
    R. M. FOSTER and wife v. JOE LEE.
    (Filed 19 May, 1909.)
    Wills, Interpretation of — Devises—Husband and Wife — Restraint on Alienation — Void—Public Policy.
    When an item of a will gives a married woman a fee in testator’s land, and it is followed by 'an item that the “above-devised lands shall not be disposed of,-but shall descend to the children of my above-mentioned daughter,” the words employed in the subsequent item are an attempted restraint upon alienation, contrary to public policy, and void.
    ActioN tried by Adams, J., upon tbe pleadings and agreed facts, at April Term, 1908, of Polk.
    Defendant appealed.
    
      J. E. Shipman for plaintiffs.
    
      S. Gallert and Simpson & Bomar for defendant.
   Clark, C. J.

Tbe sole question presented by tbis appeal is whether Clara May Foster is owner in fee of tbe land contracted to be conveyed by her and can convey a good title thereto.

It is agreed that ■ J. M. Hamilton died seized and possessed of tbe premises. By item 4 of bis will be devised tbe land in question to bis daughter, “Clara May Foster, wife of R. M. Foster, and her heirs forever.” By item 5 be provided that tbe “above-devised lands shall not be disposed of, but shall descend to tbe children of my above-mentioned daughter.”

Item 4 gave tbe plaintiff Clara May a fee simple. Tbe words of item 5 did not convert tbis into a life estate. There is no devise to tbe grandchildren; there is simply an attempted restraint ujion alienation, which is contrary to public policy and void. Tbis is settled by a long line of authorities, but it is sufficient to refer to Wool v. Fleetwood, 136 N. C., 460, a recent case, in which the subject is fully discussed and authorities cited by Mr. Justice Walicer.

It is admitted that Clara May Foster has not encumbered or conveyed the premises. His Honor properly held that she owned the land in fee and had a right to convey the same, and rendered judgment against her vendee for the purchase money.

No Error.  