4

might have taken effect as a contingent remainder or executory devise, has the same properties and effect as the latter estate.1 In New York, a freehold estate may be created to commence [*265] at a future day, a *remainder of a freehold, either contingent or vested, may be created expectant on the determination of a term for years, and a fee may be limited upon a fee upon a contingency within prescribed limits as to time.2 The same provision is made in Michigan, Wisconsin, and Minnesota.3 Freehold estates may be created to commence in futuro in Indiana, Michigan, Minnesota, and Wisconsin, and, whether they be created by deed or will, in Alabama, Iowa, Mississippi, Missouri, Kansas, and Texas.5. In Virginia and in Kentucky, estates may be created to commence in futuro, and any estate which would be good as an executory devise or bequest, will be good if created by deed. In Illinois, Mississippi, and Missouri, when any estate is, by any conveyance, limited in remainder to the son or daughter of any person to be begotten, such son or daughter, born after the decease of the father, takes the estate, in the same manner as if he or she had been born in the lifetime of the father, although no estate shall have been conveyed to support the contingent remainder after his death." In Indiana, fees-tail are turned into fees-simple, and where a remainder is limited after what would be an estate tail at common law, it will still be a remainder to take effect if the first taker die without issue. In New York and Wisconsin, an estate for life can be limited after an estate for years as a remainder only to a person in being at the creation of such estate.9

8

2. (2) Of limiting remainders on a contingency which may

1 Ala. Code, 1852, § 1301.

2 N. Y. Rev. Stat. 5th ed. 1859, pt. 2 tit. 2 art. 1, § 24; 4 Kent, Com. 199, n.

3 Mich. Comp. Stat. 1857, ch. 85, § 24; Wis. Rev. Stat. 1855, ch. 83, § 24; Minn. Comp. Stat. 1859, ch. 31, § 24.

* 1 Ind. Rev. Stat. 1852, p. 238, § 7;- Mich. Comp. Laws, 1857, ch. 85, § 24 ; Minn. Comp. Stat. 1859, ch. 31, § 24; Wis. Rev. Stat. 1858, ch. 83, § 24.

Ala. Code, 1852, § 1301; Iowa, Revision, 1860, § 2212; Gen. Laws of Kansas, 1862, ch. 41, § 6; Miss. Code, 1857, ch. 36, art. 1; Mo. Rev. Stat. 1855, ch. 32, § 9 ; Oldham & W. Dig. Tex. Law, 1859, p. 72, art. 206.

6 Va. Code, 1849, ch. 116, § 5; Ky. Rev. Stat. 1852, ch. 80, § 6.

7 2 Ill. Comp. Stat. 1858, p. 961; Miss. Rev. Stat. 1857, ch. 36, art. 9; Mo. Rev. Stat. 1855, ch. 32, § 9.

8 Ind. Rev. Stat. ch. 28, § 57.

N. Y. Rev. Stat. pt. 2, tit. 2, art. 1, § 21; Wis. Rev. Stat. ch. 81, § 21.

abridge, &c. a precedent estate. In Indiana, Michigan, *Min- [*266] nesota, and Wisconsin, a remainder may be limited on a con

tingency which, in case it should happen, will operate to abridge or determine the precedent estate,1 and the rule is the same in New York, such a remainder being construed to be a conditional limitation.2

3. (3) Of remoteness of contingencies. In Indiana, New York, Michigan, Minnesota, and Wisconsin, no future estate otherwise valid, will be void on the ground of the probability or improbability of the contingency on which it is limited, to take effect.3

4. (4) Of defeating a particular estate. In Massachusetts, Indiana, Kentucky, Mississippi, Missouri, Texas, and Virginia, no expectant estate can be defeated or barred by any alienation or other act of the owner of the precedent estate, nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, or merger, subject to provision made by the party creating it.1 In New York, Michigan, Minnesota, and Wisconsin, there are substantially the same provisions, together with the following: "No remainder, valid in its creation, shall be defeated by the determination of the precedent estate before the happening of the contingency on which the remainder is limited to take effect; but should such contingency afterwards happen, the remainder shall take effect in the same manner and to the same extent as if the precedent estate had continued to the same period. In Indiana, New York, and Virginia, a posthumous child takes a contingent remainder, as if born at his father's death, without any intermediate estate to support it. He is con- [*267] sidered as living, in Massachusetts. See also, for the law in

1 Ind. Rev. Stat. 1852, p. 238, § 38; Mich. Comp. Laws, 1857, ch. 85, § 27; Minn. Comp. Stat. 1859, ch. 31, § 27; Wis. Rev. Stat. 1858, ch. 83, § 27.

