#### In the matter of BEECHER P. CHAPPELL, Guardian of BESSIE CHAPPELL, Incompetent v. BEECHER P. CHAPPELL, Individually; OSCAR CHAPPELL; EVA CHAPPELL STOUT; ESTELLE CHAPPELL COLLIER; NOVELLA CHAPPELL WARD; BURRUS CHAPPELL, JR., Minor; ERAS CHAPPELL; URCELL CHAPPELL; MARGARET CHAPPELL WARD and THEOTIS P. LOWRY and GLADYS CHAPPELL WARREN.

(Filed 19 December 1963.)

1. Wills § 31—

The word “loan” when used in the dispositive provisions of a will is to ibe construed as “give” or “devise” unless it is manifest that the testator intended otherwise.

2. Wills § 32—

Where the language attracts the Rule in *Shelley’s*Case the Rule applies as a rule of property without regard to the intent of testator.

3. Same—

The words “nearest heirs” means simply “heirs” and 'the words do not .take the case out of the Rule in *Shelley’s*Case.

4. Same—

Provisions of a will that “I loan” to' testator’s son “his lifetime and then to his widow her lifetime or during her widowhood and then to the nearest heirs,” devise the son. a life estate in possession with a fee simple in expectancy under the Rule in *Shelley’s*Case, and upon the death of the son, the heirs of the son own the land ,in fee subject to the life estate of the son’s widow.

Appeal by petitioner Beecher P. Ghappell and -the respondents Enas Chappell, Urcell Chappell, Margaret Chappell Ward, and Gladys Chappell Warren, from *Morris, J.,*September Session 1963 of ChowaN.

This its a .proceeding Instituted by petitioner Beecher P. Chappell, guardian of Beissie Chappell, .incompetent, to obtain an order for the isale of a .tract of land allegedly owned by his ward in fee simple.

The pertinent facts found by the •court below, in .summary, are as follows:

That, John S. Chappell died leaving a last .will and testament dated 24 January 1910, and the same was duly and properly admitted to probate in the office of the Clerk of the Superior Court of Chowan County on 15 April 1912. Item Three of the said testator’s will reads as follows:

“I loan to John S. Chappell, Jr., my homeplace where I now live containing 91 acres more or less to him his lifetime and then to his widow her lifetime or during -her widowhood then to the nearest heirs, *738■with Idle privilege :oif cutting and using 'any timber necessary for ¡his 'own use on the farm, and buildings, ¡amid noit to sell any except tlhe dead timber. I give him -all the farming implements 'and ¿remainder of the Household & Kitchen Furniture., and what 'corn & other feed & meat that may be on band at tire time of my death and Two- Hundred Dol-¡Lans ($200) in cash”;

That, Bessie Chappell, incompetent, is the isurviving widow of the islaá'd John S. Chappell, Jr., and iis the widow referred to- within the meaning of Item Three of the aforementioned will;

That, title to- the tract of land described in the petition, and being the same ¡tract -of land devised under Item Three -of the will of John S. Chapped, isaid will being offered in evidence by -petitioner and being attached to the petition and by -reference made a part thereof, is dependent upon the 'construction of Item Three of said will; and

That, -all -persons whoise interest may 'be affected by this proceeding have been made parties hereto-, have been duly served, and the -court has jurisdiction over said parties and over the subject matter -of this proceeding.

John- S. Chapped, testator of the -aforesaid will, -died' leaving three children surviving him, namely, John S. Chappell, J-r., Charlie Clifton Chapp-ell and Sarah L. Chappell Lowry. The -other children of John S. Chapped, testator, predeceased him anld left no isurviving issue. The three children who survived- siaid testator have been dead for many years.

Besisie Chappell, -who iis 71 years of age, has been adjudged i-ncoan-p-etent from want of understanding to- manage her affairs by reason of mental and physical weakness- on account of -old -age iamd disease, -and Beecher P. Chapped- has been -appointed guardian -of ©aid incompetent.

The -children of said John S. Chapp-ell, Jr., -and Bessie Chappell, and the descendant of the -deceased -child, are as follows: Beecher P. Chap-pell (gulardian for Bessie Chappell, incompetent), Osear Chapp-ell, Eva Chapp-ell Stout, Estelle Chapped Collier, Novella Chapp-ell War-d, and Burruis Chappell who- is -dead- and left -surviving 'him -one -child, Burras Chappell, Jr. who- -ils now 13 years of age and is represented -in this proceeding by a guardian- -ad litem; Charlie Clifton Chapped who died leaving four children -surviving Mm, -as follows: Era® Chappell, Urcel-1 Chappell, Margaret 'Chappell Ward, iand Gladys Chappell Warren; and the ©aid Sarah L. Chappell Lowry who died leaving one -child, namely, Theoti® F. Lowry.

A trial by jury was expressly waived and at the close of the hearing and -after the judgment wtas signed it was agreed and stipulated that “each and every finding o-f fact appearing in -the * * * judgment of *739Morris, J.; is fully supported by competent evidence offered and admitted during the trial of this cause * *

There is no suggestion on the piaart of the ¡petitioner, .appellant, that Bessie Chappell is 'entitled to take any interest in the lands involved herein pursuant to the provisions of Chapter 879 of the 1959 Session Laws, ¡codified ,a¡s G.S. 29-1, et seq.

