The will of W. A. Eerrier, which we are called upon to construe, from its language seems to have been drawn inops con silii.-In the first item is: “I give and bequeath unto my beloved wife Elizabeth all my real and personal property.”
Immediately after W. A. Berrier’s death, 3 May, 1902, David T. Berrier lived at the old home place, a part of which place (48% acres) is now, by warranty deed from David T. Berrier, claimed by defendant who is in possession of same. Elizabeth Berrier lived there about a year and then went and lived with plaintiff and lived with her continuously until her death, 27 March, 1924 — over 20 years. The division deed from plaintiff and others to David T. Berrier, made 19 October, 1904, described his part of the land, under item 2 of the will, by metes and bounds, and included the locus in controversy. "We think if Elizabeth Berrier had a fee-simple title under the will, at her death, plaintiff,- one of her heirs at law, or the others who signed the deed, could not now claim the land in controversy as heir to the mother. The deed from plaintiff and others (with full covenants of warranty), under the facts and circumstances of this case, operates as an equitable estoppel against the parties and privies. Plaintiff and the other heirs at law took under the will as did their mother, Elizabeth Berrier, from the same common source — W. A. Berrier. In the division of the land under the will it was construed and plaintiff and the other devisees so acted, and their mother, Elizabeth Berrier, for over 20 years so acted, as if no estate in fee of the locus in controversy under the will was devised to Elizabeth Berrier. The plaintiff and other devisees took under the will contrary to a fee in Elizabeth Berrier, and neither plaintiff nor the devisees can now claim as heirs of law of their mother. They cannot “blow hot and cold in the same breath.” Any other view would be inequitable and unconscionable.
Plaintiff or the other devisees cannot take inconsistent positions. “Upon a principle similar to that applied to persons taking under wills; beneficiaries under a trust are estopped, by claiming under it, to attack any of its provisions. . . . So, also, one who accepts the terms of a deed or other contract must accept the same as a whole; one cannot accept *626part and reject the rest.” Bigelow on Estoppel, 6 ed., p. 744. Fort v. Allen, 110 N. C., 191; Chard v. Warren, 122 N. C., 86; Freeman v. Ramsey, 189 N. C., 790.
“Where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title, or right, he cannot afterwards assume a position inconsistent with such act, claim, or conduct to the prejudice of another.” 16 Cyc., p. 785; Holloman v. R. R., 172 N. C., p. 376.
The $225 plaintiff claimed she never received under item 2 of the will, if she did not waive this by the division deeds, she has no claim on defendant — the grantee of her brother.
Plaintiff, in her brief, says: “Is plaintiff, appellee, estopped to claim the land by her deed to David T. Berrier?” We do not think the principle contended for by plaintiff, from the view we take of the language in the will and intent of the testator, applicable here. We cite the authorities in the carefully prepared brief of her counsel: “A grantee in a partition deed is not estopped to set up an after-acquired title. . . . The fact that there are covenants of'warranty in a partition deed do not change the estate conveyed, ■ and therefore, do not create an estoppel.” In Coble v. Barringer, 171 N. C., 449, it is said: . . . “The office of a covenant of warranty is, of course, not to enlarge or curtail the estate granted in the premises of the deed, but the covenant is intended as an assurance or guaranty of the title. Huntley v. Cline, 93 N. C., 458; Williams v. Lewis, 100 N. C., 142; Harrison v. Ray, 108 N. C., 215; Jones v. Myatt, 153 N. C., 230; Weston v. Lumber Co., 162 N. C., 165; Stallings v. Walker, 176 N. C.,. 321; Walker v. Walker, 185 N. C., 385.” See, also, Bradford v. Bank, 182 N. C., p. 230.
