This case has been heard by this court before. The opinion is reported in 9 N.C. App. 427, 176 S.E. 2d 381 (1970). On that appeal it was held that it was error, in this action to remove a cloud from title, for the trial judge to take the case away from the jury and enter judgment in favor of plaintiffs, *720who had the burden of proof, without permitting the defendants to introduce any evidence.
The judgment on this appeal was entered after notice and after the hearing on plaintiffs’ motion for summary judgment under Rule 56. At this hearing the parties offered their evidence and made certain stipulations. When the evidence and stipulations are considered, it is apparent that there are no disputed material issues of fact in this case. The principal legal question arises as to whether Rosa Petty Faust in 1942, under the terms of the will of I. H. Faust, deceased, and after her marriage to Jacob Long, could convey a fee simple title to the lands in question.
The pertinent provisions of the will are:
“I give devise and bequeath to my beloved wife Rosa Petty Faust all my property real and personal including all chattels, insurance, lands or property of any kind whatsoever to be used for her benefit or the benefit of our beloved foster son Jack Faust in whatsoever way to her seems best with the right and privilege to dispose of any or all of the personal property or real estate either privately or at public auction, should she my said wife deem it best for her own or the welfare of our foster son, Jack Faust.
It is my will that my beloved wife shall at any time she thinks best after our foster son, Jack Faust, reaches the age of twenty one years deed or give to him any part of our estate she deems proper and that after the death of my said wife Rosa Petty Faust all the residue of my estate both real and personal shall become the property of our said foster son Jack Faust to have and to hold to him, his heirs and assigns for ever.”
' When the appropriate basic rules of law are properly applied, we hold that the trial judge did not commit prejudicial error in entering the judgment in this case.
Affirmed.
Judges Parker and Vaughn concur.