Civil action, heard on an agreed statement of facts. There was a judgment for the plaintiffs, and the defendant appealed.
No counsel for plaintiff.
(605) Long Bell for appellant. On 20 December, 1922, the plaintiffs contracted to sell and convey to the defendant at an agreed price a tract of land containing 140 acres. At that time the defendant made a small cash payment and agreed to pay the additional sum of $1,400 upon delivery to him by the plaintiffs of their deed conveying an indefeasible title in fee. The plaintiffs made tender of their deed and demanded payment of the remainder of the purchase money, and the defendant declined to comply with such demand on the ground that the plaintiffs could not convey a good title.
The plaintiff F. B. Harward derived title to the land through his father's will, and the validity of his title depends upon the interpretation of the second and third items, which are as follows:
"2d. I give and devise to my beloved wife Martha Ann Harward all my property, real, personal, and mixed, of what nature or kind soever, and wheresoever the same shall be at the time of my death. During her life, at her death I give and bequeath unto Donnie Harward's two *Page 637 children twenty-five dollars each, namely Leo and Lelier May Harward.
"3d. And whatsoever is remaining of my real and personal property I give and devise to my son F. B. Harward and his bodily heirs at his death."
The devisor and his wife are dead. These two clauses of the will vested in Martha Ann Harward a life estate in the land with an estate tail in remainder to F. B. Harward, which by virtue of the statute is made a fee simple. C.S. 1734; Parrish v. Hodge, 178 N.C. 133; Keziah v. Medlin,173 N.C. 237; Revis v. Murphy, 172 N.C. 579; Sessoms v. Sessoms,144 N.C. 121; Willis v. Trust Co., 183 N.C. 267.
It will be observed that the testator did not devise the land to F. B. Harward for life, with remainder to his bodily heirs. In this respect the case at bar differs from Chamblee v. Broughton, 120 N.C. 170, and Leathersv. Gray, 101 N.C. 163 (overruling the former decision in 96 N.C. 548), and similar cases, in which the rule in Shelley's case was applied.
His Honor was correct in adjudging that the plaintiffs can convey an estate in fee, and the judgment accordingly is
Affirmed.