Gambar halaman
PDF
ePub

of satisfying the debts of the present tenant, the same rule still holds; and a grant to A. for his life, and after his decease to his heirs, will now convey to him an estate in fee simple, with all its incidents; and in the same manner a grant to A. for his life, and after his decease to the heirs of his body, will now convey to him an estate tail as effectually as a grant to him and the heirs of his body. In these cases, therefore, as well as in ordinary limitations to A. and to his heirs, or to A. and the heirs of his body, the words heirs and heirs of his body are said to be words of limitation; that is, words which limit or mark out the estate to be taken by the grantee. At the present day, when the heir is perhaps the last person likely to get the estate, those words of limitation are regarded simply as formal means of conferring powers and privileges on the grantee—as mere technicalities, and nothing more. But, in ancient times, these same words of limitation really meant what they said, and gave the estate to the heirs, or the heirs of the body of the grantee, after his decease, according to the letter of the gift. The circumstance that a man's estate was to go to his heir, was the very thing which, afterwards, enabled him to convey to another an estate in fee-simple. And the circumstance, that it was to go to the heir of his body, was that which alone enabled him, in after times, to bar an estate tail and dispose of the lands entailed by means of a com

mon recovery.

is still in

ID., 407. The rule in Shelley's Case . force in many of the States as a part of the common law. See Siceloff v. Redman's Adm., 26 Ind., 251, 259, 260

Hileman v. Bonslaugh, 13 Pa. St. 344. In the last cited case the rule is thus defended by Gibson, Ch. J.: It "ill deserves," he says, "the epithets bestowed on it in the argument. Though of feudal origin, it is not a relic of barbarism or a part of the rubbish of the dark ages. It is a part of a system, an artificial one, it is true, but still a system, and a complete one. The use of it, while fiefs were predominant, was to secure the fruits of the tenure by pre

venting the ancestor from passing the estate to the heir, as a purchaser, through a chasm in the descent disencumbered of the burdens incident to it as an inheritance; but Mr. Hargrave, Mr. Justice Blackstone, Mr. Fearne, Chief Baron Gilbert, Lord Chancellor Parker, and Lord Mansfield ascribe it to concomitant objects of more or less value at this day; among them, the unfettering of estates, by vesting the inheritance in the ancestor, and making it alienable a generation sooner than it would otherwise be. However that may be, it happily falls in with the current of our policy. By turning a limitation for life, with remainder to heirs of the body, into an estate tail, it is the handmaid not only of Taltarum's Case, but of our statute for barring entails by a deed acknowledged in court; and where the limitation is to heirs general, it cuts off what would otherwise be a contingent remainder, destructible only by a common recovery. In a masterly disquisition on the principles of expounding dispositions of real estate, Mr. Hayes, who has sounded the profoundest depths of the subject, is by no means clear that the rule ought to be abolished, even by the legislature; and Mr. Hargrave shows in one of his tracts that to engraft purchase on descent would produce an amphibious species of inheritance, and confound a settled distinction in the law of estates. It is admitted that the rule subverts a particular intention in, perhaps, every instance; for, as was said in Roe v. Bedford, 4 Maule & Selw. 363, it is proof against even an express declaration that the heirs shall take as purchasers. But it is an intention which the law cannot indulge consistently with the testator's general plan, and which is necessarily subordinate to it. It is an intention to create an inalienable estate tail in the first donee; and to invert the rule of interpretation, by making the general intention subservient to the particular one. A donor is no more competent to make tenancy for life a source of inheritable succession, than he is competent to create a perpetuity, or a new canon of descent. The rule is too intimately connected with the doctrine of estates to be separated

from it without breaking the ligament of property. It prevails in Maryland, Georgia, Tennessee, as well as, perhaps, in most of the other States; and it prevailed in New York till it was abolished by statute. We have no such statute, and it has always been recognized by this court as a rule of property." . . In many and, probably, in most of the States, the rule is not looked upon with the same favor. Thus, in Siceloff v. Redman's Adm., cited supra, the Supreme Court of Indiana, speaking through Elliot, J., says: "The rule in Shelley's Case is a rule of the common law, and as the common law has been adopted in this State by statute, the rule is binding upon the courts as a law of real property in Indiana. It may be remarked that whatever reasons may have once existed for it in England have, even there, long since ceased, and no good reason is perceived for its incorporation into the legal policy of this country. It was doubtless introduced into many of the other States, as into this, as a part of the common law, without discussion or question as to its propriety, but it has been abrogated in many of them by statute, especially in its application to devises. . Its propriety as a rule of law,

