From tbe facts submitted, it appears tbat on 29 November, 1876, Henry Scbulken, owner of tbe property in controversy, conveyed same to Matilda E. Van Lear, tbe pertinent terms of said deed being as follows:
“To bave and to bold the same for ber own use and beboof during ber life, and after ber death to the lawful beirs of ber body wbo may be living at ber death, and to the issue of such child or children wbo may die before the said Matilda, so tbat the issue of such child or children shall represent bis or ber ancestor and take such share as such ancestor would bave taken if be or she bad been living at the time of the death of the said Matilda, and to their beirs and assigns forever.”
If, as plaintiff contends, this deed conveyed to Matilda Van Lear a fee-simple title under tbe rule in Shelley’s case, then, tbe ancestor of plaintiffs having acquired tbat title by proper deed, they are now tbe owners of tbe property, and defendant is making a wrongful claim.
If, however, as defendant contends, tbe -Scbulken deed only conveyed to Matilda Van Lear a life estate, remainder to her children, etc., then Robert Van Lear, a child of Matilda, and wbo has never parted with bis share, on tbe death of bis mother became tbe owner of one-third undivided interest in tbe lot, and tbe judgment of bis Honor must be upheld.
Tbe rule in Shelley’s cme is fully recognized in this State, and where the same properly applies it prevails as a rule of property, both in deeds and wills, and regardless of “any particular intent to the contrary otherwise appearing in the instrument.” Hampton v. Griggs, 184 N. C., p. 13; Wallace v. Wallace, 181 N. C., p. 158; Crisp v. Biggs, 176 N. C., p. 1; Robeson v. Moore, 168 N. C., p. 389.
Speaking to the rule and its application in Wallace’s case, supra, it was held, among other things:
“Whenever an ancestor, by any gift or conveyance, took an estate of freehold, as an estate for life, and in tbe same gift or conveyance an estate is limited, either mediately or immediately, to bis heirs or to tbe beirs of bis body as a class to take in succession as beirs to him, such words are words of limitation of the estate, and conveys the inheritance, the whole property to the ancestor, and they are not words of purchase.
“In order to an application of the rule in Shelley’s case, the words ‘heirs’ or ‘heirs of tbe body’ must be taken in their technical sense, or carry tbe estate to tbe entire line of heirs to bold as inheritors under our canons of descent; but, should these words be used as only designating certain persons, or confining tbe inheritance to a restricted class *776of heirs, the rule does not apply, and the ancestor or the first taker acquires only a life estate, according to the meaning of the express words of the instrument.”
And in Hampton v. Griggs, supra, where the subject was learnedly discussed by Associate Justice Stacy, it was further held as follows: “In construing a conveyance, with reference to the application of the rule in Shelley’s case, the general or paramount intent of the donor or grantor, in the use of the technical words 'heirs’ or 'heirs of the body’ should be first ascertained by construing the instrument as a whole, and, should his intent, so found, be that these words should be taken with their technical or legal meaning, this meaning will control any particular intent he may have otherwise expressed; but, should they be ascertained to have been used as denoting a particular class of persons to take in remainder, as distinguished from those who would take in indefinite succession under the rules of descent, that meaning will prevail, and the first taker will acquire only an estate for life, and the rule in Shelley’s case will not apply.”
Considering the deed in question here, we are of opinion that, although the property is conveyed to Matilda Yan Lear for life, and after her death to the lawful heirs of her body, these words are so qualified by what immediately follows, “who may be living at her death, and to the issue of such child or children who may die before the said Matilda,” as to show that the words “lawful heirs” are not intended in their usual sense as general inheritors under our canons of descent, but are used and intended in the sense of children and passing the estate among other to such of her children as should be alive at that time, and who would take under the Schulken deed as purchasers from the original grantor and not as heirs of their mother.
This, to our minds, being the clear meaning and intent of the Schul-ken conveyance, that instrument passed to Mrs. Yan Lear only a life estate, with remainder to her children living at her death, and to the issue of such as may have died, and on her death, defendant, her son, Robert, became the owner of one-third of the property, and he, never having parted with his interest, is asserting a rightful claim, as his Honor ruled.
In addition to the above authorities, the position finds support also in Blackledge v. Simmons, 180 N. C., p. 540; Puckett v. Morgan, 158 N. C., p. 344; Smith v. Lumber Co., 155 N. C., p. 389; Smith v. Proctor, 139 N. C., p. 322; Rollins v. Keel, 115 N. C., p. 68; Whitesides v. Cooper, 115 N. C., p. 570.
We find no error in the disposition of the case, and the judgment of the Superior Court is
Affirmed.