and the heirs of their bodies, it is an estate in special tail; and so also if it be to the heirs male of the body of A. B. As, in the first case, no heirs of the body of Thomas can inherit but those who are born of Jane; nor, in the second, any heirs of the body of Jane by any other husband than Thomas; nor, in the third, any heir of the body of Thomas who is not also heir of the body of Jane, nor of Jane who is not also the heir of the body of Thomas; or in other terms, no heir of the body of Thomas, by any other wife, nor of Jane by any other husband, shall succeed.

Hence, if it be wished to settle lands so that the entail may not be cut off by the parents, it may sometimes be necessary to limit an estate for life to one parent, and the inheritance to the heirs of the body of the other, as the entail would then be in neither*; the first taking

500.

ton, 1 Bing. Doe v. Howell, 10 Bar.& Cres. 191.]

* The limitation to the heirs of the body would, in this [Hasker v. Sutcase be contingent; and might be destroyed by the tortious act of the tenant for life, if there were no limitation to preserve contingent remainders: and even if there were, it might fail of effect, in case the parent having the life estate should die before the parent to whose heirs the estate is limited, as there would, after the decease of the tenant for life, be no estate of freehold to support the contingent remainder, unless the limitation to the trustees were extended to meet that event. It is a mode of limitation which can never be recommended.

1 Co. 104.

Wath. Desc.

157. 1 Hurg. Law Tr. 485. 550.

Rule in Shelley's case.

only for life, and the other not taking at all; but the heirs being in by purchase. Or if the estate be the husband's, to limit to him for life, with remainder to the wife in tail, as he, being tenant for life only, cannot dock the entail, and the wife is prevented from doing so by the statute of Hen. 7. c. 20.*

But as it is a rulet, that "if the ancestor,

* But as the husband and wife may together bar the entail, this is not always an effectual mode of prevention.Note by Mr. Watkins.

This mode of limitation should never be resorted to, unless it is wished to give the parents jointly a power of disposition over the estate; and even in such a case, a joint power of appointment is more simple: [previously to the statute 3 & 4 Will. 4. c. 74., such power prevented the expense of a fine or recovery which would othererwise have been needful to bar the entail; and now since the above statute it supersedes the necessity of resorting to those modes of assurance which the act substitutes for fine and recovery.]

This is the well known rule in Shelley's case; so called, not because the rule was first propounded in that case, but because the rule determined the case. From an ignorance of the principle of this rule, more legal errors have probably arisen, and attended with greater mischief, than from the misapplication of any other rule in law. As Mr. Watkins has treated it very briefly, it becomes necessary for us to give some further explanation on the subject. The rule has its origin in feudal principles; and was most probably established to prevent injury to the lord, by loss of wardship, if the heirs could have been made to take by way of purchase, instead of by descent. The rule is, that wherever the ancestor takes an estate of freehold, and an immediate

by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his or her heirs in fee or in tail, the words the heirs are words of limitation, and not words of purchase," care must be taken, if it be in

remainder is limited thereon in the same conveyance to his heirs 'general or heirs in tail, the remainder so limited is immediately executed in possession, in the ancestor so taking the freehold; and, therefore, is not contingent or in abeyance. And also, wherever the ancestor by any gift or conveyance takes an estate of freehold, and there is afterwards, in the same gift or conveyance, a limitation to his right heirs or heirs in tail, after some other estate for life or in tail interposed between his freehold and such limitation to his heirs, &c. ; this remainder to his heirs vests in the ancestor as a remainder, and shall not be in contingency or abeyance. And even if the remainder cannot by possibility vest in the lifetime of the ancestor, as to A. and B., and the heirs of him who shall die first; or if the remainder be limited on a contingency, which contingency does not happen in the ancestor's lifetime, nevertheless, the heirs will take by descent.

