devise is to B. and his children, if he have no children at the testator's death B. takes a fee simple, instead of an estate tail, and further (by virtue of our statutes), if there are children of B. at the testator's death, the father and children take as tenants in common, instead of joint tenants. Wheatland v. Dodge, 10 Metc. (Mass.) 502; Nightingale v. Burrell, 15 Pick. 104, on page 114; 3 Jarm. Wills, 174; Schouler, Wills, § 555, 556. This has always been the ruling in North Carolina, as was held in Hunt v. Satterwhite, 85 N. C. 74, citing with approval Wild's case and precedents in our reports; and Smith, C. J., adds that the interposition of a trustee is obviously to secure the property for the use of the mother and her children, and cannot change the construction of the devise. This case, in turn, was approved by Merrimon, J., in Hampton v. Wheeler, 99 N. C. 222 (6 S. E. Rep. 236), in which he cites the additional cases of Moore v. Leach, 50 N. C. 88; Chestnut v. Meares, 56 N. C. 416, and Gay v. Baker, 58 N. C. 344 (78 Am. Dec. 229), and states that the rule is clearly settled, and we need not advert further to it.'"

Sec. 276. Shelley's case. The rule prevails in North Carolina and is held to apply to a deed to persons named, "to have and to hold the same to their use during the term of their natural lives, and then to their heirs after them." Nichols v. Gladden, 117 N. C. 497 (23 S. E. Rep. 459). But it is held not to apply to a conveyance to P. for life, “and, at her death, then the same shall go and descend to the heirs of said P., which have been or may be begotten on the body of said P. by her present husband, the said L., to them, the heirs of said P. and L., their heirs and assigns forever." Dawson v. Quinnerly, 118 N. C. 188 (24 S. E. Rep. 483). Where the testator devised land to his son to have and hold “during the full term of his natural life, and, after his death" to go to the "heirs of his body, by him begotten, if there be any such heirs, him surviving," the rule was held not to apply and the son took only a life estate. Granger v. Granger, 147 Ind. 95 (44 N. E. Rep. 189; 36 L. R. A. 186). It applies to a devise of land to a testator's daughter "during her natural life, and at her decease to be equally divided between the heirs of her body," the words "equally divided "not having the effect of

changing the words "heirs of her body" into words of purchase. Holt v. Pickett, 111 Ala. 362 (20 So. Rep. 432). A devise in trust of a beneficial interest for life, subject to the discretion of the trustee, with power in the beneficiary to direct its disposition by will after his death, and in default thereof to his heirs at law, is within the rule and carries an equitable fee in the estate held by the trustee, and when it appears that there is no reason for retaining the trust the beneficiary is entitled to a conveyance of the legal estate. Cowing v. Dodge, 19 R. I. 605 (35 Atl. Rep. 309).

Sec. 277. Creation of life estates. The addition of the power of disposal to an express devise of a life estate does not enlarge the estate to a fee simple. Evans v. Folks, 135 Mo. 397 (37 S. W. Rep. 126); Wooster v. Cooper, 53 N. J. Eq. 682 (33 Atl. Rep. 1050). A provision in a will that the testator" loans certain real estate to his wife, during her natural life creates in her a life estate. Robertson v. Hardy's Adm'r, Va. (23 S. E. Rep. 766). A devise by a testator to his wife of a "brick store building" situated on certain described lots, "and the proceeds arising therefrom, and all the loose property, at her death it goes to my daughter, A." is held to give the wife only a life estate in the property. Rice v. Moyer, 97 Ia. 96 (66 N. W. Rep. 94). A will devising "all the rest and residue of my estate, both real and personal, and wherever situated, I give, devise, and bequeath to my said wife, to be used and appropriated by her, as much as she may wish for her happiness, without any restrictions or limitations whatsoever; and upon the decease of my said wife, and after the payment of all her debts and the settlement of her estate, I give, devise, and bequeath whatever of property or estate of such residue and remainder shall remain undisposed of at the decease of my said wife," to A. as trustee to distribute as directed, was held to give the wife a life estate only. Mansfield v. Shelton, 67 Conn. 390 (35 Atl. Rep. 271; 52 Am. St. Rep. 285). Where a testator's devise to his wife recites that it is "to go" to her " during her natural life time; she to have the entire control of the same;" and repeats that it is "to go to her, for her to have the full control of the same as long as she lives," * "and after her death what

is left to go to A. W. C. and L. B. and her children," it is held that the widow takes a life estate, without any power of disposition and by the words "what is left" the testator intended to include in the bequest over the entire property which should be in the hands of the life tenant at her death, whether it had been diminished by losses or increased by profits, or whether it consisted of personal property, or had been invested in real estate. Bramell v. Cole, 136 Mo. 201 (37 S. W. Rep. 924; 58 Am. St. Rep. 619). In construing a will providing that "after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath, and dispose of as follows, to-wit: To my beloved wife, certain described real estate and all of my personal property subject to certain debts; "the balance of

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my estate I will to my wife during her natural life." "At her death she may will one-half of the estate to whom she will," it was held that it appearing that the testator owned no other real estate than that described in the first devise to his wife, the words "balance of my estate " referred to this land, and the widow's interest was limited by the last clause to a life estate in the whole with power to dispose of half of it by will. Lomax v. Shinn, 162 Ill. 124 (44 N. E. Rep.

