and his sons in tail male, and for want of such issue male over; where A. has no sons gives him an estate tail. Wharton v. Gresham, 2 W. Bl. 1083; see Sparling v. Parker, 29 B. 450.

The rule in Wild's Case does not apply to personalty. The rule Audsley v. Horn, 26 B. 195, 1 D. F. & J. 226.

in Wild's Case does

not apply

V. THE RULE IN SHELLEY'S CASE.

The construction of devises to heirs and heirs of the body, after a prior estate of freehold in the ancestor, is governed by the so-called rule in Shelley's Case.

It may be laid down generally, that where the ancestor The rule in Shelley's by any will takes an estate of freehold, whether by impli- Case cation or direct limitation, and whether it may or may not stated. determine in his lifetime, and in the same will an estate is limited by way of remainder, either mediately or immediately, to his heirs in fee or in tail, that always in such case the heirs are words of limitation of the estate and not words of purchase, and therefore the ancestor takes an estate in fee or in tail as the case may be. Shelley's Case, 1 Co. 93 b.; Fearne, C. R. 33, 40; Pybus v. Mitford, 1 Ventr. 372; Curtis v. Price, 12 Ves. 99.

The two limitations must be in the same instrument, but the Court considers a will and codicils for this purpose as one instrument. Hayes d. Foorde v. Foorde, 2 W. Bl. 698.

The rule applies equally to limitations of freehold and copyhold estates, and to estates pur autre vie. Doe d. Jeff v. Robinson, 8 B. & Cr. 296; 2 Ma. & R. 249; see 2 D. & War. 327; Crozier v. Crozier, 3 D. & War. 373.

It applies to limitations, which are both legal or both equitable, even where the first is for the separate use of a married woman. Spence v. Spence, 12 C. B. N. S. 199; Fearne, C. R. 56; Pitt v. Jackson, 2 B. C. C. 51.

It does not apply to cases, where one limitation is legal and the other equitable. Right v. Creber, 5 B. & C. 866 ; Collier v. McBean, 34 L. J. Ch. 555.

The rule does not apply so as to destroy intermediate contingent limitations by merger, even in cases before 8 & 9 Vict. c. 106. Lewis Bowles' Case, 11 Rep. 80; Fearne, C. R. 36.

Nor does it apply where the estate to the heir is limited, not by way of remainder simply, but as a conditional limitation or as an alternative contingent remainder. Lloyd v. Carew, Prec. Ch. 72; Show P. C. 137; see Fearne, 275; Plunket v. Holmes, 1 Lev. 11; Raym. 28; Fearne, 341; Crofts v. Middleton, 2 K. & J. 194; 8 D. M. & G. 192; see In re White & Hindle's Contract, 7 Ch. D. 201. The rules of construction with reference to cases coming tion of the within the operation of the rule in Shelley's Case are the limita settled by the leading cases of Jesson v. Wright, 2 Bl. 1, and Roddy v. Fitzgerald, 6 H. L. 823.

Applica

rule where

tion is to

the heirs

or the heirs of

A. Where the words heirs or heirs of the body are used the body in the limitation of the inheritance the rule applies

of the ancestor.

Restric

tions upon

cestor are

iminaterial.

1. Although the limitation of the freehold to the ancestor may be followed by words clearly indicating an intention. that his estate is to be for life only.

Thus, it is immaterial, that the estate of the ancestor the estate may be declared to be "for life and no longer:" Roe d. of the an- Thong v. Bedford, 4 Mau. & S. 362, 1 B. C. C. 313; Robinson v. Robinson, 1 Burr. 38, 3 B. P. C. 180, 2 Ves. sen. 225; that he is made unimpeachable for waste; Jones v. Morgan, 1 B. C. C. 206; Bennett v. Earl of Tankerville, 19 Ves. 170; that powers are expressly given him which would be implied if he were tenant in tail, such as powers to jointure and make leases: Baile v. Coleman, 2 Vern. 668; Jones v. Morgan, 1 B. C. C. 206; Broughton v. Langley, 2 Ld. Raym. 873; that his estate is made subject to the obligation of keeping the buildings in repair: Jesson

v. Wright, 2 Bligh, 1; that there is a restraint upon alienation for longer than his life: Perrin v. Blake, 1 W. Bl. 672; Hayes d. Foorde v. Foorde, 2 W. Bl. 698; that, where there is no executory trust, there is a declaration that special care should be taken that it should never be in the power of the ancestor to dock the entail: Leonard v. Earl of Sussex, 2 Vern. 526; and that there is a limitation to trustees to preserve contingent remainders. Wright v. Pearson, Amb. 358; 1 Ed. 119.

limitation

the word

2. The rule applies, where words of limitation are Words of superadded to the limitation to the heirs or heirs of the superbody, provided such words are not inconsistent with the added to nature of the descent pointed out by the first words, for heirs will such words may be looked upon as an explanation of what it a word the testator supposed to be the course of the descent under an estate tail, and expressio eorum qua tacite insunt nihil operatur.

