[239] since the 31st of December, 1833, is now regulated by the statute of 3 & 4 W. IV. c. 106, which has admitted relations of the half-blood, and parents and other ancestral relations in the ascending line, to the heirship. (a) Of course, the limiting of the estate over, in default of heirs of the body or issue, to the right heirs of the devisee, does not vary the construction, farther than to give the devisee the remainder in fee expectant on the estate tail. Thus, where (b) a testator devised certain lands unto his son P. and his heirs forever, on condition that he paid W. £30 within one year after the death of the testator's wife, and he gave other tenements to other sons, adding the following clause: "Item. My will and mind is, that in case any of my said children unto whom I have bequeathed any of my real or copyhold estates shall die without issue, then I give the estate of him or her so dying unto his or their right heirs forever;" and it was held that the children took estates tail, with remainder in fee to themselves. Sometimes an estate tail general is cut down to an estate tail special by implication. As where (c) the devise was to the use of the testator's eldest son John and his heirs forever, and failing issue of John, to the use of James the second son and his heirs forever, and failing issue of that son, to the use of the third son George and his heirs forever, and failing his issue, to the use of every other son the testator should or might have, according to priority of birth; and failing his (testator's) issue male, then to his issue female and their heirs forever, and for want of issue female, then to [240] the use of his (the testator's) heirs forever; it was argued that the testator evidently intended to postpone the female to the male line of issue, and that the latter part of the will was explanatory of the devise to the sons, showing that they were to take estates tail male only; for that the intent of postponing the issue female could not be answered without postponing his granddaughters as well as daughters, who were both comprehended under the general expression of his issue female; and of this opinion appears to have been the House of Lords, confirming a decree of the Irish Court of Exchequer. (d) (a) See 1 Hayes's Introd. (5th ed.) p. 319. (b) Brice v. Smith, Willes, 1. (c) Fitzgerald and Leslie, 3 B. P. C. (Toml. ed.) 154. This seems to be the converse of the cases of Tuck v. Frencham, Moore, 13, pl. 50; S. C. 1 And. 81; and Doe d. Hanson v. Fyldes, Cowp. 833, stated ante, vol. 1, p. 425. (d) This chapter, it is obvious, does not exhaust the general subject of which it professes to treat. The numerous instances in which the words heirs of the body, accompanied by explanatory expressions, and the words children, son, and issue, have operated to confer an estate tail, are fully discussed in subsequent chapters, to which, therefore, the reader is referred. 177 CHAPTER XXXVII. RULE IN SHELLEY'S CASE.1 I. Nature of the Rule. in Regard to the Requisites to its Operation; considered Estate of Freehold,-in Regard to the Limitation to the Heirs. Questions where one or both of the Limitations relate to several Persons. II. Executory Trusts in Terms which would create an Estate Tail. III. Practical Effect of the Rule considered. NATURE of the rule. Case of Perrin v. Blake, [p. 242.] Rule never infringed, [p. 242.] Preliminary question of construction, [p. 243.] Limitations must be created by same instrument, [p. 243.] Will and schedule, [p. 244.] Deeds creating and exercising powers, [p. 244.] Legal and equitable interests, [p. 244.] Legal estate clothed with a trust, [p. 244.] 1 See the remarks on the rule in Shelley's case, in 4 Kent, (5th ed.) 214, et seq. The rule in Shelley's case has been received and adopted as part of the system of the common law in these United States. South Carolina, see Dott v. Cunningham, 1 Bay, 453. Carr v. Porter, 1 M'Cord, Ch. 60, was recently decided, after great consideration, by the Court of Appeals, upon the basis of the authority of the rule in Shelley's case. It has been assumed to be the rule in North Carolina, both in respect to land and chattels. Payne v. Sale, 3 Battle, 455; Davidson v. Davidson, 1 Hawks, 163. See Swain v. Roscoe, 3 Iredell, 200. In the case of Polk v. Faris, 9 Yerger, 209, after a very thorough and elaborate discussion, the rule in Shelley's case was declared to be the law of the land in Tennessee. The rule was admitted as binding authority in Virginia, in the case of Roy r. Garnett, 2 Wash. 9; Moore v. Brooks, 12 Grattan, (Va.) 135. It has been recognized as binding in Maryland, both in wills and conveyances by deed. Horne v. Lyeth, 4 Harr. & Johns. 431; Lyles v. Digge, 6 Harr. & Johns. 