495).

A devise to the testator's son, "and after his decease said real estate to belong to his heirs," gives the son only a life estate with remainder to his heirs which they take as purchasers under 2 How. Ann. Mich. Stat., § 5544. Defrees v. Lake, 109 Mich. 415 (67 N. W. Rep. 505; 32 L. R. A. 744). A devise by a testator to his son to have and hold "during the full term of his natural life, and after his death" to go to" the heirs of his body, by him begotten, if there be any such heirs, him surviving," and if no such heirs exist, to go to another, gives the son only a life estate. Grangar v. Granger, 147 Ind. 95 (44 N. E. Rep. 189; 36 L. R. A. 186). Under Ill. Rev. Stat., ch. 30, § 13, providing that "every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by con

struction or operation of law," it is held that a residuary devise by a testator to his son of all his property, “ and in case of his death without leaving heirs of his own, the whole shall then revert to my heirs; but should he have heirs of his own body at his decease, they shall share equally with the rest of my heirs," vests only a life estate in the son. Thomas v. Miller, 161 Ill. 60 (43 N. E. Rep. 848).

A devise giving to the testator's sister "all the estate of which I may die possessed, for her sole use and benefit during her natural life, and, after her death, I direct division as set out in clause three," gives the sister a life estate. Smith v. Runnels, 97 Ia. 55 (65 N. W. Rep. 1002). A devise by a testator to his daughter R. "to be held and enjoyed by her during her natural life, and after her death to be equally divided among her children, if she shall leave children, and, if not, then to be equally divided among my other children, to be held by them in the manner before described," was held to create an estate in R. for her life with remainder to the testator's other children, contingent upon the death of the life tenant without children her surviving. Rosenau v. Childress, 111 Ala. 214 (20 So. Rep. 95). Where a testator provided for a division of his property among his children when they should become of age or marry, and if the executor should sell the estate before such times, then upon either of the children arriving at age or marrying they should be entitled to their distributive interest, and that "the portion that either of my daughters may be entitled to the term of her natural life, and bequeath the same to such issue of her body as may then be living, it is held that the daughter took only a life estate whether the estate was divided with or without a sale. Wood v. Wood, 45 S. C. 590 (23 S. E. Rẹp. 950). Particular instruments construed and held to create a life estate. Verhine v. Ragsdale, 96 Tenn. 532 (35 S. W. Rep. 556); Campbell v. Noble, 110 Ala. 382 (19 So. Rep. 28).

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I give to her during and at her death I give

Sec. 278. Conveyance of life estate. A life estate is alienable. Ridgely v. Cross, 83 Md. 161 (34 Atl. Rep. 469). A remainderman may ratify a conveyance of the fee by the life tenant by receiving the proceeds thereof and acquiescing

in the possession of the grantee. Town of Ansonia v. Cooper, 66 Conn. 184 (33 Atl. Rep. 905). Construing an instrument executed by a remainderman to a life tenant empowering her to lease the property " for and during such term or terms of years as to her may seem meet and proper, and to such persons as she may deem proper: provided, that no such term or terms of demise shall exceed the period of 15 years, and shall contain no clause of renewal," and that "nothing herein contained shall be so construed as to authorize such life tenant to lease, demise or convey the said premises, or any part thereof, for any longer period than 15 years," etc., it was held that if she survived the expiration of the lease for one term of 15 years she could execute another for a like term; but a lease by her to begin in the future was void and was not validated by the fact that she was living at the future date at which such lease was to begin. Taussing v. Reel, 134 Mo. 530 (34 S. W. Rep. 1104).

Sec. 279.

Conveyance of life estate-Rights of grantee assuming incumbrance. Where, as a part of the consideration for a conveyance by a life tenant of his estate, the purchaser agrees to extinguish certain outstanding certificates of a foreclosure sale of the lands, he cannot, by taking an assignment thereof afterward obtain a sheriff's deed and assert such title against the remainderman, nor can he enforce contribution against him by showing that he thought he was obtaining the fee by the conveyance from the life tenant, the latter's estate appearing clearly of record. Marshall, J., dissenting. Melms v. Pabst Brewing Co., 93 Wis. 140 (66 N. W. Rep. 244).

Sec. 280. Rights of life tenant and remainderman. The estate of one who has only the right to the rents and profits of lands terminates at his death. Sidway v. Nichol, 62 Ark. 146 (34 S. W. Rep. 529). The tenant or owner of an estate, during life or widowhood, as a rule, cannot waste or encroach upon the corpus, but is limited to the enjoyment of the income and profits; however, this rule is not of universal application, and the life tenant may, under some circumstances and when necessary, be allowed to encroach upon the