tween them; remainder to G. and his heirs during the lives of the daughters; remainder to the heirs of the bodies of the said daughters,

equally to be divided. The question was, what estate W. took. Lord Mansfield, with Ashton and Willes, JJ., (Yates, J., diss.,) held that he was tenant for life only; but their judgment was reversed by a majority of the judges in the Exchequer Chamber, who held that W. took an estate tail. An appeal was brought in D. P., but was compromised.

Since this solemn determination (e) the rule in question has been regarded as one of the most firmly established rules of Rule never property, and, strictly speaking, no instance can be ad infringed. duced of a departure from it. Undoubtedly, in many cases a devise to a person for life, and after his death to the heirs of his body, has been held by force of the context to give an estate for life only to the

his life and that of his wife, then "to de-
scend to their heirs jointly and their heirs
and assigns or to such as may be then
living," Criswell's Appeal, 41 Penna. St.
288; so to A for life, and "if he shall
leave lawful issue, to them, their heirs
and assigns forever," and on failure of
issue, over, Paxson v. Lefferts, 3 Rawle 59.
A devise to A and the hiers of his body,
and to their heirs and assigns forever,
gives A an estate tail, Wight v. Thayer, 1
Gray 284; Hall v. Thayer, 5 Id. 523;
Buxton v. Uxbridge, 10 Metc. 87; Den v.
Laquear, 1 South. 301. A devise to five
daughters, "to be to them an estate for
life and to the heirs of their bodies after
them and to their heirs and assigns of
such heirs forever, *
* it being my
will and intent to give an estate in fee to
such of my daughters as shall die leaving
issue and an estate for life only to such of
them as shall die without leaving any
issue to survive them," gives the daugh-
ters estates in tail, Manchester v. Durfee,
5 R. I. 549. A devise to A for life, and
after his death to his eldest male heir,
and upon the death of such male heir to
his male heir and his heirs forever, gives
A an estate tail, Malcolm v. Malcolm, 3
Cush. 472. A devise to A, "and to his

*

male heir and to his heirs and assigns forever," with limitation over, if A die leaving no male heir, is an estate tail, Osborne v. Shrieve, 3 Mason C. C. 391; Carter v.

McMichael, 10 Serg. & R. 429; so to A for life, remainder to his issue, their heirs, &c., Paxson v. Lefferts, 3 Rawle 59. A devise to "A, the heirs of his body and assigns forever," creates an estate tail, Pollock v. Speidel, 27 Ohio St. 86.

So an estate in fee is created by a devise to A "during her life, then to her heirs and their assigns," Siceloff v. Redman, 26 Ind. 251; or to A for life, and "after his death to his heirs and to their

heirs and assigns forever," Schoonmaker v. Sheely, 3 Denio 485, affirming 3 Hill (N. Y.) 165. See also on this and other points in this chapter the next following chapter and notes.

(e) Indeed, for a long period antecedently the point had been considered as settled beyond dispute; but in the interval between the judgment in B. R. and its reversal in the Exchequer Chamber all was uncertainty. The profession beheld with no small degree of consternation a doctrine which had been regarded as an established principle of law completely subverted. An interesting statement of the circumstances and progress

of this case may be found in Mr. Hargrave's Law Tracts, and more particularly in Mr. Holliday's Life of Lord Mansfield -a book which, though not in high estimation as a biographical work, the writer remembers to have perused in his early days with much pleasure.

ancestor; (f) but this has been the result, not of holding the heirs of the body, as such, to take by purchase, but of con*struing those words to designate some other class of persons generally less extensive. The rule, therefore, was excluded, not violated, by this interpretation. Whether the testator, by this or any other expression, mean to describe heirs of the body, is a totally distinct inquiry, and has therefore in the present treatise been separately discussed. (g) The blending of the two questions tends to

Preliminary question of construction.

involve both in unnecessary perplexity.

The rule ap

plies to copyholds and

estates pur autre vie.

Gift to A for

to his execu

tors.

[The principle of the rule in Shelley's Case applies to limitations of copyholds (h) and of estates pur autre vie. (i)

An analogous relation subsists between a man and his personal representatives; thus Lord Coke says, (k) "If a man make a life, remainder lease for life to one, the remainder to his executors for twenty-one years, the term for years shall vest in him, for even as ancestor and heir are correlativa as to inheritance, (as if an estate for life be made to A, the remainder to B in tail, the remainder to the right heirs of A, the fee vesteth in A as it had been limited to him and his heirs,) even so are testators and executors correlativa as to any chattel." (1) But this would seem to be rather a rule of construction, in order to promote the intention.]

Limitations

ust be

created by same instrument.

To attract the rule in Shelley's Case the limitations to the ancestor, and to his heirs, must be created by the same instrument. Therefore, where (m) A had, on the marriage of B his son, settled lands on the son for life, remainder to the sons of that marriage successively in tail male, reversion to himself in fee, and by will devised the same to the issue of B by any other wife in tail male; it was held that this devise did not make B tenant in tail, but gave his heir of the body an estate tail by purchase.

But a will, and a schedule to it, are considered as one instrument

(f) See next chapter.

(g) As to where heirs of the body, children, sons, and issue, are used as words of limitation, see post.

[(k) Busby v. Greenslate, 1 Str. 445. (i) Low v. Burron, 3 P. W. 262; Forster v. Forster, 2 Atk. 259.

(k) Co. Lit. 54 b.

(1) See accordingly Kirkpatrick v. Capel, Sugd. Pow., p. 75 (8th ed.); Holloway v. Clarkson, 2 Hare 521; Devall r. Dickins, 9 Jur. 550; Page v. Soper, 11 Ha. 321.]

(m) Moore v. Parker, Ld. Raym. 37, Skinn. 558.