364. So in Pennsylvania, James's claim, 1 Dall. 47; Findlay v. Riddle, 3 Binn. 139. So in Ohio, M'Feely v. Moore, 5 Ohio, 465. It was formerly recognized in Connecticut. Bishop v. Selleck, 1 Day, 299, but it has since been abrogated by statute. The rule was abolished in Massachusetts in 1791, as to wills. See Steel v. Cook, 1 Metcalf, 282. And by the Revised Statutes of Massachusetts it has been abolished as to deeds also. Rev. Stat. c. 59, § 9. Respecting the statute of 1791, it is remarked by Mr. Chief Justice Parker, in Bowers v. Porter, 4 Pick. 206, that "without doubt it was the intention of the legislature by that statute to abolish the rule in Shelley's case, which had got to be received as the rule of the common law." This rule has also been in effect abolished in New Jersey, by statute, 1820. New Jersey Rev. Laws, 774. It was formerly recognized in New York. Brant v. Gelston, 2 Johns. Cas. 384; Kingsland v. Rapelye, 3 Edwards, Ch. 1. But it was abolished by the Revised Statutes, 1 vol. 725, § 28. See 4 Kent, (5th ed.) 229-233. Although the rule in Shelley's case is abolished, either directly or in effect by statute, in many of the States, it is yet frequently referred to by way of illustration or argument. In Richardson v. Wheatland, 7 Metcalf, 172, it is remarked by Shaw, C. J., that "where a testator gives an estate to one for life, in terms, with a devise over to the general heirs, or heirs of the body, the natural presumption would seem to be, that the intent of the testator was, that it should be carried into effect liter Rule considered in relation to estate for life, [p. 245.] As to expressions negativing a larger estate, [p. 246.] Interposition of trustees to preserve contingent remainders, &c., [p. 246.] Rule in regard to limitation to the heirs, [p. 246.] Immaterial under what denomination heirs are described, [p. 247.] Limitation to the heirs by implication, [p. 247.] As to declaration that heirs shall take by purchase, [p. 247.] Effect of contingent limitation to the heirs, [p. 247.] Such limitation contingent, when, [p. 248.] Possibility of freehold determining in lifetime of ancestor, [p. 248.] Limitation to heirs of tenant of freehold, and of another person, [p. 249.] To wife for life, remainder to heirs of the bodies of husband and wife, [p. 249.] Where ancestor is tenant in common of freehold, [p. 250.] Distinction between heirs of the body and heirs on the body to be begotten, [p. 251.] Executory trust, what, [p. 253.] Uses in strict settlement, when directed, [p. 253.] Settlement to be made on A and the heirs of his body, [p. 254.] Direction that it should not be in his power to dock the entail, [p. 254.] To A for life, without impeachment, &c., remainder to issue of her body, [p. 255.] To A and his issue in tail male, [p. 255.] Alleged distinction where testator himself declares uses of lands to be purchased, [p. 256.] Disapproved by Lord Eldon, [p. 256.] Disregarded in certain cases, p. 257.] Devise of lands to be purchased, to A for life, remainder to his issue, [p. 257.] To A and the heirs male of his body, [p. 257.] Trust executed by simply interposing trustees to preserve contingent remainders, [p. 258.] Indication that testator did not intend an estate tail, required, [p. 258.] Direction to settle on A and the heirs of his body, [p. 259.] That a "proper entail be made to the male heir," [p. 259.] Estate tail directed, [p. 260.] To be settled upon grandchildren and their issue in tail male, [p. 260.] Remark on Marshall v. Bousfield, [p. 261.] Devise to R. to be entailed upon his male heirs, [p. 261.] Not a clear estate tail in R., [p. 262.] As to giving tenants in tail power to charge, [p. 262.] Distinction between marriage articles and wills, [p. 262.] General observations upon the cases, [p. 263.] Whether a direction to settle on A for life, remainder to the heirs of his body, authorizes a strict settlement, [p. 264.] Affirmative established by Bastard v. Proby, [p. 265.] Observations upon Blackburn v. Stables, [p. 265.] Practical bearings of the rule in Shelley's case, [p. 266.] As to dower and curtesy, [p. 267.] ally, and that the first taker should have a life estate only, without power to alienate and defeat the claims of the heirs, who seem to be alike the objects of the testator's bounty. The rule in Shelley's case, therefore, would probably defeat the real intent of the testator. Assuming this to be the case, the legislature of Massachusetts passed an act apparently for the purpose of altering this rule, and directing that a construction should be put upon such a devise, better calculated to carry the testator's intent into effect. It was provided by Stat. 1791, c. 60, § 3, that such a devise should be construed to vest an estate for life in such devisee, and a remainder in fee simple in such heirs. This provision was reënacted, and extended to lands given by deed as well as by will, by the Rev. Stat. c. 59, § 9. Steel v. Cook, 1 Met. 282." See also 4 Kent, (5th ed.) 218. Alienation by an enrolled conveyance, [p. 268.] Operation of disentailing assurance upon estates intervening between the freehold and the limitation to the heirs, [p. 268.] Further points suggested, [p. 269.]