Thus words limiting the estate of the heirs to a life estate, or to a life estate without power to sell or dispose, will be rejected. Doe d. Elton v. Stenlake, 12 East, 515; Hugo v. Williams, 14 Eq. 224; Hayes v. Foorde, 2 W. Bl. 698.

The same will be the case with words of limitation in fee or in tail, superadded to the word heirs or heirs of the body.

Thus a limitation to the heirs of the body of the ancestor and their heirs, or their heirs, executors, administrators, and assigns for ever (a); or to the heirs male of the body of the ancestor, and their issue (b); or to the heirs male of his body in tail, in strict settlement (c); or to the heirs male of his body, and the heirs male of the body of every such heir male severally and successively as they should be in priority of birth, every elder, and the heirs male of his body, to be preferred to every younger (d); will not avail to give the heirs an estate by purchase. Morris d. Andrews v. Le Gay, cited 2 Burr. 1103, and 8 T. R. 518; Kinch v. Ward, 2

not make

of pur

chase.

Ꮓ

Words of distribution superadded.

Gavel

kind lands.

S. & St. 409; Measure v. Gee, 5 B. & Ald. 910; Nash v. Coates, 3 B. & Ad. 839 (a); Minshull v. Minshull, 1 Atk. 411 (b); Douglas v. Congreve, 1 B. 59 (c); Legatt v. Sewell, 1 Eq. Abr. 395, p. 7; 1 P. Wms. 37; see Fearne, 159, 160; see Fetherston v. Fetherston, 3 Cl. & F. 67; 9 Bl. 237 (d). 3. Words of distribution following the limitation of the inheritance will not prevent the application of the rule, "for it does not follow that the testator did not intend that heirs of the body should take because they could not take in the mode prescribed."

Thus a declaration that the heirs are to take as tenants in common, and not as joint tenants (a); or equally among them, share and share alike (b); or in such shares and proportions as the ancestor should appoint (c); or as well male as female," or "whether sons or daughters" as tenants in common (d), will not prevent the operation of the rule. Doe d. Candler v. Smith, 7 T. R. 531; Bennett v. Earl of Tankerville, 19 Ves. 170 (a); Doe d. Atkinson v. Featherstone, 1 B. & Ad. 944 (b); Jesson v. Wright, 2 Bl. 1; see Roddy v. Fitzgerald, 6 H. L. 823; Dunk v. Fenner, 2 R. & M. 557 (c); Doe d. Bosnall v. Harvey, 4 B. & C. 610; Pierson v. Vickers, 5 East, 548 (d).

In such a case it makes no difference that the lands are gavelkind. Doe d. Bosnall v. Harvey, supra, overruling Doe v. Laming, 2 Burr. 1100.

The absence of a gift over in default of issue is immaterial. Doe d. Atkinson v. Featherstone, 1 B. & Ad. 944. 4. Nor will words of distribution and limitation together, tion and superadded to the limitation of the inheritance, prevent limitation the operation of the rule.

Words of distribu

superadded.

It has sometimes been laid down that words of distribution and limitation together, superadded to the heirs, would make the latter a word of purchase, but the rule is now clearly settled, overruling Gretton v. Haward, 6 Taunt. 94; 2 Marsh. 9, and Crump d. Woolley v. Norwood, 7 Taunt.

362; 2 Marsh. 161; see Anderson v. Anderson, 30 Beav. 209; Mills v. Seward, 1 J. & H. 733; Grimson v. Downing, 4 Dr. 125; and see Jordon v. Adams, 9 C. B. N. S. 483.

Lord Chief Justice Cockburn, in the last cited case, p. 497, thus sums up the law with reference to the extent of the application of the rule in Shelley's Case, where the words heirs or heirs of the body are used: "No incident, superadded to the estate for life, however clearly showing that an estate for life merely, and not an estate of inheritance, was intended to be given to the first donee, nor any modification of the estate given to the heirs, however plainly inconsistent with an estate of inheritance, nor any declaration, however express or emphatic, of the devisor, can be allowed, either by inference or by force of express direction, to qualify or abridge the estate in fee or in tail, as the case may be, into which, upon a gift to a man for life, with remainder to his heirs or the heirs of his body, the law inexorably converts the entire devise in favour of the ancestor."

The words heirs or heirs of the body will, however, be construed as words of purchase:

limitation

added in

1. When words of limitation are superadded to them Words of inconsistent with the nature of the descent pointed out by superthe first words, as where the limitation is to a man for life, consistent and after his decease to the use of his heirs and the heirs with the female of their bodies. Fearne, C. R. 182; Shelley's Case, descent of 1 Rep. fol. 88, 95 b.

There appears to be no other authority for this rule than the argument of counsel in Shelley's Case, cited with approbation by Fearne, C. R., p. 182. It has, however, been followed in a case where the word issue and not heir was used. See Hamilton v. West, 10 Ir. Eq. 75. In that case the devise was to Margaret for life, remainder to her issue. female and the heirs of their bodies; and it was held that

course of

an estate tail in the ancestor.