In construing Item Three of the last will and testament of John S. Chappell, the ¡court below held that, “(1) * * the word®,‘The nearest heirs,’ appearing in Item Third of ¡said will, were intended by the testator to mean the nearest heirs of John S. Chappell, Jr., and therefore the rule in *Shelley’s*case applies ¡so as to give the ¡said John S. Chappell, Jr. fee simple title to said tract of land, subject only to the intervening estate of his widow, Bessie 'Chappell, for her lifetime or widowhood. (2) Bessie Chappell, incompetent, doe® not have fee simple title -to said tract of land.”

Judgment was entered accordingly, and the petitioner and the respondents, except the surviving heirs of John S. Chappell, Jr., appeal, assigning error.

*Aydlett & White for petitioner appellant.*

*LeRoy, Wells & Shaw for respondent appellants.*

*W. J. P. Earnhardt, Jr., guardian ad litem for Burrus Chappell, Jr.*

*Philip P. Godwin for respondent appellees.*

DeNNy, C.J.

The question posed for decision is whether or not the words “to the nearest 'heirs” as they ¡appear in Item Three of the will of John' S. Chappell bring this devise within the rule -in *Shelley’s*ease.

In the ease of *Allen v. Hewitt,*212 N.C. 367, 193 S.E. 275, this Court said: “The terms ‘loam’ and ‘lend’ when used in a will ¡are given the interpretation of the words ‘.give’ ¡and ‘devise’ unless it is manifest that the testator intended otherwise. *Sessoms v. Sessoms,*144 N.C. 121 (56 S.E. 687), citing *Cox v. Marks,*27 N.C. 361; *King v. Utley,*85 N.C. 59; *Robeson v. Moore,*168 N.C. 388 (84 S.E. 351, L.R.A. 1915D 496); *Waller v. Brown,*197 N.C. 508 (149 S.E. 687). * * *

“It is established by repeated decisions of this Court that the rule in *Shelley’s*case is still recognized in this jurisdiction, and where the same obtains it does so as ¡a rule of property without regard to the intent of 'the grantor or devisor. (Citations omitted.)” See *Hammer v. Brantley,*244 N.C. 71, 92 S.E. 2d 424, and Strong's North Carolina Index, Volume 4, Section 32, page 513.

Likewise, in *Crisp v. Biggs,*176 N.C. 1, 96 S.E. 662, Jesse Mizelle devised the tract of land in question to his son, Hardy Mizelle, “to have *740(and to hold in fee ©imple all the day© >o.f his life, then it shall descend •to his nearest heins.” The question to be determined wiais whether the devise to- Handy Mizelle wa® in fee simple under the rule in *Shelley’s*ease. Clark, C.J., ©peaking fioor the Court, ©aid: "The mile in *Shelley’s*©ase wa© first stated, 1 Coke, 104, in 1581, .and is as follows: “When an ancestor, by 'any gift or 'conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either 'mediately or immediately, ito his heirs in fee or in tail, the word *heirs*is a word of Imitation of the estate, and mot a word oif purchase.’ * * *

“The worts, 'nearest heirs,’ mean ©imply ‘heirs,’ and do not take this case out of the rule.” *Cox v. Heath,*198 N.C. 503, 152 S.E. 388.

Also, in the case of *Ratley v. Oliver,*229 N.C. 120, 47 S.E. 2d 703, •the devise -was to W. A. Ratley “for his natural life, >amd at hi© death to his nearest heins.” The Count said: “And the principle seems to have Ibeen established by the .adjudications of this Court that the words ‘nearest heir©,’ ©tending alone, should be understood .in their technical sense as denoting .an -indefinite succession of lineal descendants who ■are to- take by inheritance * * *, .and that the role in *Shelley’s*case applies as a rule of law and of property, vesting fee simple title in. the first taker.”

In *Rose v. Rose,*219 N.C. 20, 12 S.E. 2d 688, the devise was -as follows: “I give land bequeath to my son, W. W. Roise, the Pierce place where he now lives * * his lifetime, then to hi© wife, Sarah, her lifetime or -widowhood but in case said W. W. Roise have iany heirs ©aid •land -go to said heirs.” Stacy, C.J., ©peaking for the Court, said: “Reduced to- its simplest terms, the devise .in question is one to W. W. Roise for Efe, remainder to hi© wife Sarah for life, remainder to his heirs. *Rowland v. Building & Loan Assn.,*211 N.C. 456, 190 S.E. 719. This under the rule in *Shelley’s*case gives to- W. W. Rose an estate for life in possession, with >a fee ©imple in expectancy. *Hileman v. Bouslaugh,*13 Pa. St. 344. He may deal with the property -als full owner and convey it, subject only to the intervening ilife estate and its incidents. *Welch v. Gibson, supra*(193 N.C. 684, 138 S.E. 25); *Smith v. Smith,*173 N.C. 124, 91 S.E. 721; *Cotten v. Moseley,*159 N.C. 1, 74 S.E. 454. As 'the intervening life estate is at an end, he may convey it absolutely and in fee simple.”

In *Smith v. Smith,*173 N.C. 124, 91 S.E. 721, the devise w.as to testator’© eon, “to have during hi© life, .at hi© death to- his bodily heir© and to his wife her lifetime or widowhood.” Tire Court held in this caise that the son .took ¡a fee simple title to the devised land ©u'bj ect only to tihe life estate of 'his wife, or until she remarried, and that the precedent Efe estate in her did not affect the operation o;f the rule in *Shelley’s*caise insofar 'a© the heirs were concerned.

*741In light of our deoisiomis, we hold that the heins of John S. Chappell, Jr., are the owners in fee simple of the tract of land devised in Item Three of the will of John S. Chappell, subject to the life estate of Bessie Chappell.

The judgment of the eourt below is, in all respects,

Affirmed.