dissenting: Tbe deed submitted for construction in tbis - proceeding was made in 1871. In' tbe granting clause these words appear: “unto tbe said Anne E. Page and ber nearest blood relation forever”; and tbe habendum contains tbe following language: “To have and to bold said tract of land and premises, with all tbe appurtenances thereto belonging to ber, tbe said Anne E. Page, and ber nearest blood relation.” At tbe time of tbe execution and delivery of said deed, Anne E. Page bad only one son living, Billy Page, wbo was ber nearest blood relation. Tbe word “heirs” appears nowhere in tbe conveyance, either in connection with tbe names of tbe grantors or tbe grantees. It is omitted entirely from tbe instrument.
In tbe majority opinion it is conceded that prior to tbe enactment of chapter 148, Public Laws of 1879, in real property conveyances tbe use of tbe word “heirs” in connection with the name of tbe grantee was necessary to convey a fee-simple estate; except in devises and trusts, or equitable estates, where it clearly appeared that a fee simple was intended. As stated by Mr. Justice Hoke, in Smith v. Proctor, 139 N. C., 314: “It is true that prior to tbe act of 1879 tbe word ‘heirs’ was generally held necessary to tbe creation of a fee-simple estate in deeds conveying tbe legal title. It was not so in devises nor in equitable estates, where it was generally held that an estate of inheritance would pass without tbe word ‘heirs’ if such was tbe clear intent of tbe parties,” citing Holmes v. Holmes, 86 N. C., 205.
Tbe case at bar, however, comes under neither of these exceptions. Tbe instrument is not a devise, nor do we think it can be held as a substitute for one. It fails in many respects to meet the requirements of a valid will. It is a deed only, and we are asked to construe it as such. It does not purport to create or convey a trust estate, and no equitable relief is sought. Tbe pleadings present only a construction of tbe deed as a question of law. Tbe parties have thus elected to stand upon their rights, and tbe ease should be decided accordingly.
It bas been held with us, in a long line of decisions, that as a mere construction of tbe legal title on tbe face of tbe instrument, in deeds bearing date prior to tbe statute of 1879, tbe use of tbe word “heirs,” in *84some way descriptive of tbe grantee’s interest, was necessary, and always required, for tbe creation of a fee-simple estate. Boggan v. Somers, 152 N. C., 390; Real Estate Co. v. Bland,, 152 N. C., 225. And where tbe word “heirs” or words of inheritance are entirely omitted from tbe deed, only a life estate passes by such conveyance. Cullens v. Cullens, 161 N. C., 344; Batchelor v. Whitaker, 88 N. C., 350. “There is no principle of law better established than that the word ‘heirs’ is absolutely necessary in a deed (executed prior to 1879) to convey a fee-simple estate.” Stell v. Barham, 87 N. C., 62. The omission of the word “heirs” or words of inheritance from a deed, if executed before the act of 1879, will have the effect of vesting only a life estate in the bargainee. Anderson v. Logan, 105 N. C., 266; Boggan v. Somers, supra.
It should be remembered that the aid of equity is not invoked in this case. There is no allegation that the word “heirs” or words of inheritance were omitted by mistake, inadvertence, etc., which would bring the case under the doctrine announced in Fulbright v. Yoder, 113 N. C., 456; Rackley v. Chestnutt, 110 N. C., 262; Vickers v. Leigh, 104 N. C., 248; Rutledge v. Smith, 45 N. C., 283; Armfield v. Walker, 27 N. C., 583; Real Estate Co. v. Bland, supra; and other cases to like import. Nor is there any question of a trust or equitable estate involved, as in the cases of Moore v. Quince, 109 N. C., 89; Holmes v. Holmes, 86 N. C., 205, supra, and Smith v. Proctor, supra.
But conceding, for the moment, that the instrument clearly shows an intention on the part of the grantors to convey a fee-simple estate, and that upon proper allegations the deed should be reformed or corrected; how can we say that Anne E. Page is to take a fee simple, and Billy Page, her nearest blood relation living at the time of the execution of the deed, is to take no interest at all? It was held in Cullens v. Cullens, supra, that a deed, executed prior to 1879, to “Sarah A. Cullens and her children” conveyed only a life estate; but that the woman and her three children, living at the time, took as tenants in common, and that the children were entitled to share with the mother in the estate, citing Campbell v. Everhart, 139 N. C., 511; Heath v. Heath, 114 N. C., 547; Gay v. Baker, 58 N. C., 344, and Dupree v. Dupree, 45 N. C., 164.
For the foregoing reasons, and on account of the numerous decisions in our reports contra, we are unable to agree with the conclusions reached in this case by a majority of the Court.
AlleN, J., concurring in dissent.