#### OLLIE B. TYNCH, JAMES A. BRIGGS, HUBERT WILSON, RALEIGH WILSON, HARRY WILSON, DEANNIE W. MIZZELLE, DAISY D. BLUNT, WOODROW WILSON, ELIZABETH B. PARRISH, BERTHA B. HUNTER, THOMAS MUND (Widower of LULA BRIGGS, Deceased), MURIEL E. DAVIS, and MYRTLE FRY JOHNSON, Heirs at Law of J. R. BRIGGS, Deceased, v. W. LINWOOD BRIGGS, CURTIS LEIGH BRIGGS (Minor) and JAMES HERBERT BRIGGS (Minor), Heirs at Law of J. R. BRIGGS, Deceased.

(Filed 21 September, 1949.)

1. Wills § 33b—

Tbe rule in Shelley’s case applies when tbe word “beirs,” used in reference to tbe remainder after a freehold estate to tbe first taker, refers to beirs general as takers qua beirs in an indefinite line of succession, and nothing else appears; but tbe rule does not apply when “beirs” refers to a restricted class or particular persons of whom tbe term is merely deseriptio personarum.

2. Same — Rule in Shelley’s Case held inapplicable in this case.

Tbe will in question devised to testator’s wife a life estate with remainder over to testator’s son for life “in remainder to bis lawful heirs,” with provision that in the event tbe son should die without lawful heirs, then to testator’s daughter for life with remainder to her heirs, with further provision that if she should die without “heirs of her body lawfully begotten” then the lands to be sold and the proceeds divided per stirpes among testator’s heirs. Held: It is apparent from tbe will that the words “lawful heirs” used in connection with the devise to testator’s son were used to describe a restricted class and not to refer to heirs general of the son, and the rule in Shelley’s ease does not apply.

Appeal of defendant W. Linwood Briggs from Carr, J., March Term, 1949, G-ates Superior Court.

This was a proceeding for the partition of lands described in the petition, was transferred to the Civil Issue Docket for trial on the plea of sole seizin by Linwood Briggs, one of the respondents. Jury trial was waived and by consent the matter was heard by Judge Carr at March Term, 1949, of Gates Superior Court, on stipulated facts.

In the stipulation it was agreed that “the issues raised in this action are limited to and involve only the title of James Briggs ... to the lands devised under paragraph three of the will of Allen Briggs, Sr.”

The third paragraph of the will reads as follows :

“I give and bequeath to my wife Sarah all the remainder of my real estate including the dwelling and other houses on said remainder for the term of her natural life and after her death to my son James for the period of his natural life in remainder to his lawful heirs and in the event the said James should die without lawful heirs then in remainder to my daughter Sallie Ann for her life and after her *604death to the heirs of her body lawfully begotten — and in the event of the death of the said Sallie Ann without heirs of her body lawfully begotten then said lands shall be exposed to public sale by my executor hereinafter mentioned and the proceeds arising from such sale be equally divided between and among all my children then alive and the lawful heirs of any child that may be dead the children of said deceased child to take the parents share.”

Linwood Briggs’ assertion of title to the lands in controversy is based on the contention that, on a proper construction of the will, the “Eule in Shelley’s Case” applies to the devise to James Briggs, vesting in him a title in fee to the item formally devised to him as a remainder after Sarah’s life estate, for the period of his natural life in remainder to his lawful heirs.” Linwood holds a fee simple deed from James to the land.

The petitioners deny the application of the rule, contending that such construction is inconsistent with the phraseology of the devise.

The court below found with the petitioners, rendered judgment that petitioners and respondents are owners of the lands described in item three (alone involved in controversy), and ordered sale for partition.

The respondent Linwood Briggs excepted and appealed.

Thomas L. Woodward and Godwin & Godwin for plaintiffs, appellees.

W. D. Boone for Defendant W. Linwood Briggs, appellant.

Seawell, J.

Although a previous life estate is given to Sarah, in considering the application of the Eule to James’ devise, he is technically the first taker. It is our first concern to determine who were meant by the testator as “lawful heirs” of James as second takers. If the reference is to heirs general, as takers qua heirs in an indefinite line of succession, and nothing else appeared, the application of the Eule is, as said in Hampton v. Griggs, infra, inexorable; if it refers to a restricted class or particular persons of whom the term is merely descriptio per-sonarum, the rule is completely rejected. “If those who take under the Second devise take the same estate they would take as heirs or as heirs of his body, the rule applies, otherwise not.” Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501; Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15; Minor on Real Property, p. 847.

The single expression “lawful heirs” does not stand alone. The testator uses the same term in further disposition of the item in a connection that makes it clear he was not, in either instance, referring to general heirs— “in the event the said James should die without lawful heirs then in *605remainder to my' daughter Sallie Ann for life.” James could not die without heirs (in the general sense) as long as Sallie Ann, his sister, lived.

As we have observed, the first use of the term is not final; nor is its second use in a connection irreconcilable with any reference to general heirs the only significant factor in construction: The mere fact of further and more particular disposition of the subject item in the manner set out should be sufficient to defeat the construction contended for by the respondent.

On a contextual reading we must regard the language employed in the devise not as referring to general heirs, but as descriptio personarum, and find it impossible to reconcile its use with the rule in Shelley’s case. It does not apply. Hampton v. Griggs, supra; Puckett v. Morgan, supra; Francks v. Whitaker, 116 N.C. 518, 21 S.E. 175; Rollins v. Keel, 115 N.C. 68, 20 S.E. 209; Bird v. Gilliam, 121 N.C. 326, 28 S.E. 489; Williamson v. Cox, 218 N.C. 177, 10 S.E. 2d 662.

The judgment is

Affirmed.