#### DOE ON DEMISE OF JOEL SULLIVAN v. SANDFORD RAGSDALE AND WIFE.

A testator devised “to my /¡Timdami J. S., son of 3. S. tire traer, of land X now live on, with the reservo and privilege of my sou S. S. the father of the said J. haviug tho full privilege of the said lend, and all the profits arising therefrom during Ida natural life;.” In a subsequent clause ho says, “ X further give and bequeath all my lands, that I am seized and possessed of at this time, or the profits arising therefrom to my beloved wife, during her natural life or widowhood, thon for it to fall back to the said heir as above mentioned.”

*Held,*that, even if J. S. bo tho *heir*intended in the second clause ol tho will, yet ho could only take the lands, subject to the reservation in the first clause of a life estate to his father, and that he could not bring an action to recover the lands in the lifetime of the father.

Appeal from the Superior Court of Law of Guilford County, at the Spring Term, 1847, his Honor Judge Manly, presiding.

Joel Sullivan by his last will devised as follows: “ I give and bequeath to my grandson Joel Sullivan, son of Samuel Sullivan, the tract of land I now live on, supposed to be one hundred and sixty-three acres, with the reserve and privilege of my' son Samuel Sullivan, *the*father of the said Joel, having the full privilege of said land, and all the profits arising therefrom during his natural life.” By a subsequent clause, he devises as follows, “ I further give and bequeath, all my lands, that 1 am seised and possessed of at this time, or the profits arising therefrom to my beloved wife Elizabeth during her natural life or widowhood, then for it to fall back to the said heir as above mentioned.” *The*lessor of the plaintiff is the devisee, Joel Sullivan, the grandson, and the defendants, the heirs at law. or a portion of them, of the testator. The lessor of the plaintiff claims the premises by virtue of the second, clause, as being the *heir*referred to in it. The defendants contend, that under that devise nothing passed, but the life estate of the *195widow, for the reason, that the individual,'who is to take after her, is so obscurely pointed out, that it is impossible to say who was meant, and Ihe devise, of course fails for uncertainty. The plaintiff offered to prove, by parol testimony, that his lessor was meant by the testator to take in remainder after his grandmother the widow. The widow is dead, and the testator left his son Samuel and several other children.

Morehead, for the plaintiff.

*Mendenhall,*for the defendant.

Nash, J.

It is unnecessary for the Court, to decide any of the questions raised in the argument of the case. Whether the heir, mentioned in the second clause, refers to the father Samuel, or to the son Joel, or whether the devise fails altogether for uncertainty, as far as the remainder is concerned, are questions, which will be answered when a case is before us, in which they necessarily arise. In this action, they do not. If it be admitted, as the plaintiff contends, that he is the person meant by the testator, by the word “ *heir,”*still he cannot maintain this action. We gather from the will, that the testator owned other lands, beside that mentioned in the first recited clause, and.this other land is the subject of this suit. The plaintiff, if he bo one of the persons meant *in the*second clause, must take this land, as he does the homestead, for the words are, after the death of the widow, “ then for it to fall back *to the said heir,*as above mentioned.” Now under the first clause, Samuel takes a life estate in the homestead, with remainder in fee to Joel Sullivan, The latter must take the additional land devised in the second clause (if at all) in the same way as he takes the homestead under the first, a remainder in fee, after his father’s life estate. We do not now decide, who is or are meant by the testator, by the word *61 heir*all wo decide is, that if it be the lessor of the *196plaintiff', bo cannot maintain this action, because the life *•estate*of his father would precede his remainder in fee, and it has not fallen in, Samuel Sullivan being still alive, as far as appears.

Judgment is reversed and a *venire de novo*ordered which will bo certified to the Superior Court of Guilford.

Peb Curiam. Ordered accordingly.