majority"> Smith, C. J.,

(after stating the facts):

I. The plaintiffs, after objection, were allowed to prove declarations of said Barsheba in reference to her having money and other property of the feme plaintiff in her hands.

No prejudicial result came to the defendant from the admission of the evidence, since with it, the verdict upon the-issue to which it was applicable, is against the plaintiff.

II. The Court refused to let the jury hear the testimony of the defendant Cornelius as to what passed between him and his wife about the payment of the purchase money,, and whence it was derived — their object in making the pur- *498 díase — and the directions given the attorney in drawing the deed.

The proof offered on the first point was sufficient, -without this in corroboration rejected, to satisfy the jury that the fund so used did belong to them, and such is their finding upon that issue.

No detriment has thereupon come to the appellant and its reception would have been of no advantage.

The proof, so far as it tended to show a mistake in the form of the deed in disposing of the remainder, was incompetent, if for no other reason, because there was no issue to which it was pertinent, and if pertinent, it would have been insufficient to warrant a verdict upon which the Court would feel authorized to act in ordering a reformation of the instrument.

The construction of the concluding words in the declaration of trusts, was then presented to the Court in the opposing demands of the parties for judgment.

The case of Patrick v. Morehead, 85 N. C., 62, establishes the doctrine which gives but an estate for life to the said Barsheba, not enlarged by the power to designate to whom the inheritance shall go at her decease. The failure to exercise the power, does not enlarge the estate given, but brings into operation the clause that in such contingency, limits the remainder “to the proper heirs at law of the said Barsheba Trueblood.”

These are to be ascertained by inquiring who would be her heirs, to whom, if she had been given an estate of inheritance, it would descend at her death. Those answering the description at that period would be the persons designated in the deed. It is not a present limitation to the heirs of a living person, so as to come within the words of the act of 1856 — Rev. Code, ch. 43, §5 — and to mean children, but a contingent limitation to such persons as sustain the relation to the deceased at the time of her death. These take not *499 under her, but under the deed, as remainder-men. There was, therefore, no estate to be prolonged in the defendant as tenant by the curtesy, and the contingent interest in the remainder, at once upon her death without exercising the power of appointment, became vested and certain.

It does not appear that all the heirs at law of the trustee are before the Court, three only of whom have been served with process, and these do not answer. Nor does it appear that publication has been made for such as are non-residents. The absence of those not legally brought into the cause, and whose presence is necessary to give jurisdiction, prevents any decree for a conveyance of the legal title.

But as the right of possession of an equitable estate in the feme plaintiff and the defendant Gallop, will support an action for possession, and this, without damages, is the effect of the judgment rendered, it must be sustained.

There is no error entitling the plaintiff to a new trial, nor can he demand judgment upon the verdict. The judgment is affirmed.

No error. Affirmed.

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