On 5 December, 1908, R. C. Cherry, by his last will and testament, which has been duly probated and filed, provided in Item 4 of his will: “I devise and bequeath unto my two beloved daughters, Sadie Doe Cherry and Madge Belle Cherry, as tenants in common, the two lots owned by me in the town of Washington (here followed the description of the same), but this devise is made upon condition that-if either of my said daughters shall die without leaving lawful issue, then in such event her interest in the said two lots shall immediately vest and go to her sister that survives her, and it is further provided and made a condition of this devise that if both of my said daughters shall die without leaving lawful issue, then it is my desire, and I devise the two said lots to my three sons mentioned in the third item of this my last will, to be equally divided between them or among their heirs, per stirpes and not per capita.”
The guardian ad litem alleged in his answer that Ethel Cherry, only child and prospective heir at law of Macon L. Cherry, has a contingent or prospective interest or expectancy under the will of R. C. Cherry, especially in view of the contingency, which might arise upon the death of Sadie Dot Cherry and Madge B. Cherry, without issue of either; that the contingent or prospective interest of the said Ethel Cherry, under the will of R. C. Cherry, ought to be preserved by the court. Sadie Dot Cherry and Madge B. Cherry are minors, without issue at the present time.
The three sons, who are defendants, have answered and released any *6interest in the property, and filed consent to a decree to that effect. The devise being upon the condition that if both daughters die without leaving lawful issue, then the said two lots are devised to the three sons, the estate therefore to the daughters is defeasible in event of the death of both the devisees without issue, and does not become indefeasible upon the birth of issue. Kirkman v. Smith, 174 N. C., 605; Rev., 1581.
The remainder to the three sons, however, was not made defeasible, but was vested absolutely in them, and they would be estopped, and their heirs also, by the release and the answer in this case. This would be true if the remainder had been to them and their heirs. Rees v. Williams, 165 N. C., 201. This is in no wise changed by the use of the words “their heirs per stirpes and not per capita,” which indicates merely the division of the remainder between them, and as all three joined in the release all the heirs would be estopped.
Affirmed.