The general principle of covenants, not discussing partition deeds, is stated in Baker v. Austin, 174 N. C., 434, citing numerous authorities, as follows: “ ‘Where a deed is sufficient in form to convey the grantor’s whole interest, an interest afterwards acquired passes by way of estoppel to the grantee.’ . . . The general rule is thus stated in 16 Oyc., 689, with full citations in the notes: ‘If a grantor having no title, a defective title, or an estate less than that which he assumed to grant, conveys with warranty or covenants of like import, and subsequently acquires the title or estate which he purported to convey, or perfects his title, such after-acquired or perfected title will inure to the grantee or to his benefit by way of estoppel.’ ”
Ordinarily, “we hear and determine a case here according to the theory upon which it was tried in the court below.” Coble v. Barringer, 171 N. C., p. 447, and cases cited.
The case was tried out on the theory as set forth in plaintiff’s brief: ' “Where the will or deed provides for a forfeiture in ease of breach of *627condition, the relief to which the grantee or heirs of devisee is entitled is the recovery of the property. The court will, in so far as it is possible, construe a will according to the intent of the testator. Here these two children were given a larger portion of the estate, and were charged with the support of the mother. The penalty for a failure on the part of either was not left to be found by the court, but was provided in the will — the loss of the land and for the land to go to 'some one who will care for her! ”
Defendant contends that “the designation of the person to take over is too indefinite.” It is not necessary to discuss this question in the decision of the case. The principle is laid down in Thomas v. Clay, 187 N. C., p. 783, and cases cited, which hold: “It is well established by an unbroken line of decisions that there must be found within the terms of the declaration of trust a cestui que trust, and if there is no certain and complete beneficiary named who may come into a court of equity and claim and establish their right to the fund and to the trust, it will be void for uncertainty. 25 R. C. L., 1189, and eases cited, among others Witherington v. Herring, 140 N. C., 497.” Hester v. Hester, 37 N. C., 330; Bridges v. Pleasants, 39 N. C., 26; Weaver v. Kirby, 186 N. C., 387; Ragan v. Pagan, 186 N. C., 463.
The main and vital contest in this action depends on the meaning of the following words in the will: “For them both to see that their mother don’t suffer their care, if either of them fail to talce care of her for their part to go to some one who will care for her.”
It is clear that the husband, W. A. Berrier, though awkwardly expressed, did not want his wife to suffer during her life and her care was left to both plaintiff and David T. Berrier, grantor of defendant. “If either fail their part to go to some one who will care for her.” Plaintiff contends that she cared for her mother and her brother and his assignee did not, and therefore, David T. Berrier and his assignee, the defendant, was divested of the title to the land. That the language in the will was a condition subsequent, and her brother having failed to care for her mother, and she having done so, the condition was broken and she was entitled to the land. It is certain by dividing the 200 acres of land between plaintiff and her brother, David T. Berrier, the testator, W. A. Berrier, providing homes for both his children, indicated that both could not give personal care to his wife — both were charged with their mother’s care. His wife could not be in two places at the same time, be with his son and daughter both. The liberal and reasonable construction of the intent of testator, in our opinion, was that the land of the one who did not care for her would be charged with the proportionate part of her care. If both failed her, anyone who had *628to furnish her care would receive their part — the part of both, rent and land, could be subjected to her care and support. Elizabeth Berrier, the wife, had the right to a sufficient sum out of the rent and land for her reasonable care and support. Plaintiff, in taking her mother to live with her, did nothing more than she was bound to do. She, under the will took her land cum onere with the burden to help care for her mother. After taking the mother she could then call upon her brother to contribute his part.
1 Tiffany Real Property, 2 ed., sec. 80, says: “On the principle of hostility to conditions, before referred to, a condition precedent is construed strictly in favor of vesting the estate, while a condition subsequent is construed, strictly against divesting the estate(Italics ours.)