. I. THE rule in Shelley's case is a rule of law, and not of construction. (a) The rule simply is, that, where an estate of freehold is limited to a person, and the same instrument contains a limitation, either mediate or immediate, to his heirs or the heirs of his body, the word heirs is a word of limitation, i. e. the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the heirs of his body, he takes a fee tail; if to his heirs general, a fee simple.' (b) This is well illustrated in the celebrated case of [242] Perrin v. Blake. (c) There A., by his will, declared, that if his wife should be enceinte with a child at any time thereafter, (but which never happened,) and it were a male, he devised his real and personal estate equally to be divided between the said infant and his son W., when the infant should attain twenty-one; and he declared it to be his intent that none of his children should dispose of his estate for longer than his life; and to that intent he devised all his estate to the said W. and the said infant, for the term of their natural lives; remainder to G. and his heirs for the lives of the said W. and the infant; remainder to the heirs of the bodies of the said W. and the said infant lawfully begotten or to be begotten; remainder to the testator's daughters for the term of their natural lives, equally to be divided between 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, Mr. Justice Asten, and Mr. Justice Willes, (Mr. Justice Yates dissentiente,) held, that he was tenant for life only; but their judgment was reversed by (a) The comprehensive nature of the present work renders it impossible to present more than a brief outline of the chief practical points, connected with the rule in Shelley's case, which require the attention of the student or the practitioner; and this plan is the more willingly submitted to, since the subject has received an elaborate investigation from several writers, who have brought great learning and abilities to the task. (b) Shelley's case. 1 Rep. 93; Thomas & Fraser's ed. vol. 1, p. 227. The question was not directly raised in this case, but was incidentally much discussed. See some observations on the nature and origin of the rule, Fea. C. R. and Hayes's Supplem.; Prest. Est. vol. 1, c. 3. See also Earl of Bedford's case, Moor. 718; Whiting v. Welkings, 1 Bulstr. 219; Rundale v. Eeley, Cart. 170; Broughton v. Langley, 2 Lord Raym. 870; S. C. 2 Salk. 679, and cases passim in the next chap ter. (c) 4 Burr. 2579; 1 W. Blackst. 672; 1 Coll. Jur. 283; Harg. Law Tracts, 489, n.; Hayes's Inquiry, 227, n. S. C. 1 See a statement of the ruling in Shelley's case, by Shaw, C. J., in Richardson v. Wheatland, 7 Metcalf, 172. See also Bowers v. Porter, 4 Pick. 205; Moore v. Howe, 4 Monroe, 199; Williams v. Foster, 3 Hill, S. C. 193. a majority of the Judges in the Exchequer Chamber, who held that W. took an estate tail. An appeal was brought in the House of Lords, but was compromised. [243] Since this solemn determination, (a) the rule in "question has been regarded as one of the most firmly established rules of property, and, strictly speaking, no instance can be adduced 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 ancestor; (b) but this has been the result, not of holding the heirs of the body, as such, to take by purchase, but of construing 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. (c) The blending of the two questions tends to involve both in unnecessary perplexity. It is to be observed, that, to let in the application of the rule in Shelley's case, the limitations to the ancestor, and to his heirs, must be created by the same instrument. Therefore, where (d) 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 [244] one *instrument for the purposes of this rule; (e) and the same principle undoubtedly applies to a will and codicil, or several codicils. (a) 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. (b) See next chapter. (c) As to where heirs of the body, children, sons, and issue, are used as words of limitation, see post. (d) Moore v. Parker, Lord Raym. 37; S. C. Skinn. 558. (e) Hays d. Foorde v. Foorde, 2 W. Blackst. 698. 1 See Bowers v. Porter, 4 Pick. 205; 4 Kent, (4th ed.) 216, 218. 2 Coape v. Arnold, 31 Eng. Law & Eq. 133. |