2 N. Y. Rev. Stat. pt. 2, tit. 2, art. 1, § 27.

✦ Mass. Gen. Stat. ch. 89, §§ 10, 11; Ind, Rev. Stat. ch. 28, §§ 63, 65; Ky. Rev. Stat. 1852, ch. 80, §§ 11, 12; Miss. Rev. Code, 1857, ch. 36, art. 7; Mo. Rev. Stat. 1855, ch. 22, § 9; Oldham & W. Dig. Tex. Laws, 1859, p. 71, art. 202; Va. Code, 1849, ch. 116, §§ 12, 13.

N. Y. Rev. Stat. 5th ed. vol. 3, p. 13; Mich. Comp. Laws, 1857, ch. 85, §§ 32– 34; Minn. Comp. Stat. 1859, ch. 31, §§ 32-34; Wis. Rev. Stat. 1858, ch. 83, §§ 32– 34.

Ind. Rev. Stat. ch. 28, § 74; N. Y. Rev. Stat. 5th ed. vol. 3, p. 13; Tate, Dig. Va. Laws, 1841, p. 336.

7 Mass. Gen. Stat. ch. 91, § 12.

Arkansas, California, Georgia, Ohio, Missouri, and Wisconsin, the statutes and authorities cited below.1

5. (5) Of descent and alienation of remainders, &c. In New York, Michigan, Minnesota, and Wisconsin, expectant estates are descendible, devisable, and alienable, in the same manner as estates in possession.2 In Massachusetts and in Maine, when any contingent remainder, executory devise, or other estate in expectancy is so granted or limited to any person, that in case of his death before the happening of the contingency, the estate would descend to his heirs in fee-simple, such person may, before the happening of the contingency, sell, assign, or devise the premises subject to the contingency,3 and in addition, where lands are held by one person for life, with a vested remainder in tail to another, the tenant and remainder-man may together convey the same in fee-simple. In New Jersey, any person may devise, convey, assign, or charge by deed, any contingent or executory interest to which he is entitled, except any expectancy he may have as heir of a living person, or any interest to which he may become entitled under any deed to be thereafter executed, or under the will of any living person.5

SECTION VIII.

ESTATES WITHIN THE RULE IN SHELLEY'S CASE.

1. What limitations come within this rule.

2, 3. Origin and theory of the rule.

4. Rule applies, wherever by one act an estate goes to one and his heirs.

5. If remainder is limited by a separate instrument, not within the rule.

6. Limitation to the heirs of A, gives A no interest.

7. The first estate limited must be a freehold.

8.

Limitation of remainder must be to heirs of the first taker.

1 Dig. Ark. Stat. ch. 56, § 2; Cal. Comp. Laws, 189, § 11; Hotchk. Ga. Stat. 333, 35; Walk. Am. Law. 333; Mo. Rev. Stat. ch. 32, § 9; Wis. Rev. Stat. ch. 83, 30.

2 N. Y. Rev. Stat. 5th ed. vol. 3, p. 13; Mich. Comp. Laws, 1857, ch. 88, § 35;

Minn. Comp. Stat. 1859, ch. 31, § 35; Wis. Rev. Stat. 1858, ch. 83, § 35.

8 Mass. Gen. Stat. ch. 90, § 87; Me. Rev. Stat. 1857, ch. 73, § 3. Mass. Gen. Stat. ch. 89, § 5; Me. Rev. Stat. 1857, ch. 73, § 4. Nix. Dig. N. J. Laws, p. 126.

