The opinion
Brown, J.,
dissenting: I agree to the opinion of the Court as far as it holds that the will of Tilghman Holland and wife, Sarah, does not create an estate by entireties in Jeremiah Rhyne and his wife, Ruth. The context of the will plainly shows that it was intended that they should hold their several interests — whatever that interest may be — separate and distinct. But I cannot agree to the proposition that under the terms of the will Ruth Rhyne took an estate in fee under the operation of the rule in Shelley's case.
The language of the will is: “We give and bequeath unto our beloved son-in-law, Jeremiah J. Rhyne, and our beloved daughter, Ruth A. Rhyne, all our real estate (describing it). We want, after Ruth Rhyne’s death, the land to be divided equally between Jeremiah J. Rhyne and the heirs of Ruth A. Rhyne’s body.”
It is to my mind perfectly plain, by the use of the words, “heirs of Ruth A. Rhyne’s body,” the testator meant the issue or children of Ruth A. Rhyne, and that he intended that his daughter should have her portion of the land during her lifetime, and after her death that it was to be divided between her children and her husband — that is to say, the children taking one-half and the husband taking one-half. - It is a cardinal principle in the construction of wills to so construe them as to effectuate the plainly expressed intention of the testator. Where this intention is manifest, technical rules of law must give way. Triplett v. Williams, 149 N. C., 394 . McCallan v. McCallan, 167 N. C., 310 .
I think, under our decisions, the rule in Shelley's case is prevented from applying by the provision that the land is to be divided equally between Jeremiah Rhyne and the heirs of Ruth A. Rhyne’s body after her death.
*727 In tbe recent ease of Haar v. Schloss, 169 N. C., 228 , in referring to the effect of sncb a provision in a will, Mr. Justice Allen says:
“In Mills v. Thorne, 95 N. C., 364 , wbicb is affirmed in Gilmore v. Sellars, 145 N. C., 283 , it was said that ‘In England, ever since the leading-case of Jepson v. Wright, 2 Bligh, 1, it has been held that the words, “equally to be divided,” or “share and share alike,” superadded to limitations to the heirs of the body, etc., do not prevent the application of the rule. But in this State it would seem that the superaddition of like words.to the limitations to the heirs, or heirs of the body, or issue, do prevent the application of the rule’; and this has been the consistent ruling of this Court since the case of Ward v. Jones, 40 N. C., 400 .” See, also, Midgett v. Midgett, 117 N. C., 8 ; Jenkins v. Jenkins, 96 N. C., 254 ; Howell v. Knight, 100 N. C., 254 ; Freeman v. Freeman, 141 N. C., 97 .
In J enhins v. Jenkins, supra, article 5 of the will in question read:“I desire my daughter, Eliza Jane Jenkins, to have the use of all the balance of my estate, including lands, negroes, stock of all kinds, household, etc., during her natural life, and at death to be equally divided among the heirs of her body”; and in this case the words, "to he equally divided," was held to prevent the application of the rule, and cited Mills v. Thorne and Ward v. Jones.
The Chief Justice concurs in this dissent.