heirs and assigns, that notwithstanding any act, matter or thing done or permitted by the said [appointor] to the contrary, the context, may have only the force of the word children, in which case the rule is utterly irrelevant. These are preliminary questions, purely of conSTRUCTION, to be considered without reference to the rule, and to be solved by the ordinary process of interpretation. That point kept steadily in view would have prevented infinite confusion. III. Operation of the rule, immediate and vested remainder to the heirs, III. The operation of the rule is two-fold; first, it denies to the remainder the effect of a gift to the heirs; secondly, it attributes to the remainder the effect of a gift to the ancestor himself. It is, therefore, clear that the rule not only defeats the intention, but substitutes a legal intendment directly opposed to the obvious design of the limitations. A rule which so operates cannot be a rule of construction. As a consequence of transferring the benefit of the remainder from the heirs, who are unascertained, to the ancestor who is ascertained, the inheritance, limited in contingency to the heirs, may become vested in the ancestor; and, as another consequence of the same process, the ancestor's estate of freehold may merge in the inheritance. Thus-1. If land be limited to A. for life, remainder to his heirs or to the heirs of his body, the primary effect will be to give him an estate of freehold, (liable, of course, to merger,) with, by force of the rule, a remainder, immediate and vested, to himself in fee or in tail; (just as if the limitations were to him for life, remainder to him and his heirs, or to him and the heirs of his body,) and the final result, under the law of merger, will be, by the absorption of the particular freehold in the vested inheritance, to give him an estate in fee tail or an estate in fee simple in possession. But-2. If land be limited to A. for life, remainder, contingent reif A. shall survive B., to his (A.'s) heirs or to the heirs of his body, then, as heirs, the remainder is contingent, because made to depend on the event of A.'s surviving B., the ancestor (A.) will take under the rule, not a vested, but a contingent inheritance; (just as if the limitations were to him for life, remainder, if he shall survive B., to him, A. and his heirs, or to him and the heirs of his body,) the rule changing the object, but not the quality of the remainder. Here, as the inheritance cannot vest, the particular estate of freehold will not merge, but A. will remain tenant for life, with an immediate contingent remainder to himself in tail or in fee. This remainder, in the event of his surviving B., will vest in him (A.); the estate of freehold will then merge, and he will thus have, as in the previous example, a fee tail or fee simple in possession. So-3. If land be limited to A. for life, remainder to B. for mediate relife or in tail, remainder to the heir or heirs of the body of A., then, by reason of the interposition of the estate for life or estate tail of B., the ancestor mainder to the mainder to the heirs. -for right to appoint, IV. Mode of applying the rule. the said recited power is valid, subsisting and unexecuted, and the said [appointor] has in himself good right by virtue (A.) has, under the rule, not an immediate, but only a mediate inheritance, (just as if the limitations were to him for life, remainder to B. for life or in tail, remainder to him, A. and his heirs, or to him and the heirs of his body,) the rule changing the object, but not the position, of the remainder. A., therefore, will be tenant for life, with a mesne vested remainder to himself in tail or in fee, in which remainder, if B.'s interposed estate should determine in A.'s lifetime, A.'s life estate will merge, and he will then have, as in the first example, a fee tail or fee simple in possession.-The obvious deduction from these examples is, that in no case does the rule disturb the particularestate of freehold in the ancestor, which is left to the uncontrolled operation of ordinary principles, merging or not merging, according as the remainder transferred by the rule from the heirs to the ancestor is absolute or conditional, proximate or remote. The estate of freehold is a circumstance without which the rule is dormant; but the rule, when called into action, exerts its force on the remainder alone. Why that circumstance was selected, we can only conjecture. It is affirmed, indeed, (Fear. C. R. 8th edit. 77; 1 Harg. Tracts, 500,) that a limitation to A. for life, with remainder to his heirs, is in truth the same thing as a limitation to A. AND his heirs. In the simple case thus put, the EFFECT, under the rule, aided by the doctrine of merger, is the saine, but who will assert that the IMPORT is the same? And how singularly short-sighted does this reasoning appear, when it is recollected that the rule equally applies where the gift is, to A. for