A, in 1817, devised as follows: "I give to my son I the tract of land he now lives on; but if he should die without an heir, the land then to be divided between my two sons A and W": Held, that the limitation over was too remote, the devise to I creating an estate tail, which by our act of Assembly is converted into a fee simple.
This was an action of ejectment in which the parties agreed upon the following facts:
Isaiah Weatherly, the elder, was seized of the premises in fee, and devised them on 5 September, 1847, as follows: "I give to my son Isaiah the tract of land he now lives on; but if he should die without an heir, the land then to be divided (26) between my two sons, Abner and William." Isaiah, the son, enjoyed the premises during his life and died without ever having had a child, and the defendant claims under him. The testator's two sons, Abner and William, to whom the premises were limited over, are the lessors of the plaintiff. Upon not guilty pleaded, the plaintiff was nonsuited in the Superior Court, and appealed.
RUFFIN, C. J.
The limitation over is clearly too remote, and the whole estate vested absolutely in the first taker. "Heir" means heir of the body in this will, as the gift over, upon the death of one son "without an heir," is to his two brothers. There is nothing in the will to enable us to read "child" or "children" for "heir," and in its proper sense of "heir of the body" Isaiah, the son, took a fee by force of the act which turns estates tail into fee simples. This conclusion is supported by several cases, which are directly in point. Davidson v. Davidson, 8 N.C. 163; Sanders v. Hyatt, ib., 247; Hollowell v. Kornegay, 29 N.C. 261.
PER CURIAM. Judgment affirmed.
Cited: Leathers v. Gray, 101 N.C. 164, 166.
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