[VOL. II. *334]

for the purposes of this rule; (n) and the same principle will and undoubtedly applies to a will and codicil, or several schedule.

codicils.

Deeds creat

It was contended by Mr. Fearne (0) that where one limitation is contained in an instrument creating a power, and the other in *an appointment under such power, the rule would ing and exerapply; (p) but the position has been, with much reason, questioned by other learned writers. (q)

cising powers.

The rule in Shelley's Case applies to equitable as well as legal interests; (r) but the estate of the ancestor, and the limita

Legal and

interests.

tion to the heirs, must be of the same quality, i. e., both equitable legal or both equitable. It frequently happens that a testator devises land in trust for a person for life, and after his death in trust for the heirs of his body, but gives the trustees some office in regard to the tenant for life that causes them to retain the legal estate during his life, but which, ceasing at his death, does not prevent the limitation to the heirs of the body from being executed in them. 2 In such cases, by the rule just stated, they take as purchasers. (s) The converse case of course may, but it rarely does, occur. (t)

(0) C. R. 75. [And so Sugd. Pow. 472 (8th ed.); Hayes on Limitations 51.] (p) Venables v. Morris, 7 T. R. 342. (g) Butl. n. to Co. Lit. 299 b; 1 Prest. Est. 324.

[(r) Reynell v. Reynell, 10 Beav. 21; Fearne C. R. 124, et seq. And there are no degrees of equity, Nouaille v. Greenwood, T. & R. 26; In re White and Hindle's Contract, 7 Ch. D. 201.]

2. Baker v. Scott, 62 Ill. 86; Beacroft e. Strawn, 67 Ill. 28; Griffith v. Plummer, 32 Md. 74; Austin v. Payne, 8 Rich.

Eq. 9.

Where the estate given to the life tenants is an equitable one, and that to the heirs a legal one, the rule in Shelley's Case will not apply, e. g., in a devise in trust for children and if they die intestate, to their heirs, Ward v. Amory, 1

S. C., 2 Swan 174; or where the devise is in trust for a married woman for life, and upon her death to her heirs in fee tail, Ware v. Richardson, 3 Md. 505; Griffith v. Plummer, ubi supra. To the same effect, see Crosby v. Davis, 2 Pitts. L. J. R. 403; Thurston v. Thurston, 6 R. I. 296. So a

devise for the use of testator's widow, and "at her death to be equally divided between the heirs of her body," Settle v. Settle, 10 Humph. 474. But if the trust is for a married woman during coverture,

and on the death of herself and her husband "to those who would be heirs" in default of appointment, and if it is execu

ted by the death of the husband before

his wife, she will take a fee under the rule in Shelley's Case, Williams' Appeal, 83 Penna. St. 377; Eaton v. Tillinghast,

4 R. I. 276.

(8) Ante p. 292.

(t) An unsuccessful attempt to support

Curt. C. C. 419; or to the heirs of their such a construction was made in Nash v. bodies, Edmonson v. Dyson, 2 Ga. 307; Coates, 3 B. & Ad. 839, ante p. *319, where Ward v. Saunders, 3 Sneed (Tenn.) 391; it is observable that the trustees had not

Legal estate clothed with a trust.

Where the limitations to the devisee for life, and to the heirs of his body, both carry the legal estate, the fact that one of them is subject to a trust does not prevent the application of the rule. Mr. Fearne, indeed, seems to have been of a contrary opinion; (u) but the affirmative has been successfully maintained by his learned editor and Mr. Preston, (x) on the well-known principle, that trust estates are not objects of the jurisdiction of courts of law.

In Douglas v. Congreve (y) real and personal estate were given to a feme coverte for life for her separate use, and after her decease to her husband for life, with remainder to the heirs of her body in tail, accompanied by a declaration that the aforesaid limitations were intended by the testator to be in strict settlement; and it was contended that as the testator had created a trust for the separate use of the devisee, she had merely an equitable interest (the husband being a trustee for her), with which the legal limitation to the heirs would not unite; but Lord Langdale con*clusively answered this reasoning by observing that the legal estate was vested in the wife, and that the power which the law gave to the husband over the real estate of his wife did not alter the nature or quality of that estate.

Rule considered in relation to

The estate of freehold may be an estate for the life of the devisee himself, or of another person, or for the joint lives of several persons, and may be either absolute or determinable on a contingency, as an estate durante viduitate, (z) and may arise either by express devise, or by implication of law, (a) which must be, we have seen, a necessary implication. (b)

estate for life.

[In what cases the freehold shall be said to result by operation of law is a preliminary question of construction. In Coape v. Arnold, (c) there was a devise to G. H., the testator's

Freehold resulting for life.

any office to peform except to preserve the contingent remainder, and there was no such remainder unless the words "heirs of the body" were construed children; and the court, by rejecting this construction, destroyed the force of the argument. This case serves to show that the courts are not disposed to strain the rules of construction for the purpose of preventing the application of the rule in Shelley's Case.

(u) C. R. 35.

(x) Treat. on Estates, vol. I., p. 311.

(y) 1 Beav. 59. [See Verulam v. Bathurst, 13 Sim. 386.]

(z) Merrill v. Rumsey, 1 Keb. 888, T. Raym. 126; Fea. C. R. 31; Curtis v. Price, 12 Ves. 89; [Griffiths v. Evan, 5 Beav. 241.]

(a) Pybus v. Mitford, 1 Ventr. 372, Freem. K. B. 351, 369, T. Raym. 228; Hayes d. Foorde v. Foorde, 2 W. Bl. 698; [and see Fearne C. R. 40, et seq.]

(b) Ante ch. XVII.

[(c) 2 Sm. & Gif. 311, 4 D., M. & G. 574. See a letter (7 Jur. (N. S.) pt. II.,