Stanley v. Foster , 244 N.C. 201 ( 1956 )

Winborne, J.

The sole assignment of error presented on this appeal is predicated upon exception to the judgment signed. In this connection, in so far as the appellants are concerned, the determinative question on which decision rests on this appeal is this: What estate, right, title or interest, in and to the 61-acre tract, if any, do they, as great-grandchildren of James Somers, take under his will?

The answer is “Nothing.” The 61-acre tract of land is the land devised by the testator to his son, Thomas, and as to it, the will expressly provides (1) that “if he dies leaving no children, his part comes back to my grandchildren,” that is, the testator’s grandchildren, but (2) “his wife” that is, Thomas’ wife, “is to have it her lifetime,” and again (3) “after her death it comes back to my grandchildren,” and (4) the grandchildren referred to are “May Belle and Betsy Ann Somers and Sarah Elizabeth Walker,” and (5) “if one dies without leaving children, her part comes back to them that is living.” Thus it is manifest that the testator desired the land so devised to go to his named grandchildren “to be equally divided between them and then (to) their bodily heirs.” That is, he gave to each of the grandchildren a fee in the land defeasible by her dying without leaving children. And though all of them are living, and are of advanced ages, and May Belle and Betsy Ann Somers have no children, yet “in contemplation of law, the possibility of issue is commensurate with life,” as expressed by Parker, J., in Griffin v. Springer, ante, 95, citing cases.

Therefore, in no event do the great-grandchildren of the testator now have any interest which may be asserted. Hence the judgment as to appellants from which appeal is taken is

Affirmed.

Devin, J., took no part in the consideration or decision of this case.