#### J. B. JAMES, Execr., v. LOUISE HARRIS ROGERS et al.

(Filed 29 March, 1950.)

Appeal and Error § 38—

Where the Supreme Court is evenly divided in opinion, one Justice not sitting, the judgment of the lower court will be affirmed without becoming a precedent.

Appeal by Estelle Harris Bunting and husband and Margaret Harris Hice and husband from Bone, J., February Term, 1950, of Pitt.

Proceeding under Declaratory Judgment Act to determine rights of devisees under a will.

R. E. Harris, Jr., late of Pitt County, at the time of making his will on 25 September, 1945, owned a one-fourth undivided interest in a tobacco warehouse in Greenville. This he devised to his sister, Louise Harris Rogers, describing it as all of his right, title and interest therein. Thereafter he acquired by purchase an additional one-fourth interest in the warehouse and died November, 1948, seized and possessed of two-fourths or one-half undivided interest therein.

*669The trial court beld that Louise Harris Rogers took wbat the testator ■owned in the warehouse at his death rather than what he owned therein .at the time of making of his will.

From this declaration and judgment the testator’s other sisters and •their husbands appeal, assigning error.

No counsel of record for plaintiff.

Marshall T. Spears and Lewis G. Cooper for defendants, appellants.

Albion Dunn for defendants, appellees.

Per Curiam.

One member of the Court, Barnhill, J., not sitting, and "the remaining six being evenly divided in opinion in respect of the correctness of the declaration of. the court below, the judgment of the Superior Court stands affirmed after the manner of the usual practice in such cases, and as the disposition of the appeal, without becoming a precedent. Smith v. Furniture Co., 221 N.C. 536, 19 S.E. 2d 17; Howard v. Coach Co., 216 N.C. 799, 4 S.E. 2d 499; Elmore v. General Amusements, 221 N.C. 535, 19 S.E. 2d 5; Gardner v. McDonald, 223 N.C. 854, 25 S.E. 2d 397.

Affirmed.