pointment which should be executed to the heirs of the same person.1 But a will and a codicil, it seems, are considered as one instrument upon such a limitation.3 in their effect 6. If an estate be limited to the heirs of A, A himself takes nothing, and his heirs take as purchasers, being merely designated as persons by the term heirs, such an estate is not within the rule.1 7. The first estate limited must be a freehold created either expressly or by implication. In either form it will be sufficient. Thus where A covenanted to stand seised to the use of his heirs male, he retained, by implication, an estate for life, which, united with this estate to his heirs male, gave him a fee-tail.5 8. In the next place, the subsequent limitation to the heirs must be to the heirs of the ancestor who takes the particular estate. Thus where the estate was limited to the wife for life, remainder to the heirs of the bodies of the husband and wife, the freehold being in the wife alone, the limitation over would be a remainder, and their heirs would take as purchasers. Whereas, had the first limitation been to the husband and wife, with remainder to the heirs of their bodies, the heirs would take by descent.7 9. But it is not necessary that the limitation to the heirs should be to be enjoyed immediately upon the death of the first taker. be any number of intermediate estates, interposed between that of the first taker and the enjoyment of the estate in possession which is limited to the heirs. Nor does the length of .these affect the limitation, if no one of them is a fee-simple.8 Nor There may Tud. Lead. Cas. 483; Watk. Conv. 107, Coote's note; Watk. Descent, 2d ed. 236; Co. Lit. 299 b, note 261; 1 Prest. Est. 324. Moore v. b, Butler's note, 261; Adams v. Guerard, 29 Ga. 675. Parker, 1 Ld. Raym. 37; Doe v. Fonnereau, Dougl. 508; Co. Lit. 299 'Hayes note. Foorde, 2 W. Bl. 698; Tud. Lead. Cas. 484; Wms. Real Prop. 211, Wms. Real Prop. 216. 'Pibus v. 486. 8 Mitford, 1 Ventr. 372; Watk. Descent, 2d ed. 242; Tud. Lead. Cas. Watk. Descents, 2d ed. 241. Watk. Descents, 2d ed. 241; Webster v. Cooper, 14 How. 500. will it have any effect to exclude the rule, that the remainder cannot, by possibility, vest as a remainder in the lifetime of the [*271] ancestor, as where the limitation was to A and B and the heirs of him who should die first. So if the remainder be limited on a contingency, which does not happen in the ancestor's lifetime, nevertheless the heirs will take by descent.1 The mere circumstance that the remainder was contingent does not prevent the operation of the rule the moment the remainder vests. Thus an estate limited to A for life, and if A survives B, then to his heirs, would be a contingent remainder in A, depending upon his surviving B. If he does, his estate becomes at once vested, and his term for life merges in the inheritance.2 10. It was stated in the chapter on Trust Estates, that the rule in Shelley's case applies to equitable as well as to legal estates in the case of executed trusts. But there are certain limitations of this application, and among them is the requirement, that the two estates, the freehold and the remainder, should both be legal or both equitable. But where one is legal and the other equitable, the rule does not apply, and the heirs take as purchasers. And if the trusts are executory, such as arise, for instance, under a marriage settlement, they will not be held to come within the rule where such is not the intention of the parties. 11. It seems that where both the estates are legal, the fact that a trust is attached to one of them will not prevent the rule in Shelley's case from applying.7 12. As a consequence from the foregoing principles, whoever has a freehold, which, by the terms of the limitation is to go to his heirs, may alien the estate, subject only to such limitations as may have been created between his freehold and the inheritance lim-. 1 Watk. Conv. 107, Coote's note; Watk. Descents, 2d ed. 247. 22 Flint. Real Prop. 129. 3 Ante, p. *186. 4 Watk. Conv. 107-109, Coote's note. 5 Tud. Lead. Cas. 484; Watk. Descents, 2d ed. 238; Silvester v. Wilson, 2 T. R. 444; Doe v. Ironmonger, 3 East, 533; Adams v. Adams, 6 Q. B. 860; Ward v. Amory, 1 Curtis, C. C. 419. 66 Cruise, Dig. 307; Watk. Conv. 109, Coote's note; Jones v. Laughton, 1 Eq. Cas. Abr. 392; ante, p. *186. 7 Tud. Lead. Cas. 484, cites Douglas v. Congreve, 1 Beav. 59, s. c. 4 Bing. N. 1 ited to his heirs. Thus where the limitation is to A *for [272] life, and after his death to B for life, and after his decease to the heirs of A, A practically has two estates, one in possession, the other in remainder; the first for life, the other in fee, divided. by the estate to B. And if B were to die in the life of A, his lifeestate would merge, and he would at once become the unlimited tenant in fee of the estate.2 Instead of the intermediate estate to B being for life, it might be to him in tail male, and upon default of issue, to the heirs of A, and still A would take an estate for life with a feesimple in remainder expectant upon the determination of the estate So an estate may be limited to A and the heirs male of his body, and in default of such heirs to the heirs female of his body, where, if his heirs female take upon failure of heirs male, they do so as heirs of A, and not as purchasers. The word "heirs" in these tail in B. is a word of limitation of the estate which the ancestor and like cases, takes. It would make no difference though the estate of A were a defeasible one, of A and that of A's heirs to take effect upon its being defeated. Thus, where the estate was for life to A, a widow, provided she should remain unmarried, and after her marriage to B during her life, and after her death to her heirs, in this case A would practically have a fee-simple, subject only to B's remainder dependent upon her marrying again. She might accordingly convey the estate, subject only to B's contingent interest.5 and a second estate were limited between the estates it 13. While it is the remainder and not the particular estate upon which the rule in Shelley's case operates, in these and like cases, nevertheless is an indispensable prerequisite, that the particular estate should be one of freehold, in order to give vitality to its action at all.6 14. But wherever the rule does apply, it is, as a rule of the comimperative, that though there be an express mon law, SO it will not defeat its union with the subsequent limitation to 'declaration that the ancestor shall only have a life-estate, [*273] his heirs.7 So, though the limitation be accompanied by a declara Wms. Real Prop. 213. Wms. Real Prop. 214; 1 Prest. Est. 306. 