life, remainder (interposed) to B. for life, remainder to the heirs of A.; or to A. pur auter vie, remainder to the heirs of A.; or, to A. durante viduitate, remainder to the heirs of A.; or, to A. in tail, remainder to the heirs of A., &c.;-cases which need only to be mentioned in order to explode the theory which seeks to form a fee by the union of the two limitations. It is an error, and the fruitful parent of errors, to affirm that the limitations unite or coalesce under the rule, which has discharged its office by substituting the ancestor for the heirs in the second limitation. IV. When the ordinary rules of construction have ascertained the coexistence of a freehold in the ancestor and a remainder to the heirs, the simplest and surest method of applying the rule is to read the second limitation as a limitation to the ancestor himself and his heirs. This gives at and in every possible case, the true result. The effect, universally and constantly, will be the same as if the remainder had been expressly and intentionally limited to the ancestor and his heirs :-reading the words " and his heirs," not, according to the notion referred to at the close of the preceding section of this note, as words of limitation of the estate of freehold once, thereof to appoint by these presents the said hereditaments and premises with their appurtenances, to the uses and in expressly limited to him, (which would be absurd,)—but as words of limitation of the estate in remainder attributed to him by the rule. of the rule. These positions, which really comprise the whole doctrine of the rule, Erroneous views appear in themselves to be clear and demonstrable; yet have judges and text-writers perplexed and confounded this branch of learning by insisting, at one time, that, upon general principles, the law would not allow of a remainder to the heirs, as purchasers, of an ancestor taking a particular estate of freehold, (Fear. C. R. 8th edit., 192; Harg. Tracts, 574,) or, in other words, that there is no special interdict at all—a short mode of ending the debate by annihilating the subject of it ;-at another, that the rule is a key to the construction, nay, consults the intention of the limitations!-again, that where the remainder is immediate the limitations unite or coalesce, and that where the remainder is mediate they unite or coalesce sub modo, so as to admit the intervening estates, (Fear. C. R. 8th edit. 78,) or, in other words, that they are at once united and distinct, at once consolidated and unconfounded. The rule, when viewed in its true light as a rule which refuses to one (and only one) given mode of disposition, the intended effect, and arbitrarily imposes a different effect, ceases to present that mysterious appearance with which acute and laborious, but misdirected, learning has invested it. Its reason may be lost, its policy may be questioned, but its authority must be acknowledged, while its application is relieved from every difficulty. No longer the sport of conflicting opinions or decisions, it has a determinate purpose, and a uniform result. neral and particular intention," The subject of this note is intimately connected with the doctrine of Doctrine of "gegeneral and particular intention," which ever since the case of Roe d. Dodson v. Grew, (a) has occupied a large and prominent space in almost every discussion upon devises for life, with remainder to children, issue or heirs, and especially in the judgments of Lord Kenyon. In a work pub- -questioned. lished some years ago, the writer ventured to question the doctrine, contending that it either meant what the Rule in Shelley's case imported, or that it was destitute of all meaning. (b) The arguments advanced seemed, however, to make but little progress against the force of inveterate opinion, and the great names with which the doctrine stood identified. It found too -defended, (a) Wilmot, 272; 2 Serj. Wilson, 322. (b) Inquiry into the Effect of Limitations to Heirs of the Body in Devises, (1824,) 286. ment, —for quiet enjoy manner aforesaid; And also that the said hereditaments and premises, with their appurtenances, and the rents and profits an able defender (a) in a gentleman, to whose labours we are indebted for some of the recent amendments in the law, but the mistery which attended the doctrine seemed rather to be increased by a defence which associated it with the apparently distinct doctrine of cy pres. (b) Another writer, indeed, of very high authority had lent his sanction to the doctrine, treating the cases commonly" associated with it as totally distinct" from those which depend upon the rule in Shelley's case, and observing that Mr. Fearne had "confounded the cases under discussion with those which depend strictly on the rule in Shelley's case." (c) The substance of the proposition advanced by the supporters of the doctrine was, that "all the cases in which the parent had been held to take an estate tail, notwithstanding