
    JAMES MAYNARD et al. v. A. S. SEARS.
    (Filed 15 November, 1911.)
    1. Wills — Devises—Defeasible Fee — Deeds and Conveyances — Purchase.
    A testator bequeathed certain personalty to several named beneficiaries, as to each specifying, “to him and his lawful heirs begotten of his body, dying without such, to return” to certain designated persons “or their lawful heirs”; and also devised and bequeathed “the balance of my land and negroes to be equally divided between” J., C., and T., with provision that if “they all should die without such heirs, to return to my brother and sister”: Held, J., C., and T. took a defeasible fee in the land, determinable at their death without lawful issue, and could convey no greater interest therein.
    .2. Wills — Devises—Defeasible Fee — Life Estate — Limitations of Actions.
    A devise of lands terminable upon the death of the devisee “without lawful issue” is a life estate upon the happening of the contingent defeasible event, and the statute of limitations does not begin to run against the remainderman in fee until the life estate falls in.
    3. Wills — Devises—Defeasible Fee — Devisor’s Title — Identification —Evidence.
    In an action brought by the heir at law of the remainderman to recover lands devised to his ancestor, evidence is sufficient as tending to show that the title to the lands in dispute was in the devisor, when the will itself shows he claimed the fee, and the testimony of a witness was that when he first knew the lands he was about five or sis years old and the devisor cultivated them, and that the description of the lands in the will embraced the locus in quo, which he identified and described, and that upon the death of the- devisor the devisee took possession of and cultivated the land, and stated that his title was “only good for life,” with other evidence that there was a defect of the fee-simple title in him.
    4. Evidence-^ — Lands—Acts of Ownership — Age of Witness — Weight of Evidence — Questions for Jury.
    When a witness, testifying as to acts of ownership of one having claimed the title to lands in dispute, says that at the time he was five or six years old, the weight of his testimony is for the jury to determine.
    5. Nonsuit — Evidence—Questions for Jury.
    In this case there was sufficient evidence to be submitted to the jury upon the question as to whether the plaintiffs were the heirs at law of J. S., under whom they claimed certain lands, the title to which was in dispute, and therefore a motion to nonsuit upon ■ the evidence on that ground was improperly sustained.
    Appeal by plaintiff from Whecübee. J., at February Term, 1911, of Waee.
    Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.
    
    
      Aycoclc & Winston and Peele & Maynard for plaintiff.
    
    
      R. N. Simms for defendant.
    
   Clark, C. J.

Tbis is an action to recover 100 acres of land. Berry Suris died in 1842, baying executed bis will as follows:

In tbe name of God, amen. I, Berry Suris, of county of Wake, being of sound and perfect mind and memory, blessed be God, do tbis lOtb day of February, 1842, make and publish tbis my last will and testament in manner following: That is to say, First, I give and bequeath to John Pollard one negro girl by tbe name of Jane, to him and bis lawful heirs begotten of bis body; dying without such, to return to Caswell Pollard and Thomas Slaughter, or their lawful heirs begotten of their body. Item tbe second.: I give Caswell Pollard one negro girl by tbe name of Hannah, to 'him and bis lawful beirs begotten of bis body; dying without such, to return as above directed. Thirdly, I give to Thomas Slaughter one negro girl by the name of If at, to him and bis lawful beirs begotten of bis body; dying without such, to return to John and Caswell Pollard, or their lawful beirs begotten of their body; and .the balance of my land and negroes to be equally divided between John Pollard, Cas-well Pollard, and Thomas Slaughter, after paying all my just debts, with the exception of Buck. It is my desire that he be sold to a speculator; and it is my desire that all my stock of all kinds be sold and equally divided between them as above stated. Also, my money and notes to be divided in the manner above stated equally between my three sons which are named in this will. It is my desire that if they all should die without such heirs, to return to my-brother and sister, or their lawful heirs. I also appoint and ordáin my worthy friend, Henry Williams, my executor to this my last will and testament. In testimony whereof I have hereunto set my hand and affixed my seal, in the presence of Dempsey Sorrell and John Brown, this 10th day of February, 1842.

His

Beeby X Surls.

mark.

