The first question raised by the defendant’s exceptions is, was there error in His Honor’s ruling, that the devisees under the will of Tsaac Wright took an estate de-feasible upon their death without issue, substantially a life estate, and that upon the death of all the devisees, without issue, except W. C. Monroe, the whole estate survived to him.
In our opinion, this ruling is erroneous. The will of Isaac Wright was proved, and administration taken on his estate prior to the act of 1869 ; and the act of 1868-9 (Bat. Rev., ch. 46, § 156) does not apply. The estate is to be dealt with and settled under the lav/ as it existed prior to the first of July, 1869.
The clause which has given rise to this contest is set out in the statement of the case, and the proper construction of the will is, that it gives to the devisees an estate in common in fee, defeasible upon the death of either of them in the lifetime of the testator, without a child, and upon the death of either before that of the testator, his or her interest goes to the survivors.
We are fully sustained in this construction by the decision in Hilliard v. Kearney, Busb. Eq., 221. The clause in the will for construction in that case was, “I give to my wife for her life, &e , and after her death, the said negroes and their increase to be equally divided among my five daughters (naming them), and if either of them die without an heir, her part to be equally divided among her other sisters.” Chief Justice Pearson delivered a long and elaborate opinion in the case, and announced the doctrine that “ if there be no intermediate period, and the alternative is either to adopt the time of the testator’s death, or the death of the legatee, generally, at some time or other whenever it may happen, as the period when the estate -is to become absolute, the former will be adopted, unless there be words to forbid it, or some consideration to turn the scale in favor of *470the latter.” And this decision was cited and approved in Davis v. Parker, 69 N. C., 271. The Chief Justice seems to have overlooked the fact that there was an intermediate period in the Hilliard-Kearney case, but that does not affect the principle announced, nor did it effect the result in that case, for the legatee about whose interest the contest arose, died childless after the death of the testator’s wife.
In our case it can make no difference whether the contingency of dying without child is referable to the death of the testator .or that of H. A. Monroe, the tenant for life of one of the tracts of land, for all of the devisees except Eliza J., survived him, and the estates of the three survivors became absolute at his death, if not at the death of the testator; and the interest of Eliza, who died in the lifetime of the testator, survived to them instead of lapsing to the heirs of the testator, for the devisees took the estate devised, as tenants in common; and when that is so, and a clause of sur-vivorship is inserted, by legal construction it must be considered as having been added to prevent a lapse, in case any of the legatees should happen to die during the life of the testator or the tenant for life, as the case may be. Cox v. Hogy, 2 Dev. Eq., 121; Hilliard v. Kearney, supra.
The construction we have given to the clause of the will in question, disposes of the other exceptions, and leads to the conclusion that there is error in the third and fifth rulings of His Honor.
Our conclusion upon the whole case is, that none of the lands devised to the children of Lucy G. Monroe, which were sold by them more than two years after the qualification of the first administrator, H. A. Monroe, and none of such as were sold by said devisees within the two years, and sold after that time by their vendees to purchasers for value and without notice, are liable to be sold by the administrator to make assets for the payment of the debts of the testator. Badger v. Daniel, 79 N. C., 372.
This construction exempts from liability to be sold by the *471administrator, the lands purchased by W. V. B. Smith from Isaac W. Monroe; those purchased by Hendrick & Ryan at execution sale, as the property of Adolphus and Isaac Monroe, and afterwards sold bv their vendee to Clark and Sutton; and the other lands of Adolphus and Isaac, which were mortgaged by them to H. A. Monroe and sold under a decree of foreclosure to W. A. Savage.
This leaves the land sold by Hedrick & Ryan to Daniel Miller, and remaining in the hands of his heirs at the time of the institution of this proceeding, liable to be sold by the administrator.
Of course if there are any of the lands devised to the children of Lucy G. Monroe, which have not been disposed of by them or their heirs, or were conveyed by them within the two years, and are remaining in the hands of such ven-dees, who purchased within that time, they are liable.
The cause is remanded to the superior court of Bladen county, that further proceedings may be had according to law and in conformity to this opinion.
Error. Modified and cause remanded.