9. Rule applies though estates interpose between the first and remainder.

10. Rule applies to equitable and trust estates.

11. It applies though there be a trust as to one of two legal estates.

12. He to whom the first estate is limited may convey the fee.

13. The rule applies to the remainder, and not the particular estate.

14. The rule imperative in its character.

15. Test whether a limitation is within the rule.

16. Limitation to son or sons, &c., not within the rule.

17. In what States the rule applies, and in what not.

1. There remains to be considered a pretty large class of estates which, in England and many of the United States, come within what is called the Rule in Shelley's case, the peculiarity

*of which is, that while in form, the estate has two parts, a [*268] particular one for life, with a contingent remainder to the heirs of the tenant who takes the particular estate, it is, constructively, a single estate of inheritance in the first taker. The form of limitation of such estates is to the grantee or devisee for life, and after his death, to his heirs or the heirs of his body, either mediately or immediately, both estates being created by the same deed or devise. This rule, instead of regarding a part of the entire estate as in the ancestor, and a part in his heirs, considers the entire estate as being in him alone, that the intent in creating it was to have it go in a certain line of succession, and if the first taker died intestate, his heirs should take by descent from him, and not as purchasers under the original limitation.1

2. It will be seen hereafter, that by the statutes of several States, such a limitation as is above described is declared to be what it purports to be in terms, a contingent remainder in the heirs. But from a period in the history of the English law anterior to that when contingent remainders were first recognized as legal interests, and too early to fix its precise date, it has been a rule of the common law, not merely of construction but of imperative obligation, that if an estate is limited to one for life, and by the same gift or conveyance, it is limited to his heirs in fee or in tail, the word "heirs" is a word of limitation of his, the first taker's, estate, and that heirs under such a deed or gift, would have no greater interest or right than the heirs of any grantee in fee where an estate is given generally to him and his heirs.2

1 Tud. Lead. Cas. 482; Wms. Real Prop. 211.

2 Wms. Real Prop. 218.

3. This rule takes its name from an early case reported in Coke's Reports, as Shelley's, in which it was first authoritatively and formally declared, though it was then an ancient dogma of common law.1 Various theories have been suggested as furnishing a reason for this

rule in the first place. One is, that it was adopted in order [*269] to prevent the lord from being deprived *of his wardship by allowing the heir to take as purchaser instead of by descent.2 Another traces it to the same principle which applied, originally, to "heirs" when used in a conveyance. It was at first understood, that in case of such a limitation, the estate was in fact to go to the heirs of the grantee named, that though he had a right to enjoy it during life, he had no right to cut off the descent by alienation, and that when, therefore, the word "heirs," in the progress of estates, came to be regarded as a mere term of limitation, giving the grantee a complete ownership, with an unrestricted right of alienation, it was not easy to distinguish between a case where the limitation was to one and his heirs, and that where it was to him for life, and, after his death, to his heirs, the effect at common law being the same in both forms of limitation. Whether after a limitation to one for life, the limitation over was to his heirs generally, or to the heirs of his body, merely affected the form by which he could alienate the land, in the one case by feoffment, in the other by recovery. 4

4. The reason thus presented defines the limits of the rule, and furnishes a clue to determine whether any given case is within the rule or not. As a general proposition, wherever there is a freehold in an ancestor, and a remainder to his heirs, limited and created by the same instrument, it is the same as if the estate had been limited to the ancestor and his heirs.5

5. It is indispensable that the limitations should be by one and the same instrument, though it would seem to be sufficient, that the instrument which limited the estate for life contained a power of ap

1 Shelley's case, 1 Rep. 94; Wms. Real Prop. 209. Judge Blackstone traces it to

a case determined in the 18th Edw. II. See Hargr. Law Tracts, 568.

2 Watk. Conv. 106, Coote's note.

8 Wms. Real Prop. 209-211; 1 Prest. Est. 306; Tud. Lead. Cas. 482. See Hargr. Law Tracts, 573.

4 Wms. Real Prop. 209-211. See Hargr. Law Tracts, 564.

5 2 Flint. Real Prop. 131; Tud. Lead. Cas. 483; Wms. Real Prop. 211; Webster v. Cooper, 14 How. 500.