the heirs or issue were to take as tenants in common, have been expressly decided on the ground of supporting the general intention, and have not been governed by the rule in Shelley's case. It is admitted that the rule will not apply where the word heirs or issue is explained to mean children, and that when heirs take as tenants in common by purchase, heirs must mean children." To this proposition the answer is obvious, that the moment we have ascertained that a limitation to heirs or issue designates children, the result must be the same as if the very word children had been used; the children, therefore, will take estates by purchase, (d) and the parent will not take an estate tail at all by force of that limitation. Why," when heirs take as tenants in common by purchase heirs must mean children," is less apparent, since land may certainly be limited to A. for his life, or for the life of B. in trust for B, with remainder to such persons as at the death of A. shall answer the description of his heirs to take as tenants in common. The converse proposition, however, is true, that when children take as tenants in common, children cannot mean heirs, and, consequently, that a limitation to heirs (or issue) construed CHILDREN, can never give an estate tail to the parent.-Nevertheless, under the circumstances already stated, the attempt to rescue this (a) Tyrrell's Suggestions, [not published,] 334, et seq. replied to, Hayes's Principles, 88. (b) Butl. Fearn. Cont. Rem. 8th ed. 204, n. (c) Sugden's Gilb. Uses. 41, n. (d) Denne v. Page, 11 East, 603, n; Hay v. Earl of Coventry, 3 T. R. 83; Foster v. Earl of Romney, 11 East, 594; Doe v. Vaughan, 5 Barn. & Ald. 464; 1 Dowl. & Ryl. 52, [in these cases the children took only life estates, yet the gift over was restrained to a failure of such children]; Goodright v. Dunham, Dougl. 264; Doe v. Perryn, 3 T. R. 484; King v. Marquis of Stafford, 7 East, 521; and see Stains v. Maddock, 8 Vin. Ab. 448; 3 Bro. P. C. by Toml. 108; Lethieullier v. Tracey, Amb. 204, 220; Doe v. Gunnis, 4 Taunt. 313. thereof, shall or may, at all times hereafter, be quietly held, received and enjoyed accordingly without any eviction, inter branch of the law from the perplexity occasioned by "general and particular intention" seemed to be nearly hopeless, when it received the powerful support of a writer often quoted in the previous part of this work. (a) Encouraged by such co-operation, and by the impression which had apparently been made, the doctrine was again examined. The substance of the argument against the doctrine is comprised in the following passage:-"The foregoing rules lead irresistibly to the conclusion, that the reasoning of Lord Kenyon upon general intention, in such cases as Doe v. Smith(b) and Doe v. Cooper,(c) has no foundation in law. That reasoning may be thus disposed of in a few words. If his lordship's version of the devise was correct, and it really imported a gift to A. for life, remainder to his children, and in default of issue of A., over, then issue' was clearly referable to the particular class of issue before designated, more especially in Doe v. Smith, where the children would have taken the inheritance; but admitting that issue might be taken to mean issue indefinitely, still this did not authorize the court to strike out the gift to the children, but warranted, at most, the construction of particular estates in the children, with remainder in tail to the first taker, with remainders over, so as to give effect to every part of the devise. On the other hand, if Lord Kenyon's reading of the devise was wrong, and the devise imported (as in sound legal construction it unquestionably did,) that which it expressed, a gift to A. for life, remainder to the heirs of his body, or his issue, (i. e. indefinitely,) and in default of issue of A., over, the effect was of course determined by the rule in Shelley's case, which gives the inheritance to the ancestor, and the case was not distinguishable by a shade of difference from fifty others in which that rule had produced the same result. The like observations will apply to the arguments of Wilmot, C. J. in Roe v. Grew, and with additional force, because the devise over was in default of such issue;-yet it was thought consistent with sound construction to burthen the express relative with a weighty and comprehensive intention,' a' principal, capital, and most material destination,' which the antecedent was assumed to be incapable of sustaining. The note of his Lordship's judgment concludes with these remarkable words;-' if estate tail, a chance-if estate for life, no chance-better to have a chance of something.' The grand result, therefore, of this theory, (for the doctrine can have no practical existence,) which, consigning to oblivion the rules of law, overthrows by force of intention alone, and builds upon intention alone, is to (a) Jarman on the Construction of Devises, 552; infrà, 282, n. |