Thе title offered depends upon the proper construction of the last will and testament of Jacob Maynаrd, deceased, devisor and former owner of.the property,.the items of the will appertaining to the questiоn presented being in terms as follows:
“I give and bequeath to my oldest son, James Maynard, after the death of my wife or thе termination of her widowhood, one-third of my land known as the Reedy Creek land, his lifetime only, and then to his body heirs.
“I give and bequeath to my oldest daughter, Penina Sorrell, after the death of my wife or the termination of her .widowhood, one-third of my land known as the Reedy Creek land, her lifetime only, then to her body heirs.
“I give and bequeath to my youngest daughter, Mary King, aftеr the death of my wife or the termination of her widowhood, one-third of my land known as the Reedy Creek land, her lifetime оnly, then to her body heirs.”
In this connection it appears that Jacob Maynard, devisor and former owner, died in 1910, making disрosition of the property in his last will and testament as above stated. That the three devisees, his only children and hеirs at law, survived the testator, and also his widow, Martha, *512 who is still living. That after the death of said testator, Penina Sorrell died without issue or will, and later, Mary King died, leaving three children as her heirs at law, her husband having died before her. That plaintiff has аcquired and holds the title to the jiroperty, subject to the life estate of the widow, by formal deeds from J. B. Hill, the latter having purchased and taken deeds in fee sufficient in form from James Maynard and from the three children of Mary King. Upon thеse facts plaintiff contends that its deed tendered to defendants will convey the entire title subject to the life estate of the widow.
Defendants contend that the title is defective in that, under the will of his father and by its true intent and meaning, Jаmes Maynard has only a life estate in the property, the devise being to “James Maynard for his lifetime only, and then to his bodily heirs.”
In numerous decisions of the Court, the rule in
Shelley’s case
has been recognized as existent in this State, and in cases calling for its application it is held that it prevails as a rule of property, overruling any particular intent to the contrary appearing in the instrument, deеd or will by which the same is created.
Hampton v. Griggs,
In the recent case of
Hampton v. Griggs, Stacy, J.,
delivering the opinion, said: “It is further conceded by practically all the authоrities that the rule in question is one of law and not one of construction, and that at times it overrides even the exрressed intention of the grantor, or that of the testator, as the case may he. But when this is said, it should be understood as meaning that only the particular intent is sacrificed to the general or paramount intent. It is not the estate which the ancestor takes that is to he considered so much as it is the estate intended to he given to the heirs. As said in
Baker v. Scott,
In Wallace v. Wallace it was held “That a limitation coming within the rule in Shelley’s case, recognized as existent in this State, operаtes as a rule of property passing, when applicable, a fee simple both in deeds and wills, regardless of a contrary intent on the part of the testator or grantor appearing in the instrument.” And a like ruling is approved in Nobles v. Nobles and Robeson v. Moore, supra.
In Robeson v. Moore: “It is established by repeated decisions of the Court that the rule in-Shelley’s case is still recognized in this jurisdiction, and where the same obtаins, it does so as a rule of property without regard to the intent of the grantor or devisor.”
Applying these princiрles, the devise in question to James Maynard for life and then to his bodily heirs, a fee tail under the old law converted by оur statute, section 1734, into a fee simple, clearly comes within the rule in Shelley’s case, and the first taker has a fee simple notwithstаnding the estate of the devise is said to be “for his lifetime only.”
The court below, therefore, has made correct ruling on the facts presented, and the judgment that defendants comply with their contract of purchase is
Affirmed.