3 Thompson on Real Property (1924), sec. 1970, says: “Conditions subsequent are not favored in law. When the terms of the grant will admit of any other interpretation they will not be held to create an estate on condition. If no words of condition are used, and no words indicating an intention that under any circumstances the estate may be forfeited, or may revert to the grantor or his heirs, or that he or they may reenter and hold the land, and there is nothing in the nature of the acts to be done by the grantee indicating that the estate is to be held upon condition, the deed will be held to convey an estate to the 'grantee and his heirs forever. The deed will not be held to create an estate upon condition, unless the language to that effect is so clear as to leave no room for any other construction. Thus, where parents conveyed land to their son, reserving to themselves a life estate, and stating in the deed that such son Is to pay the taxes on said land, and has to support the grantors during their natural lifetime, and at their death the son shall have possession,’ the land was not conveyed upon a condition subsequent, because no words of condition were used, and there was no clause of reverter or reentry, and no intention to create a strict condition can be gathered from the whole instrument. £To say the stipulation in the deed to pay the taxes and support the grantors is a condition subsequent, the nonperformance of which will defeat the estate granted, is to make a stipulation for the parties which they did not see fit to make for themselves.’ ”
Plaintiff and defendant’s grantor took possession of the land under the will with the burden. They both became bound to care for their mother. The title was vested — there was no condition subsequent. Courts will always construe clauses like the present one,- if they can reasonably do so, as a covenant and not a condition, so as to avoid a forfeiture.
3 Thompson, supra, part see. 1976, is as follows: “Upon covenants, the legal responsibility of their nonfulfillment is, that the party violating them must respond'in damages. The consequence of the nonfulfillment *629of a condition is a forfeiture of the estate. The grantor may reenter at his will and possess himself of his former estate.”
We think the position here taken is fully borne out by the decisions of this State. McNeely v. McNeely, 82 N. C., 183; Helms v. Helms, 135 N. C., 164; rehearing, 137 N. C., 206, and cases cited; Lumber Co., v. Lumber Co., 153 N. C., 49; Fleming v. Motz, 187 N. C., 593, and cases cited. The distinction between a covenant, which constitutes a charge on the land, and a condition subsequent, which works a forfeiture, is fully set forth by Walker, J., in Brittain v. Taylor, 168 N. C., p. 271. It is further discussed by the same painstaking judge with a wealth of authorities, in Hinton v. Vinson, 180 N. C., 393. See, also, Hall v. Quinn, ante, 326; Shields v. Harris, ante, 520.
In construing the will to ascertain the intention of the devisor, we think that the will did not create a condition subsequent, and the language in no sense, from the facts and circumstances of this case, gave plaintiff the right to recover the land.
Defendant in his answer set up estoppel, as follows: “There was a charge made upon two hundred acres of land, devised to plaintiff and David T. Berrier, with certain provisions in said will for the care of their mother, which provisions appear by reference to said will, and that ever since the said deed was executed to David T. Berrier (this is a mistake from record — David T. Berrier took care of her at old home place about one year, then defendant), defendant has paid each year to the plaintiff such sum- as the plaintiff found necessary and proper for him to pay for the care of her said mother, and also paid her doctors’ bills, and has fully and amply compensated and settled with the plaintiff for any care her mother was to her, which sums the plaintiff has at all times accepted and received as in full settlement of such care and doctor bills, and the plaintiff is thereby estopped, as well as by her said deed, to make any further claim on account of the said matters referred to in the complaint.”
From the construction given of the will that the language was a covenant, the acceptance by plaintiff and her brother, David T. Berrier, of the land, was an agreement to care for their mother. This, as before stated, was a charge on the land. It is not disputed that plaintiff fulfilled her covenant under the deed and cared for her mother. The plaintiff in the complaint demanded judgment for the land and if estopped by her deed to recover the land then for judgment for a certain amount named for the care of her mother to be declared a lien on the land. This amount could only be recovered, if at all, from David T. Berrier and his assignee, the defendant Adam L. Sink, for David T. Berrier’s covenant in accepting the land with the charge on his portion to care for his mother. From *630the entire record we think plaintiff cannot now recover from David T. Berrier or his assignee, the defendant, Adam L. Sink. The undisputed facts are: W. A. Berrier died 3 May, 1902. Elizabeth Berrier died 27 March, 1924. At the death of W. A. Berrier, his wife, Elizabeth Berrier, lived with David T. Berrier about a year and then she went to live with plaintiff and lived with her until her death. She lived with plaintiff over 20 years. During all those years plaintiff never demanded of her brother, David T. Berrier, or his assignee, Adam L. Sink, more than the amount paid her or indicated in any way that any claim would be made for a larger amount. The mother, the real beneficiary, made no demand.
