framed as to attract the rule in Shelley's case, which says, in substance, “that if -an estate in freehold he limited to A., with remainder to his heirs,-, general -or special, the remainder, although importing.an independent gift to the heirs, as original takers, shall confer the inheritance - on A., the ancestor.” Martin v. Knowles, 195 N. C., 427, 142 S. E., 313.

The -devise is to the testator’s three daughters for and during the term of their natural lives and after the death of any one of the daughters, it is provided that her share “shall- go to the heirs qf ,her *426body in fee simple forever.” Had tbe will stopped here, a typical case for tbe operation of tbe rule would bave been presented, for; as said by Black, J., in Steacy v. Rice, 27 Pa. St., 95, 65 Am. Dec., 447, “tbe law will not treat tbat as an estate for life wbicb is essentially an estate of inheritance, nor.permit any one to take in tbe character of heir unless be takes also in tbe quality .of heir.” Hartman v. Flynn, 189 N. C., 452, 127 S. E., 517; Bank v. Dortch, 186 N. C., 510, 120 S. E., 60. In other words, as an heir is one upon whom tbe law casts an estate at tbe death of tbe ancestor (II Black'storie, cb. 14), and as'it is necessary to consult tbe law to find out who the heir of tbe ancestor is, tbe law, speaking through tbe rule in Shelley’s case, in substance, says: “He who-would'thus take-in tbe character of heir must take also in tbe quality of heir; that is, as heir by descent under tbe law and not by purchase under tbe instrument.” Yelverton v. Yelverton, 192 N. C., 614, 135 S. E., 632.

But immediately tbe 'testator added: “I desire tbat after my death my three daughters divide this land between themselves equally — and if either of my daughters should die without a living heir of her body, 'it is my will tbat her share of tbe land shall be equally divided between all of my children tbat may be living or bave living issue.” Construing this limitation in the’ light -of tbe whole clause, it would seem tbat tbe testator did not intend to give bis daughters fee-simple estates in tbe residuary property, but life estates only, and, tbat be further intended for tbe children of each of bis daughters to. take .the share.of their mother at her death, and in tbe event of tbe death of any one of bis daughters, without children, her share was to be divided equally among all tbe testator’s children, sons as well as daughters. This interpretation of tbe clause in question, wbicb is fortified by a number of decisions, takés tbe case out of the operation of tbe rule in Shelley’s case, and assigns it to tbat class of cases of' wbicb tbe following may be said to-be fairly illustrative: Rollins v. Keel, 115 N. C., 68, 20 S. E., 209; Puckett v. Morgan, 158 N. C., 344, 74 S. E., 15; Jones v. Whichard, 163 N. C., 241, 79 S. E., 503; Pugh v. Allen, 179 N. C., 307, 102 S. E., 394; Blackledge v. Simmons, 180 N. C., 535, 105 S. E., 202, Wallace v. Wallace, 181 N. C., 158, 106 S. E., 501; Reid v. Neal, 182 N. C., 192, 108 S. E., 769; Hampton v. Griggs, 184 N. C., 13, 113 S. E., 501; Welch v. Gibson, 193 N. C., 684, 138 S. E., 25.

The distinction between this line of cases, in wbicb tbe rule has been held not to be applicable to tbe limitations appearing therein and tbe long line of decisions in wbicb it has been held to be applicable and firmly established as-tbe law of this jurisdiction, was first pointed out in Pugh v. Allen, supra, and repeated in Hampton v. Griggs, supra, and Welch v. Gibson, supra, substantially as follows: When there is an *427ulterior limitation which provides that upon the happening of a given contingency, the estate is to be taken out of the first line of descent and then put back into the same line, in a restricted manner, by giving it to some, but not to all, of those who presumptively would have shared in the estate as being potentially among the heirs general of the first taker, this circumstance may be used as one of the guides in ascertaining the paramount intention of the testator, and, with other indicia, it has been held sufficient to show that the words “heirs” or “heirs of the body” were not used in their technical sense.

As the trial court held the rule to be applicable to the limitations in the instant case, the judgment will be vacated and the cause remanded for further proceedings, not inconsistent herewith.

Error and remanded.