The general principles which seem to govern the application of the rule are as follow: First, both the limitations must be created by the same instrument, or by that which is tantamount thereto, viz. the estate of freehold by one instrument, and the remainder to the heirs by an exercise of a power of appointment contained in that instrument. Secondly, both estates must be legal, or both equitable. On this a doubt has been entertained, where the freehold in the ancestor is legal, and the remainder in the heirs equitable: but it should seem the estates will not, in such case, coalesce. [7 T. R. 342.} Thirdly, the rule will operate, although the estate of freehold.

be made without impeachment of waste, or with powers of

1 Rep. 95 b.

Lowev.Davies,

2 Ld. Raym. 1561.

Doe v. Goff,
11 East, 668.

Gretton v.
Haward,

6 Taunt. 94.
1 Mer. 448.

Overruled by Jessonv.Wright, 2 Bligh, 2.58.

and see Wilcox v. Bellaers, Hayes Ing. 1.

[See 1 Myl. & Cr. 411.]

tended that the entail shall not vest in the parents, to limit the estates so as not to be capable of uniting; as to the parent for years, as for ninety-nine years if he so long live, which will only give him a chattel interest that cannot coalesce with the estate limited to his heirs,

jointuring or leasing, or there be an immediate limitation to trustees to preserve contingent remainders. Fourthly, it will operate even if words of limitation be engrafted on the remainder to the heirs, not being inconsistent with the nature of the descent pointed out by the first words; or if the limitation be to heirs special, with general words of inheritance engrafted thereon. Fifthly, if there are words of limitation engrafted on the remainder to the heirs, inconsistent with the nature of the descent pointed out, as to A. for life with remainder to his heirs, and their heirs female of their bodies, 1 Rep. 95 b. ; or there be explanatory words added thereto, as "to B. and the heirs of his body (that is to say) to his first, second, and other sons," or "to A. and the heirs male of her body begotten, or to be begotten, as tenants in common, and not as joint tenants; and if such issue should die before he, she, or they, should attain twenty-one, then to B. in fee," Doe v. Goff, 11 East, 668., or, "to A. and after her decease, to the heirs of her body, share and share alike, if more than one;" the heirs will take as purchasers. Sixthly, if the word "heir" be used in the singular number, without any words of limitation thereon, the rule will take effect, unless, as in White v. Collins, Com. Rep. 289., the limitation to the heir be for life: but it seems if the limitation to the heir be in the singular number, with words of limitation thereon engrafted, although consistent with the nature of the descent pointed out, yet the word heir has been deemed a word of purchase. Seventhly, the rule applies as well to trusts executed as to legal estates. But, Lastly, in trusts

which is a freehold*: or to give an equitable estate only to the parent, and a legal one to the heirs; for estates must be of the same nature to be capable of uniting, as both equitable, or both legal or to confine the particular estate to one parent, and limit the remainder to the

executory the rule is relaxed; and the Court of Chancery will direct a settlement on the issue, as purchasers, if such be the evident intent of the parties. This latter observation applies chiefly to the case of marriage articles. See Trevor v. Trevor, 1 Eq. Ca. Ab. 387. 1 Peere Wms. 622. Jones v. Laughten, 1 Eq. Ca. Ab. 392. Cusack v. Cusack, 2 Bro. P. C.

116. 8vo. ed.

These are the general principles which govern the application of the rule; they are drawn from Mr. Fearne's elaborate essay on Contingent Remainders, which we recommend to the student's careful and patient perusal.

But in this case care must be taken to limit the freehold to trustees during the life of the parent, as otherwise the limitation to the issue being contingent, will fail for want of a preceding estate of freehold to support it; and if the freehold be so limited, then the freehold in possession being in the trustees, they cannot be advised to concur in any act which tends to defeat the remainders. [So that previously to the statutes 3 & 4 Will. 4. c. 74., a recovery could not be suffered during the parent's lifetime; and under this statute, it is conceived there would be a similar obstacle to the trustee's concurring in a deed of disposition, according to its prescribed forms: s. 27. 31.] This limitation can rarely be recommended.

This has been referred to in the preceding note on the rule in Shelley's case: the only remaining point on that subject to be noticed, is the instance of the estate of freehold being legal, and in trust for other persons, with a legal beneficial remainder to the heirs of the first taker. On this