2 Wms. Real Prop. 212, 213. Wms. Real Prop. 216; Tud. Lead. Cas. 486. tion to the effect that the heirs shall take as purchasers, or is made to the heirs of the first taker and their heirs,1 or where the estate is to A for life, and after his death to the heirs of his body, to share as tenants in common or to be equally divided between them, it comes within the rule. "Heirs of the body" means, in legal phrase, one person at a time, but includes all the posterity of the donee in succession. The general intent when thus expressed shall not be defeated by an expression of a particular intent, as to how that general intent shall be carried out, if both cannot take effect.2 But where the course of descent is added by the superadded words, as where a limitation is made to A for life, and after his decease to his heirs, and their heirs female of their bodies, it becomes requisite that the heirs take as purchasers in order to give effect to the limitation to the heirs female, &c. And consequently the rule in Shelley's case will not be applicable.3 15. The test, as given by Mr. Hargrave in such and similar cases, is "whether the party entailing means to build a succession of heirs on the estate of the tenant for life." "If he does, then he (the Judge) should apply the rule, even though the party should express in his will that the rule should not be applied, and that the remainder to the heirs of the tenant for life should operate by purchase." or 16. But where the limitation of the remainder is to a son or sons, to children or issue, or to an heir or heirs of him to whom the first estate for life is limited, if the term heirs is clearly intended as a descriptio persona, the individual or persons thus designated [*274] take as purchasers, and do not come *within the rule under consideration. If, however, the term made use of in the 1 Tud. Lead. Cas. 489; Watk. Conv. 108, Coote's note; Hargr. Law Tracts, 562; Toller v. Attwood, 15 Q. B. 929. 2 Watk. Conv. 108, Coote's note; Tud. Lead. Cas. 499; Jesson v. Doe, 2 Bligh, 1, overruling Doe v. Goffe, 4 East, 668; Doe v. Harvey, 4 B. & C. 610. 8 Tud. Lead. Cas. 493, vid. McCullough v. Gliddon, 33 Ala. 208. 4 Hargr. Law Tracts, 460. 5 Tud. Lead. Cas. 493; 2 Flint. Real Prop. 128; Watk. Conv. 108, Coote's note; Poole v. Poole, 3 Bos. & P. 620; White v. Collins, Com. 289; Cursham v. Newland, 2 Bing. N. c. 58, s. c. 4 M. & W. 101; Greenwood v. Rothwell, 5 Mann. & G. 628; Slater v. Dangerfield, 15 M. & W. 263, and note to Am. ed.; Abbott v. Jenkins, 10 Serg. & R. 296; Webster v. Cooper, 14 How. 500; Tyler v. Moore, 42 Penn. St. 374, 388. So it is with resorted to, And if, as limitation is "son" or "child," and it is used in the sense of heirs, and not as a designatio persona, but comprehending a class to take by inheritance, it is to be taken as a term of limitation, and accordingly brings the case within the rule in Shelley's case. the word "issue." The context in these cases may be to get at the sense in which the term or terms are used. thus construed, heirs in the technical sense are intended, the case would come within the rule.1 These points having been the subject of consideration in several recent cases, may justify adding to what has been said, what might otherwise seem to be little more than a repetition. Thus the words "child or children" are, in their usual sense, words of purchase, and are always so regarded, unless the testator has unmistakably used them as descriptive of the extent of the estate given, and not to designate the donees. But they may be used as words of limitation.2 On the other hand, "heirs" may sometimes mean the same as child or children. But the testator's intent to use it thus must be clear, and something more than implication, otherwise it is a word of limitation. On the other hand "issue" in a will, is either a word of purchase or inheritance, as will best answer the intention of the devisor. In case of a deed, it is always taken as a word of purchase. And when used as a word of purchase in a deed, or will, it is synonymous and coextensive with the term "descendants," and includes all persons who answer that description.5 17. As the rule in Shelley's case is a part of the common law of every State where it has not been repealed by statute,6 little need be added upon this subject in connection with its application to Ameri can law. Mr. Rawle, in his note to Williams' Treatise on Real Property, states, that the rule in Shelley's case prevails in Maryland, Georgia, Tennessee, and Pennsylvania. By a recurrence to the 12 Flint. Real Prop. 128; Tud. Lead. Cas. 496; Robinson v. Robinson, 1 Burr. 38; Doe v. Davies, 4 B. & Ad. 43; Shaw v. Weigh, Strange, 798; Lees v. Mosley, 1 Younge & C. 589. Haldeman v. Haldeman, 40 Penn. St. 35. Criswell's Appeal, 41 Penn. St. 290. See Macumber v. Bradley, 28 Conn. 445; Jones v. Miller, 13 Ind. 337. 'Doe v. Price v. Collis, 4 T. R. 299; Price v. Sisson, 13 N. J. 177. Sisson, súp., and cases there cited. 'Powell v. 1Wms. Real Prop. 241, Rawle's note. Brandon, 24 Miss. 353, 364. |