#### MRS. MARY A. BROWN v. V. J. GUTHERY, L. D. SOUTHERLAND, T. B. E. SPENCER and JOHN F. DURHAM.

(Filed 23 December, 1925.)

1. Estates — Wills—Deeds and Conveyances — Remainders.

A conveyance of lands by tbe life tenant and tbe remainderman, whether tbe latter takes as sole beir at law of tbe testator, or by vested or contingent remainder, under tbe will of bis father, conveys to tbe grantee tbe life estate and tbe interest of tbe remainderman therein, wbetber it be tbe fee simple, or otherwise.

12. Estates — Reversion.

A reversion is tbe residue of an estate left by -operation of law in tbe grantor or bis beirs at law, qr in tbe beirs of tbe testator, if created by will, commencing in possession on tbe determination of tbe particular estate granted or devised.

3. Estates — Remainder—Reversion—Wills—Devise—Deeds and Conveyances.

In order to construe tbe words of a grantor in a deed or tbe testator in a will as creating an estate by reversion or remainder, tbe intent of tbe parties as gathered from tbe instrument prevails, and tbe improper use of tbe one or tbe other of these words is not controlling.

4. Same — Title.

A devise of an estate to tbe testator’s wife for life, and upon her death to revert to bis son “if be be alive, or to bis beirs if be be dead,” is held to pass to tbe son a remainder contingent upon his surviving bis mother, and a conveyance made by tbe wife and son passes her life estate in tbe lands to tbe grantee, and a contingent interest of tbe son in remainder, and not tbe indefeasible fee-simple title in tbe lands conveyed.

5. Estates — Contingent Remainders — Vested Interests.

Remainders are vested when tbe estate is invariably fixed to remain in a determinate person after tbe particular estate is spent, and contingent when limited to take effect on an event or condition which may never happen or be performed, or which may not happen or be performed until after tbe determination of tbe preceding particular estate.

6. Estates — Contingent Remainders — Rule in Shelley’s Case.

A devise to tbe testator’s wife for life, remainder to bis son “if be be alive or to bis beirs if be be dead”: *Held,*if tbe remainderman is survived by tbe life tenant, tbe estate may go to bis beirs, who take as remaindermen in fee, and not by descent, and tbe rule in *Shelley’s case*does not apply.

Appeal by defendants from judgment of Superior Court of MecicleN-bueg, .September Term, 1925. *Bryson, J.*

Reversed.

Controversy without action, in which the parties hereto present to the court, for determination, their respective contentions relative to the title of plaintiff to a lot of land in Henderson County. Plaintiff contends *823that she is seized in fee of and can convey an indefeasible *title*to said lot, in performance of her contract with defendants; defendants contend to the contrary. The facts with respect to said title are as follows:

Marion C. Toms died during the year. 1917, leaving his last will and testament, which has been duly probated and recorded. Item three of said will reads as follows: “I give and bequeath unto my beloved wife, Katie B. Toms, the following property, to be held by her during the term of her natural life, and upon her death to revert to my son, Charles French Toms, if he be alive, or to his heirs, if he be dead, viz.: The house and. lot where I now live in Hendersonville, North Carolina, on the west side of Main Street.”

Mrs. Katie B. Toms, widow of Marion C. Toms, and Charles French Toms, his only son and heir-at-law, survived said Marion 0. Toms and both are now living. Charles French Toms is the stepson of Mrs. Katie B. Toms. On 8 August, 1925, said Mrs. Katie B. Toms and Charles French Toms jointly executed and delivered to plaintiff, Mrs. Mary A. Brown, a deed with full covenants of warranty and seizin, purporting to convey to plaintiff the lot described in the will of Marion 0. Toms; thereafter, defendants entered into a contract in writing with plaintiff by which they agreed to purchase said lot of land, and to pay to her the purchase price thereof, upon the execution and delivery by plaintiff of a deed conveying to them an indefeasible title in fee simple to said lot. Plaintiff has tendered to defendants a deed sufficient in form to convey to them the said lot in full performance of her contract. Defendants have declined to accept said deed, and to pay the purchase price for said lot, contending that said deed does not convey to them an indefeasible title in fee simple for the reason that plaintiff does not own a -fee-simple estate in said lot.

The court being of opinion that upon the statement of agreed facts submitted, plaintiff has an indefeasible title in fee simple to- said lot, and that the deed tendered by plaintiff will convey such title thereto, rendered judgment in favor of plaintiff and against defendants. From this judgment, defendants appealed to the Supreme Court.

*Ewbank & Whitmire and C. S. Gov&r for plaintiff.*

*0. A. Cochran for defendants.*

CoNNOR, J.

By the deed dated 8 August, 1925, executed jointly by Mrs. Katie B. Toms and Charles French Toms, plaintiff acquired and is now the owner of all the right, title and estate of her said grantors in and to the lot of land described in the statement of agreed facts. At his death, Marion C. Toms was seized in fee and in possession of said lot. It is conceded that by virtue of his last will and testament, Mrs. Katie B. Toms, his widow, owned only an estate in said lot for the term *824of ber natural life; this sbe conveyed by ber deed to plaintiff, wbo, therefore, bas title to tbe life estate of Mrs. Katie B. Toms wbicb would pass to and vest in defendants by ber deed tendered to tbem.