. . .

in this State, is seriously doubted, and it may be regretted that the attention of the legislature has not been directed to the propriety of its repeal, as its only effect, and more particularly in its application to devises, is to defeat the real intention of testators." In Belslay v. Engel, 107 Ill. 182, 186, the Supreme Court, speaking through Justice Scott, says: The rule in Shelley's Case "is, at most, a technical rule of construction, and has always, since the decision in Perrin v. Blake, 4 Burr. 2579, given way to the clear intention of the testator or donor, when that intention could be ascertained from the instrument in which the words supposed to be words of limitation were used. This rule will control, unless where it contravenes some settled principle of law, otherwise, instead of being a rule by which justice could be administered, it would be a source of incalculable mischief in its practical application."

That the rule is not regarded with favor in this country is further apparent in that it has been abolished by statute in many of the States. It has been abolished in California (Cal. Civ. Code, 1886, sec. 779), Connecticut (Gen. Stat., 1888, sec. 2953), Dakota (Comp. Laws, 1887, sec. 2752), Kentucky (Gen. Stat. of Ky., Bullitt & Feland, chap. 63, art. I, sec. 10; see, also, Truman v. White's Heirs, 4 B. Monr. 560, 570), Massachusetts (Pub. Stat., 1882, chap. 126, sec. 4), Michigan (2 Howell's Ann. Stat. sec. 5544), Minnesota (Kelly's Stat. 1891, sec. 3984), Mississippi (Ann. Code, 1892, sec. 2446), New York (1 R. S. 725, sec. 28; 8th ed., vol. 4, p. 2433, sec. 28), Virginia (Code, 1887, sec. 2423), West Virginia (Code, 1891, chap. 71, sec. 11), Wisconsin (Ann. Stat. Sanborn & Berryman, sec. 2052), and, probably, in other States. The rule has been abolished in the case of wills only in Kansas (Gen. Stat., 1889, sec. 7256), New Hampshire (Pub. Stat., chap. 186, sec. 8), New Jersey (Rev. of 1877, Descent, sec. 10), Ohio (R. S. Giauque's ed., 1890, sec. 5968) and Oregon (2 Hill's Ann. Laws, sec. 3093).-Hutchins' note.

N. Y. REAL PROP. LAW, § 44. Where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises is given, the persons who, on the termination of the life estate are the heirs or heirs of the body, of such tenant for life, shall take as purchasers, by virtue of the remainder so limited to them.

LIT.,

CHAPTER IV.

OTHER FUTURE INTERESTS.

(a) Rights of Entry.

351. But in such cases of feoffment upon condition, where the feoffor may lawfully enter for the condition broken, etc., there the feoffor hath not the freehold before his entrie, etc.

Co. LIT., 265, a. Note, that jus, or right, in generall signification includeth not onely a right for the which a writ of right doth lie, but also any title or claime, either by force of a condition, mortmaine, or the like, for the which no action is given by law, but only an entry.

LEAKE, LAND LAW, 59. A right of entry was not assignable at common law by deed, nor by will; though it might be released to the person in actual seisin of the freehold; and if not so released it descended to the heir. A right of entry, whether immediate or future, and whether vested or contingent, may now be disposed of by deed, 8 & 9 Vict., c. 106, s. 6; and may be devised by will, 1 Vict., c. 26, s. 3; and will descend in the same manner as the land, if recovered, would descend, 3 & 4 W. 4, c. 106, ss. I, 2.

I SHARS. & B., Lead. Cas., 141. A forfeiture may be taken advantage of by the grantor and his heirs . . . and the heir need not be expressly named in the instrument creating the condition to entitle him to take advantage of a breach thereof, occurring either in the lifetime of the grantor or after his death . . . and to have any effect upon the estate the condition must be taken advantage of by those to whom the right so to do belongs; and it may be stated as a general rule that with the breach of a condition a stranger

« SebelumnyaLanjutkan »