#### BERTHA MAY HART MURDOCK and Her Husband, W. J. MURDOCK, v. C. R. DEAL.

(Filed 20 November, 1935.)

1. Wills E b — Devise in this case held to create defeasible fee.

A devise to testator’s daughter and her bodily heirs, and if she dies without bodily heirs, then in trust for the heirs of testator’s sisters, is *held,*to create a fee-simple estate in the daughter, defeasible upon her dying without children or issue, it being apparent that the words “bodily heirs” used in the devise meant children or issue, as otherwise the limitation over to the heirs of testator’s sisters would be meaningless. O. S., 1734.

*7552. Wills E g—

A provision in a will that land devised should never be sold by the devisee or contingent remainderman is void as against public policy, but such provision does not affect the validity of the provisions of the will devising the land.

Devin, J., took no part in the consideration or decision of this case.

Appeal by plaintiffs from *Qlement, J.,*at August Term, 1935, of Ikedell.

Affirmed.

Tbis is an action for a declaratory judgment construing tbe last will and testament of T. L. Hart, deceased, and adjudging that by virtue of said last will and testament tbe *feme*plaintiff is tbe owner of an indefeasible estate in fee simple in certain lands described in tbe complaint, and bas tbe power, witb tbe joinder of ber husband, to convey tbe same in accordance witb ber contract witb tbe defendant.

Tbe facts admitted in tbe pleadings are as follows:

T. L. Hart died in Iredell County, North Carolina, during tbe year 1930, having first made and published bis last will and testament, which was duly probated by tbe clerk of tbe Superior Court of Iredell County, and recorded in tbe office of said clerk on 4 June, 1930.

By bis last will and testament, tbe said T. L. Hart devised bis borne place in Iredell County “to my daughter, Bertha May Hart, and ber bodily heirs forever, never to be sold, and if she dies without bodily heirs, then it must be in trust for my sisters’ heirs, to bold but never to sell tbe same.”

By a codicil to bis said last will and testament, tbe said T. L. Hart devised to bis daughter, Bertha May Hart, a tract of land in Iredell County, containing forty-five acres, and described in tbe complaint by metes and bounds.

At bis death, T. L. Hart left surviving as bis only heir at law bis daughter, Bertha May Hart, who bas since intermarried witb tbe plaintiff *W.*J. Murdock. He also left surviving five sisters, three of whom are married. Each of these sisters bas children. Neither of bis two unmarried sisters bas children. Both are now over fifty years of age.

On 1 April, 1935, tbe plaintiffs and tbe defendant entered into a contract, in writing, by which tbe plaintiffs agreed to convey to tbe defendant a fee-simple estate, free and clear of all liens or encumbrances, in two tracts of land, one tract containing twelve acres, and being a part of tbe home place of T. L. Hart, deceased, which was devised to tbe feme plaintiff by tbe said T. L. Hart in bis last will and testament, and tbe other tract containing forty-five acres and being tbe tract which was devised to tbe *feme*plaintiff by T. L. Hart, deceased, by tbe codicil to bis last will and testament. By said contract, tbe defendant agreed to *756pay to the plaintiffs the sum of $1,000, upon the execution and delivery to him by the plaintiffs of a deed conveying both said tracts of land to the defendant, in fee simple, in accordance with said contract.

The defendant has refused to accept the deed tendered to him by the plaintiffs, and has declined to pay the plaintiffs the sum of $1,000, in accordance with said contract, on the ground that the *feme*plaintiff is not the owner of an indefeasible estate in fee simple in said tracts of land, and for that reason the plaintiffs cannot convey to him such an estate in said lands, in accordance with their contract.

On these facts the court was of opinion, and so held, that the *feme*plaintiff is the owner of an indefeasible estate in fee simple in the forty-; five-acre tract, but that she is not the owner of such an estate in the twelve-acre tract.

It was accordingly ordered, considered, and adjudged that plaintiffs are not entitled to the specific performance by the defendant of the contract set up in the complaint, and that the defendant recover of the plaintiffs the costs of the action. The plaintiffs appealed to the Supreme Court, assigning as error the holding of the court that the *feme*plaintiff is not the owner of an indefeasible estate in fee simple in the twelve-acre tract described in the complaint.

*Baymer & Baymer and, Lewis & Lewis for plaintiffs.*

*No counsel for defendant.*

CoNNOR, J.

There is no error in the judgment in this action. By virtue of the last will and testament of her father, T. L. Hart, deceased, and under the statute, C. S., 1734, the *feme*plaintiff is the owner of an estate in fee simple in the twelve-acre tract described in the complaint. This estate, however, is defeasible upon the death of the *feme*plaintiff without bodily heirs. *Whitfield v. Garris,*131 N. C., 148, 42 S. E., 568, and 134 N. C., 24, 45 S. E., 904. It is clear that the words “bodily heirs,” used by the testator, must be construed as meaning children or issue; otherwise, the limitation over to the heirs of the sisters of the testator would be meaningless. *Rollins v. Keel,*115 N. C., 68, 20 S. E., 209. See *Pugh v. Allen,*179 N. C., 307, 102 S. E. 394.

The limitation over to the heirs of the sisters of the testator, upon the death of the *feme*plaintiff without bodily heirs or issue, is not void. The provision in the will that the home place of the testator, which includes the twelve-acre tract described in the complaint, shall not be sold by either the *feme*plaintiff or the remaindermen is void as against public policy. This provision, however, does not affect the validity of the devise, either to the plaintiff or to the remaindermen. See *Lee v. Oates,*171 N. C., 717, 88 S. E., 889.

*757There is nothing in the codicil which affects the estate in the home place of the testator devised in the will to the *feme*plaintiff.

The judgment is

Affirmed.

Devin, J., took no part in the consideration or decision of this case.