#### FLOYD LAMM et al. v. EMMA MAYO et al.

(Filed 6 March, 1940.)

1. Wills § 34—

A devise to two of testator’s grandchildren for life and after their death to their children, provides a limitation over to a class and upon the death of the grandchildren, the members of the class take *per capita.*

2. Wills § 33c—

Testator devised certain of his lands to each of his living children and devised the share of his deceased daughter to her children for life with the remainder over to their children, if any, and if none then by ulterior limitation to testator’s children. *Held:*The ulterior limitation over to testator’s children was to take effect only upon total failure of lineal descendants of testator’s daughter, and upon the death of one of the grandchildren without issue the land goes to the children of the other deceased grandchild *per capita.*

Appeal by plaintiffs from *Carr, J.,*in Chambers at Nashville, 7 December, 1939. From Wilsoit.

Civil action in ejectment or for redemption, accounting and partition.

The court being of opinion, upon the pleadings and admissions of the parties, that the plaintiffs and the defendant, Ellen Hastings, have no interest in the lands described in the complaint, entered judgment accordingly, from which the plaintiffs appeal, assigning error.

*CEarles M. Griffin, J. M. Broughton, and William II. Yarborough for plaintiffs, appellants.*

*W. A. Lucas and Finch, Rand & Finch for defendants, appellees.*

Stacy, C. J.

The case turns on the construction of the following clause in the will of Solomon Lamm, who died in 1891:

> “5. I give my two grdn children Jemes H Lucas and Seney An Frances Lucas one peace of my land equily a like known as the Evins tract and one hundred & fifty dollars a peace in money ther life times an after their death then to their lawful children if eney and if none then to be equely divided betwen all my children.”

The plaintiffs and defendant, Ellen Hastings, are representatives of the children of the testator. They claim one-half of the “Evins tract” under the ulterior limitation in paragraph five of the will as Senia Ann Frances Lucas died on 13 August, 1931, without children or lineal descendants. The defendant, Emma Mayo, claims title to the same property through *mesne*conveyances from James H. Lucas and his children.

*262Tbe testator first left all of bis property to bis wife for ber lifetime or widowbood. He tbeii provided for a division of tbe property among bis several children “after ber rite seases,” and to eacb, in a separate item, be gave bis or ber part without limitation or qualification. Tbe share of bis deceased daughter was given to ber two children in item five of tbe will for “ther life times” with remainder “to their lawful children if eney,” and, if none, then over. Tbe trial court held that under tbe decisions in *Burton v. Cahill,*192 N. C., 505, 135 S. E., 332, and *Leggett v. Simpson,*176 N. C., 3, 96 S. E., 638, this remainder to tbe lawful children of tbe first takers was intended as a limitation to a class, tbe representatives of which should take *per capita.*We cannot say there was error in this ruling. Tbe cited cases appear to support it.

It seems consonant with tbe intent of tbe testator that tbe share of bis deceased daughter should go to ber lineal descendants, and only in case of a total failure of such descendants was ber share or any part of it to be divided among tbe testator’s children. Tbe judgment below accords with this intent.

Tbe autboi-ities are in support of tbe judgment rendered.

Affirmed.