#### ARCHIE ELLEDGE, Guardian for RALPH MASON SNOW, v. ARCHIE PARRISH and Wife, JENNIE PARRISH, RALPH MASON SNOW and MAUDE SNOW.

(Filed 2 June, 1944.)

1. Descent and Distribution § S: Wills § 34—

“Bodily beirs,” in tbe strict technical sense of issue, are not limited to the immediate issue, or children, of the first taker, but include the rest of his lineal descendants in indefinite succession.

2. Estates § 5: Wills § 34—

A devise to one and his “bodily heirs,” if the testatrix intended to use the term in its strict technical sense, would violate the rule against perpe-tuities, or might create a fee tail, and in either case a fee simple would vest in the first taker.

3. Wills § 31—

The courts are not required to indulge the presumption of technical use of words against the testamentary intent, when such intent may be reasonably ascertained from a contextual-construction of the will.

4. Wills § 33c—

By a devise of a life estate to trustees for the benefit of a son and “whatever remains after his death shall go to his bodily heirs and if they are under age, at the time of my son’s death, a guardian shall be appointed for the minor heirs of my son,” and providing further, “in case my son and his bodily heirs should die leaving part of my estate, then I will that my nephew and his wife receive whatever remains,” the only child of such son receives an unqualified remainder in fee after the life estate of his father, which vests in the only such child living at the death of testatrix for the benefit of himself and his class, subject to be defeated, in favor of the nephew and his wife, only upon the contingence of the death of such child before his father.

Appeal by defendants Arcbie Parrisb and wife, Jennie Parrish, from Sink, J., at March Term, 1944, of Foestth.

*398Lizzie Sapp died 5 January, 1934, leaving a last will and testament in which, amongst other provisions, are the following pertinent to this controversy:

“Third: That none of my real estate be sold, except a two-acre plat of land on the North side of the Southern Railway, adjoining the lands of Kernel’s’, Hester and the Cemetery, which may be sold by my Executors, if necessary, to be used for the purpose of a cemetery. The remainder of my real estate be held in trust, by my Executors for the benefit of my son, William V. Snow, during his lifetime, same to be sold only in case of necessity for his support. Whatever remains after his death, shall go to his bodily heirs and if they are under age, at the time of my son’s death, a guardian shall be appointed for the minor heirs of my son, William Y. Snow.”

“Ninth: That in case my son, William Y. Snow, and his bodily heirs should die, leaving part of my estate, then I will and desire that my nephew, Archie .Parrish and his wife, Jennie Parrish, receive whatever remains.”

William Y. Snow died 2 September, 1936, survived by Ralph Mason Snow, his son and only issue, who was born 17 September, 1924, and still survives.

This proceeding is brought by Archie Elledge, Guardian of Ralph Mason Snow, under the foregoing will, to convert a portion of the lands described in the will into funds for the support of his ward.

In his petition the guardian alleges that all of the personalty of the estate coming into his hands under the will has been exhausted; and alleges that, under a proper construction of the will, his ward now has a fee simple title to the land devised in trust for the benefit of his father, William Y. Snow, and that the portion thereof described in the petition should now be sold for his maintenance and support.

The respondents, resisting the proceeding, contended that Ralph Mason Snow has only a life estate in the properties, with remainder to them in fee; and denied the right of the petitioner to have any of the property sold for the benefit of his ward.

Upon the hearing of the matter, Judge Sink construed the will as conferring upon Ralph Mason Snow an estate in fee in all of the real estate that had been put in trust for his father, William Y. Snow, and ordered the lots described in the petition to be sold as prayed for by the guardian. The defendants Parrish appealed.

Ingle, Ruclcer & Ingle for defendants, Archie Parrish and wife, Jennie Parrish, appellants. '■

Ratcliff, Vaughn, Hudson & Ferrell for plaintiff, appellee.

*399Seawell, J.

Notwitbstanding tbe more rigorous position taken in tbe answer to tbe petition, counsel for appellants in tbeir brief bere seem to concede tbat, if necessary, tbe real estate in controversy might be sold under tbe provisions of tbe will for tbe maintenance and support of petitioner’s ward, Ealpb Mason Snow. In tbis view, tbe appellants would be interested only in preserving to themselves what might be left of tbe estate after reasonable satisfaction of tbe burdens placed upon it by tbe will for tbe necessary support of Ealpb Mason Snow during a life tenancy. Since no question has been raised as to tbe reasonableness or necessity of tbe sale for tbe purpose indicated, we come near to having an academic question laid on tbe table in tbe closing phase of tbe controversy — since decision need not necessarily rest on a determination of tbe nature of tbe estate conferred on Ealpb Mason Snow by tbe will. However, the controversy resolved itself into a difference between tbe parties in tbe construction of tbe will. Tbe judgment was rendered upon tbe theory tbat Ealpb Mason Snow bad a fee simple title to tbe realty in controversy, and declares tbat appellants have no interest therein. To avoid tbe probability of further litigation and appeal, we feel tbat it would not be amiss to settle tbis basic question upon tbe present appeal.

Tbe solution to tbe problem presented on appeal depends upon tbe significance which must be attached to tbe term “bodily heirs” as used in paragraphs 3 and 9 of tbe will.