The plaintiffs claim that they are the heirs at law of John Surls, who was a brother of Berry Surls, and offered evidence thereof. Berry Surls left no legitimate children. Soon after he died his three devisees, John and Caswell Pollard and Thomas Slaughter, took possession of the land sued for and cultivated the same, which they undertook to convey on 4 October, 1851, to Bartlett Sears, who took possession of the land and held it till his death. It was sold 10 February, 1873, to pay the debts of Bartlett Sears. It was purchased by W. H. Crab-tree, who took possession. The deed to him recites that the land is the same as that sold by John Pollard, Caswell Pollard, and Thomas Slaughter to Bartlett Sears by aforesaid deed 4 October, 1851. On 20 November, 1878, Crabtree sold the land, together with adjoining land, making a tract of 282 acres, to S. E. Horne, who remained in possession till 24 April, 1897, when he conveyed tbe land to tbe defendant Sears. Tbe last one of tbe three devisees named in tbe will of Berry Suris, to wit, Caswell Pollard, died in February, 1908. Tbis action was brought tbe following year.

The plaintiffs correctly contend that under the will of Berry Suris, John and Caswell Pollard and Thomas Slaughter took a defeasible fee in said 100 acres, and that their deed to Bartlett Sears conveyed only such estate, and that tbe successive mesne conveyances down to tbe defendant Sears conveyed no more than such defeasible fee in tbe land. Tbe statute of limitations did not begin to run against tbe plaintiffs, if heirs at law of John Suris, till tbe death of Caswell Pollard in 1908. Only one of tbe three devisees married, and tbe plaintiffs offered evidence that be left no children.

Tbe statute of limitations does not run against tbe remainder-man in favor of tbe grantee of tbe life tenant until tbe life estate falls in. Hauser v. Craft, 134 N. C., 319; Gox v. Jernigan, 154 N. C., 584; Staton v. Mullis, 92 N. C., 519.

Tbe defendant contends that tbe evidence does not show that tbe land ever belonged to Berry Suris, nor that tbe plaintiffs are tbe heirs at law of John Suris, nor that Thomas Slaughter and John Pollard áre yet dead, and that they did not leave children.

There was evidence upon all these propositions, but tbe defendant claimed that it was not sufficient to be submitted to tbe jury to prove these contentions of tbe plaintiffs. Tbe judge having directed a nonsuit, tbe evidence must be taken in tbe light of tbe most favorable inferences which can be drawn from it.

It is manifest from tbe entire will that tbe testator intended that each of tbe devisees should have a fee simple, defeasible upon failure of heirs of bis body. He makes tbis direction as to the slaves, bis money and notes, and directs “tbe balance of tbe land and negroes be equally divided between tbe three,” adding that it was bis desire “that if they all should die without such heirs, to return to my brother and sister or their lawful heirs.” Tbe testator applied tbe significant word “return” to everything.

Tbe witness Markbam testified tbat wben be first knew tbe land, Berry Suris was cultivating it; tbat tbe witness was tben five or six years old; tbat be saw tbe negro Buck named in tbe deed at work on tbe land, and tbat tbe description of tbe 100 acres in tbe will from tbe three devisees to Sears embraced tbe 100 acres of land which be identified and described. He says tbat 50 acres were in cultivation wben be first knew tbe land; tbat be remembers tbat a man was found dead on tbe tract, and tbat Berry Suris bad a grave dug on tbe land to bury bim; tbat after tbe death of Berry Suris tbe three devisees took possession of tbe land and cultivated it. Tbat Berry Suris lived on tbe land; tbat be saw bim in tbe bouse be lived in, saw bim two or three times, and saw bim walking in tbe fields where Buck and Beck mentioned in bis will were working. It is true tbat tbe witness states tbat be was tben only five or six years of age. But tbe weight of his testimony was a' matter for tbe jury. A son of Bartlett Gr. Sears, former owner of tbe land, fully identified tbe 100 acres. Tbe witness Markbam testified tbat Bartlett Sears while in possession cut down tbe timber on tbe land and stated tbat bis title was only good for tbe lifetime of tbe three devisees named in tbe will. Tbe witness Sears also stated tbat be was present wben tbe land was sold to pay bis father’s debts, and it was stated at tbe time tbat tbe title was in dispute and tbe land brought only $160 or $170, whereas it was really worth $500 or $600. Tbe witness Byrd testified tbat be beard Horne, tbe defendant’s grantor, say tbat be told tbe defendant that there was a defect in tbe title of tbe 100-acre tract* Tbe will of Berry Suris shows tbat be claimed to own this land in fee simple.

There is also evidence sufficient, if believed by tbe jury, to justify tbe finding tbat tbe plaintiffs were beirs at law of John Suris, and tbat neither John or Caswell Pollard nor Thomas Slaughter left any children. Whether tbe jury would have found tbe facts on these points in accord with tbe contentions of tbe plaintiff or not, there was sufficient evidence to submit tbe case tó their finding. In directing a nonsuit there was.

Error.  