If Charles French Toms owned tbe fee in said lot, remaining upon tbe termination of tbe life estate of Mrs. Katie B. Toms, either in reversion as heir-at-law of bis father, or in remainder as devisee in tbe will, such fee passed to and vested in plaintiff by virtue of bis deed. If under tbe will be tabes a vested remainder, plaintiff, having acquired tbe life estate and also such vested remainder, owns tbe entire estate in fee and ber deed to defendants would vest in tbem an indefeasible title in full compliance with ber contract. *Cotton v. Mosely,*159 N. C., 1. Unless, however, plaintiff bas acquired by tbe deed jointly executed by Mrs. Katie B. Toms and Charles French Toms, not only tbe life estate of Mrs. Toms, but also tbe fee, subject only to tbe life estate, and thus by merger owns tbe entire fee-simple estate in tbe lot, defendants’ assignment of error must be sustained and tbe judgment reversed. It therefore becomes necessary to determine what title to or estate in said lot plaintiff acquired by tbe deed of Charles French Toms.

Charles French Toms is tbe only heir-at-law of Marion C. Toms. By bis will, however, Marion C. Toms devised all bis title to and estate in said lot to tbe devisees named therein; there was no residue of said estate undevised wbicb would or could revert to him or to bis heir-at-law. There is no reversion or reversionary interest wbicb by operation of law or otherwise will pass to Charles French Toms upon tbe determination of tbe life estate of Mrs. Katie B. Toms. A reversion is defined as tbe residue of an estate left by operation of law in tbe grantor or bis heirs or in tbe heirs of a testator, commencing in possession on tbe determination of a particular estate granted or devised. Black’s Law Dictionary, page 1034; 21 C. J., 1016; 23 E. C. L., 1100; 2 Blk. Comm., p. 175. Tbe word “revert” used by tbe testator in bis will with respect to said lot upon tbe death of tbe life tenant, cannot be construed as determining tbe quality or character of tbe estate wbicb tbe testator provided therein for bis son, Charles French Toms. Tbe words “revert” or “reversion” are sometimes loosely used to describe an interest differing from a technical reversion. A reversion does not become a remainder, or a remainder a reversion because it is so called in tbe instrument creating it. 21 C. J., 1017.. Plaintiff’s contention that tbe use of this word by tbe testator clearly implies an intention on bis part that tbe fee, remaining upon tbe falling in of tbe life estate, shall pass to Charles French Toms in reversion as heir-at-law, and not in remainder as a devisee, is not well founded. Tbe word is manifestly used in tbe will in tbe sense of “pass” or “go” and not “return” for tbe testator devised tbe lot, after tbe death of bis wife, first to bis son, Charles French Toms, if be be alive, and second, if be be dead, to bis beirs-at-law and not to tbe *825heirs-at-law of the testator. *Whitehurst v. Gotwalt,*189 N. C., 577. The estate acquired by plaintiff under the deed from Charles French Toms, was not a reversion, which descended to him as heir of his father, or which passed to him under the will, but was a remainder in fee devised to him by the will of Marion C. Toms. Is such remainder vested or contingent during the continuance of the life estate of Mrs. Katie B. Toms now owned by plaintiff?

Tested remainders are defined by *Justice Walker*in *Richardson v. Richardson,*152 N. C., 705, as those by which the present interest passes to the party, though to be enjoyed in the future, and by which the estate is invariably fixed to remain in a determinate person after the particular estate is spent. A remainder is said to be contingent “when it is limited to take effect on an event or condition which may never happen or be performed or which may not happen or be performed until after the determination of the preceding particular estate in which case such remainder can never take effect.”

By his will, the testator gave the lot, upon the death of his widow, to his son, Charles French Toms, if he be alive; during the life of the widow the estate in remainder is not “invariably fixed” in Charles French Toms, with the right of enjoyment only postponed until the falling in of the life estate. He takes no estate under the will until the happening of the event provided therein for the vesting of such estate, to wit, his survival of the life tenant. If, upon the death of Mrs. Katie B. Toms, he be dead, he takes nothing; the lot in that event goes to his heirs, who will take the fee in remainder as purchasers under the will and not by descent from Charles French Toms. By virtue of the deed to her of Charles French Toms, plaintiff owns the remainder in fee, contingent upon Charles French Toms being alive at the death of Mrs. Katie B. Toms. Until the happening of the latter event it .cannot be determined whether plaintiff owns an indefeasible title in fee to said lot or not.

In *Allen v. Smith,*183 N. C., 222, the testator, after devising his. real estate to his wife for and during her natural life, provides that “at the death of my wife, if my son, Arthur E. Smith, should survive his mother, I give all my estate both real and personal to him during his life and at his death then to be equally divided among my children who then may be living — if any of my children should be dead, their heirs to inherit their share.” It was held that as Arthur E. Smith’s life interest was contingent upon his surviving his mother and that as he failed to survive her, such interest did not vest in him. The remainder was contingent upon his surviving his mother. In the instant case, if Charles French Toms is living at the death of Mrs. Katie B. Toms, under the will the remainder will then vest in him in fee simple. In no event is a life estate limited to him, and the rule in *Shelley’s case*does not apply. *826In tbe event that Charles-French Toms be dead at the death of Mrs. Katie B. Toms, such persons as are included within the class designated as his heirs, will take the remainder in fee, under the will.

It was error to hold that plaintiff has an indefeasible title in fee to the lot described in the statement of agreed facts and that the deed tendered by her to defendants will convey title in accordance with her contract. The judgment must therefore be

Reversed.