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.

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 fec.

13. The rule applies to the remainder, and not to 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 in many of the United States,

come within what is called the Rule in Shelley's Case, [*268] the peculiarity of which is, that, while in form the

estate has two parts, a 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

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

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.1

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.2 Various theories have been suggested as furnishing a reason for this rule in the first place. One is, that it was adopted in order to prevent the lord from being deprived * of his wardship by allowing the heir [*269] to take as purchaser instead of by descent. 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 limi

1 Wms. Real Prop. 218.

2 Shelley's case, 1 Rep. 94; Wms. Real Prop. 209. Judge Blackstone traces it to a case determined in the 18th Edw. II. A. D. 1325 (see Hargr. Law Tracts, 568); whereas Shelley's case was not decided till 23 Eliz. A. D. 1581.

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

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

tation 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 feofment, in the other by recovery.1

4. The reason thus presented defines the limits of the rule, and furnishes a clew 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.2 Thus, where the devise is to the first taker expressly for life, with a limitation to his heirs of his body, it creates an estate-tail in the first taker. Nor would it make any difference, that, in case of default of issue, it is to go to a brother, since the failure of issue is not definite, and it is contingent when it will fail.3

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 appointment which should be executed to the heirs of the same person. But when an estate for life only is given, followed by a general power of appointment, and on failure to appoint, then to children or special heirs, the power to appoint will not enlarge the estate of the life-tenant to a fee or fee-tail, and the children, or special heirs as they are termed, take by purchase, and not by descent. It is otherwise, where, upon failure to appoint, the remainder is to the "heirs" of the life-tenant.5 Where, therefore, one by deed granted to his son an estate for life, and afterwards gave the reversion by devise to the heirs, or the heirs of the [*270] body of the son, it was held, that the son only took a life-estate, and that his heirs took by purchase.

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

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

8 Ogden's Appeal, 70 Penn. St. 509.

4 Tud. Lead. Cas. 483; Watk. Conv. 107, Coote's note; Watk. Descents, 2d

ed. 236; Co. Lit. 299 b, note 261; 1 Prest. Est. 324.

5 Yarnal's Appeal, 70 Penn. St. 342; Dodson v. Ball, 60 Penn. St. 497.

6 Moore v. Parker, 1 Ld. Raym. 37; Doe v. Fonnereau, Dougl. 508; Co. Lit. 299 b, Butler's note, 261; Adams v. Guerard, 29 Ga. 675.

But a will and a codicil, it seems, are considered as one instrument in their effect upon such a limitation.1

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.2

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. But a feofment to the use of A for life, remainder to B, if A refuses to accept, B takes the estate presently. But if this had been by way of covenant, B would not take it until A's death: the estate in the mean time vests in the covenantor, because he has not parted with the possession, and therefore he will have the use.1

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. And an estate to A, B, and C, for their respective lives, and after their deaths to the next lawful heir of A, created a fee-simple in A; and the courts, in the case supposed, point out the distinction between this and Archer's case, where the estate was to A for life, remainder to his heir and the heirs male of his heir, where A took an estate for life only, and the heir took a contingent remainder as purchaser.7

1 Hayes v. Foorde, 2 W. Bl. 698; Tud. Lead. Cas. 484; Wms. Real Prop. 211, note.

2 Wms. Real Prop. 216.

Pibus v. Mitford, 1 Ventr. 872; Watk. Descents, 2d. ed. 242; Tud. Lead. Cas. 486.

4 Pybus v. Mitford, 2 Lev. 77.

5 Watk. Descents, 2d ed. 241.

6 Watk. Descents, 2d ed. 241; Webster v. Cooper, 14 How. 500.

Fuller v. Chamier, L. R. 2 Eq. Cas. 682, 686; Archer's case, 1 Co. 66 b.

9. But it is not necessary that the limitation to the heirs should be enjoyed immediately upon the death of the first taker. There may 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. Nor will it have any effect to exclude the rule, that the remainder cannot by possibility vest as a remainder in the lifetime of the ancestor, as where the [*271] 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.2 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.3

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.7

1 Watk. Descents, 2d ed. 246; Wms. Real Prop. 212, 213.

2 Watk. Conv. 107, Coote's note; Watk. Descents, 2d ed. 247.

2 Flint, Real Prop. 129.

Watk. Conv. 107, Coote's note.

4 Ante, p. *186.

6 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.

76 Cruise, Dig. 307; Watk. Conv. 109, Coote's note; Jones v. Laughton, 1 Eq. Cas. Abr. 392; ante, p. *186.