#### Jane E. Lowe and Charles C. Lowe, plaintiffs in error, *vs.*O. L. Cloud, executor, Elizabeth Tarver and Margaret Tarver, defendants in error.

A. will, the first item of which conveys a life-estate to one of the sisters of testatrix, with remainder to Charles O. Lowe, the son of such sister, in one-half of a plantation, said half lying on the east of the Warren-ton road, and the second item of which, so far as material to the consideration of this case, reads as follows: *“*I give and bequeath to Elizabeth Tarver, (another sister,) and Margaret Ann Tarver, (daughter of Elizabeth Tarver,) the portion of the plantation lying on the west side of the Warrenton road, adjoining lands belonging to -Walter E, Lewis, Hugh Armstrong and others : provided they come and live on it; if not, to remain with the other lot, and at the death of Elizabeth Tarver and Margaret Ann Tarver, that portion of land also to go to Charles C. Lowe,” conveys a fee in the land on the west of the War*482renton road to Elizabeth Tarver and Margaret Ann Tarver, upon their compliance with the condition, that is to say, upon their going upon the land to live.

Interpleader. Construction of will. Before Judge Andrews. Warren Superior Court. October Term, 1871.

This case arose upon a bill filed by O. L. Cloud as executor of the will of M. M. Shaw, deceased, against Elizabeth Tarver, Margaret Ann Tarver, Jane E. Lowe and Charles C. Lowe, for direction and construction of the second item of said will, and also praying that the legatees might be required to interplead. The second item was as follows: “Item second. I give and bequeath to Elizabeth Tarver, (sister of testatrix) and Margaret Ann Tarver, (daughter of .Elizabeth Tarver,) the portion of plantation lying on the west side of the Warrenton road, adjoining lands to Walter F. Lewis, Hugh Armstrong and others: provided they come .and live on it; if not, to remain with the other lot, and at the death of Elizabeth Tarver and Margaret Ann Tarver, that portion of land, also, to go to Charles C. Lowe.” Elizabeth Tarver and Margaret Ann Tarver insisted that by said item the testatrix intended, and did, devise to them in fee the said land, provided they lived on it; that they elected to live on it, and that therefore the fee became absolute. Jane E. Lowe and Charles C. Lowe contended' that under said item Elizabeth Tarver and Margaret Ann Tarver took only a life-estate in said land, remainder to Charles C. Lowe. The Court held that the Tarvers took a fee simple to said land, and plaintiffs in error excepted.

R. Toombs; E. H. Pottle, for plaintiffs in error.

Linton Stephens, for defendants.

Montgomery, Judge.

Nothing remains to be added, in this case, to the decision .as contained in the syllabus. It is therefore here repeated.

*483A will, the first item of which conveys a life estate to one of the sisters of testatrix, with remainder to Charles C. Lowe, the son of such sister, in one-half of a plantation, said half lying on the east of the Warrenton road, and the second item of which, so far as is material to the consideration of this case, reads as follow: *“I*give and bequeath to Elizabeth Tarver, (another sister,) and Margaret Ann Tarver, (daughter of Elizabeth Tarver,) the portion of the plantation lying on the west side of the Warrenton road, adjoining lands belonging to Walter F. Lewis, Hugh Armstrong and others: Provided they come and live on it. If not, to remain with the other lot, and at the death of Elizabeth Tarver and Margaret Ann Tarver, that portion of land also to go to Charles C. Lowe,” conveys a fee in the land on the west of the Warrenton road to Elizabeth Tarver and Margaret Ann Tarver, upon their compliance with the condition, that is to say, upon their going upon the land to live.

Judgment affirmed.