Certainly, if we can conceive tbe testatrix as using tbe expression "bodily heirs" in tbe strict technical sense of issue, tbe devise would not be limited to tbe immediate issue, or children, of William Y. Snow, tbe first taker, but would include tbe rest of bis lineal descendants in indefinite succession. Albright v. Albright, 172 N. C., 351, 90 S. E., 303. In tbat case, tbe appellants would take, if at all, upon tbe contingency of an indefinite failure of issue of William Y. Snow; and since tbat event would not necessarily happen within tbe limits of tbe rule against perpetuity — life or lives of persons in being and twenty-one years and some months thereafter — the executive limitation over to appellants would b,e void; or if, by construing these terms technically, we could come to tbe conclusion tbat tbe effect of tbe limitation to tbe bodily heirs of William Y. Snow is to create an estate in tail, tbe statute would convert tbis into an estate in fee in Ealpb Mason Snow, tbe first taken in tbe line of tbe indefinite succession. G. S., 41-1; Starnes v. Hill, 112 N. C., 1, 16 S. E., 1011; Hodges v. Lipscomb, 128 N. C., 57, 63, 38 S. E., 281; Revis v. Murphy, 172 N. C., 579, 90 S. E., 573; Keziah v. Medlin, 173 N. C., 237, 91 S. E., 836.

It is to be doubted whether under tbe facts of tbis case tbe Court would be justified in delving deeply into tbe learning respecting perpe-*400tuities, entails, or tbe policy of tbe laws wbicb have been devised in tbe interest of tbe early vesting of estates and freer alienation.

In our opinion, tbe testatrix did not intend a disposition of ber property wbicb would violate tbe rule against perpetuities or entail tbe estate —not because of a conscious restraint from these prohibited practices, but because ber care was for tbe more immediate objects of ber bounty. There are certain expressions in both tbe 3rd and 9th paragraphs of tbe will wbicb can hardly be reconciled with tbe theory that testatrix intended to exert a posthumous control over tbe succession for an indefinite period.

In tbe 3rd paragraph she provides: “Whatever remains after bis death shall go to bis bodily heirs and if they are under age, at the time of my son's death, a guardian shall be appointed for tbe minor heirs of my son, William Y. Snow.” Tbe 9th paragraph is as follows : "That in case my son, William V. Snow, and his bodily heirs should die, leaving .part of my estate, then I will and desire that my nephew, Archie Parrish and bis wife, Jennie Parrish, receive whatever remains.” It will be observed that she first refers to bodily heirs — that is, tbe class of bodily heirs of wbicb she is thinking — as possibly being under age at the death of her son, and provides that a guardian be appointed for them; and again she refers to tbe death of ber son, William Y. Snow, and bis bodily heirs, certainly not with any conception that this might occur generations apart, or at a remote time, but in such time that, if surviving them, appellants might receive whatever remains. Clearly she did not bave in mind a lineal descent wbicb might sweep down through succeeding generations.

Tbe alternative to this view is that she used tbe term “bodily heirs” in a nontechnical sense, as meaning tbe children of William Y. Snow, rather than in tbe strictly technical sense, wbicb would mean bis lineal issue.

Often, where a devise is found to create an estate in tail or to offend tbe rule against perpetuities, it will be discovered that such disposition of tbe property was really tbe intent of tbe donor; but where that result must be reached solely by assuming that tbe testator used tbe critical words in their strict technical significance, we are not required to indulge tbe presumption of technical use against tbe testamentary intent, when it may be reasonably ascertained from a contextual construction. Daniel v. Bass, 193 N. C., 294, 136 S. E., 733; Albright v. Albright, supra, and cases cited. In this case we are satisfied that tbe testatrix used tbe term “bodily heirs” as descriptio personarum — meaning tbe children of ber son, William Y. Snow — rather than as a technical term qualifying tbe estate and setting up an indefinite succession. Starnes v. Hill, supra.

*401We come, then, to consider the nature of the estate conferred upon Ralph Mason Snow. In item third of the will, the testatrix devised to the children of William Y. Snow an unqualified remainder in fee after the life estate of the father, which vested in the only such child living at the death of the testatrix for the benefit of himself and his class. To give this devise the character of a life estate, we should have to refer to the limitation over to the Parrishes in paragraph 9 — and to deduce, ipso facto, that the testatrix intended it to take place upon the death of Ralph Mason Snow in any event. However, the appellants do not take absolutely, but upon a contingency. That contingency is expressed in paragraph 9 as follows: “That in case my son, William Y. Snow, and his bodily heirs should die, leaving part of my estate, then I will and desire that my nephew, Archie Parrish and his wife, Jennie Parrish, receive whatever remains.” That both William Y. Snow and his son, Ralph Mason Snow, should die in the course of human events was certain, and did not need to be expressed as a contingency; that they should die at the same time was highly improbable. What, then, is the significance of the contingency as thus expressed? Is the order in which they might die of significance? We think that it was the intention of the testatrix, although imperfectly expressed, that appellants should take only upon the death of William Y. Snow without living issue. Moreover, her son, William Y. Snow, and her grandson, Ralph Mason Snow, seemed to be the primary care of the testatrix, and no reason is apparent why she should cut the succession, in the interest of a collateral- family branch, and deprive the grandson of the privilege of transmitting the inheritance. We are, therefore',' of the opinion that Ralph Mason Snow, under sections 3 and 9, took a defeasible estate in fee, to be defeated only upon the contingency of his death before his father; upon this contingency, the appellants would be entitled to succeed under paragraph 9. That contingency did not happen; on the contrary, Ralph Mason Snow survived his father and his estate was thereby confirmed as an absolute estate in fee.

The conclusion reached in the court below was correct. The judgment is

Affirmed.