Tbe primary question in tbe case is whether or not an estate by entirety can be created, in personal property.
Tbe question is raised by Item 9 of tbe last will and testament of Sarab E. Wadsworth and involves a legacy of $10,000 of North Carolina four per cent bonds. There is 'no controversy with respect to tbe devise of real estate contained in Item 9.
In Turlington v. Lucas, 186 N. C., 283, this Court held that an estate by entirety in personal property was not recognized in North Carolina. This decision was banded down subsequent to tbe execution of tbe will in controversy. The divergence of judicial opinion upon the question is referred to by Clarkson, J., in Turlington v. Lucas. There is also an instructive note upon tbe question in tbe North Carolina Law Review of April, 1924, p. 195. It would serve no useful purpose to reopen tbe debate or to reexamine tbe authorities as tbe question is no longer an open one after tbe decision in Turlington v. Lucas. Many of tbe decisions upon tbe point are classified in a note to tbe case of George v. Dutton, 108 Atlantic, 515, and annotated in 8 A. L. R., 1017. Tbe annotater in that case says: “As stated in tbe next preceding subdivision of this annotation, tbe decided weight of authority is to tbe effect that estates by the entirety may exist in personalty as well as in realty.” North Carolina is classified under this statement as bolding that estates by entirety in personal property are valid. Two cases from this State are cited in support of tbe proposition, to wit, West v. R. R., 140 N. C., 620, and Jones v. Smith, 149 N. C., 318. There are declarations in tbe cases which would perhaps warrant tbe inference that our Court has applied tbe doctrine of entirety to personal property. For instance, in tbe West case, supra, Clark, C. J., after discussing tbe incidents of an estate by entirety in land, said: “As to personalty the same rule applies, and, where shares of stock stand in tbe joint names of husband and wife be is entitled to tbe dividends during their joint lives.” However, Chief Justice Clark wrote tbe case of Kilpatrick v. Kilpatrick, 176 N. C., 182, using tbe following language: “Tbe briefs of counsel on both sides admit that there is no decision in this State upon tbe question whether there is an estate by entireties in personalty. Tbe decisions in other states on tbe point are conflicting. In England the estate by entireties obtained only in realty and has been abolished even as to that.” It is apparent, therefore, that tbe Chief Justice never construed West v. R. R., supra, as deciding tbe question. Tbe other case of Jones v. Smith involved tbe right of tbe partition of lumber manufactured from trees growing on land held by tbe entirety. Justice Walker, writing for tbe Court, said: “As tbe plaintiffs were thus seized of tbe timber, its severance from tbe land by cutting it did not convert the estate in tbe trees, when severed, or in the lumber cut from tbe logs, *702into a tenancy in common, nor is tbe feme plaintiff, by reason of the severance, entitled to maintain this action for partition.” It is clear, we think, by reason of the reference in the Kilpatrick case, supra, that this Court has not construed either the West case or the Jones case as deciding the question, and that it was an open question in this State until the decision in Turlington v. Lucas, supra.
The defendants contend that the language in Item 9 “to have and to hold the said real estate and bonds to them as husband and wife by entireties and to the survivor of them in fee simple,” by reason of the words, “survivor-of them in fee simple,” creates a contingent remainder in personal property. Our judgment, however, is that these words simply state the incident of an estate by entirety and that the estate by entirety is the governing thought in said item.
There are other questions as to the hypothecation of some of these bonds, but these involve accounting to be determined at the time of the final settlement of the estate.
Holding, as we do, that there is no estate by entireties in personal property, it necessarily follows that L. H. Cutler and his wife, Laura D. Cutler, took said bonds as tenants in common, and the judgment rendered by the trial court is approved.
Affirmed.