After plaintiff had taken Elizabeth Berrier to live with her, she being liable for her care as well as her brother, .David T. Berrier, she made a deed with the other heirs interested in the land to David T. Berrier for 100 acres, his half, of the land, by metes and bounds and in the deed signed by her, in the covenant clause, after reciting that they were seized of said premises in fee, “except the interest of Mrs. Berrier under the will.” This same language is used in the deed from David T. Berrier to defendant for 48% acres of land of the 100 acres charged with the care of Elizabeth Berrier. Plaintiff testified that defendant, Adam L. Sink, gave her a check for $25 a year. In all he gave her $500 or $600, “he paid in the time he had the land until mother’s death.” “He paid me $25 and did get up some checks as high as $40. Never more than $40 a year. After the war in 1919, when times went up higher, he got up a little higher.” She could read and write and signed her name on the orders — as set forth in statement of this case. Defendant kept a grocery store and plaintiff traded a good deal at the store. David T. Berrier sold 51% acres of the 100 acre tract, that had the charge on it to care for his mother, to R. L. McCrary. Plaintiff made no claim on him. “I never asked defendant for anything. He paid me some money every year. Paid the rent. The last check was $60. He paid $50 at one time and $40 at one time.” She denied that she agreed with defendant to take $25 a year to take care of her mother.
Defendant testified that after he bought the land he had an agreement with plaintiff to assist in taking care of Elizabeth Berrier, $25 in advance each year. That for 19 years he paid what was required of him. He never paid any rent on the land, but for his part of her mother’s expenses. David T. Berrier and W. E. McDonald corroborated defendant. The rental value of the land each year, according to defendant and several witnesses, was $25 a year. Plaintiff testified it was more. The disputed evidence is recited to show the controversy as to the purpose of payment. Elizabeth Berrier died 27 March, 1924. Plaintiff, who could read and write admitted receiving and endorsing the following:
*631A. L. Sink, Grocer. No. 482.
Lexington, N. C., January 19, 1924.
Pay to tbe order of Bettie Cooke $60.00.
For mother’s support in full — paid to January, 1925. A. L. SiNK.
To Commercial & Savings Bank, Lexington, N. C.
(Endorsed by Bettie Cook, W. H. Berrier.)
Elizabeth Berrier died 27 March, 1924. Her support was paid in advance for the year. The language of the order was clear and explicit.
Under all the facts and circumstances of this ease, we think plaintiff estopped by her acts and conduct to now claim defendant owes her anything. If she had rights, they have been abandoned and relinquished by her conduct — clearly indicating such purpose. She acquiesced in the payments for 19 years and the final amount paid her and receipt order endorsed by her “for mother’s support in full — paid to January, 1925.” We think the case comes under the principle of DeLoache v. DeLoache, 189 N. C., 394, where Mr. Justice Varser has ably digested the opinions of this Court on this character of estoppel. At p. 398 the Court says: “When the plaintiff accepted the check with the statement written thereon that it was in full settlement and then cashed the check, he is bound thereby.” Refining Corp. v. Sanders, ante, 208.
The record discloses that plaintiff for over 20 years took tender care of her mother who died at an advanced age of 88 years. The burden was oneroüs and exacting — no higher duty can a child perform than that done by this plaintiff for her mother. Her reward is in the commandment: “Honour thy father and thy mother: that thy days may be long upon the land which the Lord thy God giveth thee.” This duty she would no doubt have performed alone to this parent, but her father’s will gave this tender care to her and her brother and charged certain property left them for this purpose. The defendant, her neighbor, bought her brother’s property with her brother’s charge on it, and each year he paid plaintiff what she asked, and the last order of payment was “for mother’s support in full,” which she received and signed for.
We think, the defendant’s assignment of error, as follows, should have been granted: “That the court refused at the end of all the evidence to dismiss the action, and for judgment as of nonsuit. The defendant having renewed his motion.”
For the reasons given, the judgment below is
Eeversed.