after-stating tbe case: Tbe plaintiff derives title to tbe land in question by devise from bis father, and, on tbe bearing, tbe title offered was properly made to depend upon tbe construction of item 6 of tbe will of James Yassar, which is as follows:

“I loan unto my son, Joseph J. Yassar, at my wife’s death (Mary L. Yassar) all tbe land loaned my wife, Mary L. Yassar, except 47 acres which is to go to John B. Yassar, and Hattie M. Yassar, to be taken off tbe west side next to tbe Egg Branch road, and if my son Joseph J. Yassar should die without bodily heirs, then in tbat event, it is my desire tbat tbe land loaned to him shall go to tbe rest of my children then living or their heirs.”

It appears from tbe record tbat Mary L. Yassar, widow of tbe testator, and who survived him, is now dead; and further tbat tbe plaintiff, Joseph J. Yassar, has two children, both of whom were living at tbe time tbe testator made bis will and who are still living.

It is conceded tbat unless tbe plaintiff, aided by tbe rule in Shelley's case, took a fee simple absolute to tbe land devised to him in item 6 of bis father’s will, subject only to tbe life estate of Mary L. Yassar, tbe title offered and conveyed by him to tbe defendant is only a defeasible fee. It is apparent from tbe language used in item 6 of tbe will, as above set out, tbat tbe rule in Shelley’s case has no application to tbe devise made to tbe plaintiff therein. Hampton v. Griggs, 184 N. C., 13.

Nor would a deed executed by tbe plaintiff and bis brothers and sisters convey a fee-simple absolute title to tbe land in question, because it cannot be known until tbe plaintiff’s death, “without bodily heirs,” as to who would take tbe ulterior devise under tbe designation, “tbe rest of my children then living or their heirs.” Mercer v. Downs, ante, 203.

Tbe record presents no reversible error, bence tbe verdict and judgment must be upheld.

No error.