a

pens. Thirdly; limitations over upon the determination of a preceding estate by a contingency, which, though such preceding estate takes effect, never happens. In this case the subsequent limitations will take place.b

(4.) Of the rule in Shelley's case.

с

The rule in Shelley's case has been already alluded to, but it occupies so prominent a pl place in the history of the law of real property, that it ought not to be passed over without more particular attention. In Shelley's case the rule was stated, on the authority of several cases in the Year Books, to be, "that when the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee, or in tail, the heirs are words of limitation of the estate, and not words of purchase." Mr. Preston, in his elaborate essay on the rule, gives us, among several definitions, one of his own, which appears to be full and accurate. "When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without

75.

a Davis v. Norton, 2 P. Wms. 390. Doe v. Shippard, Doug. Rep.

b Scatterwood v. Edge, 1 Salk. Rep. 229. Avelyn v. Ward, 1 Vesey's Rep. 422. To those who wish to pursue into greater detail these abstruse distinctions, I refer to Mr. Fearne's analysis of the cases which declare and enforce them, in order to carry into effect the intention of the testator.-Fearne on Rem. p. 300-817. It would certainly be incompatible with the general purpose of these essays, to be raking in the ashes of antiquated cases, and critically sifting dry facts and circumstances arising on wills and settlements, merely to arrive at some technical reasoning, adapted to promote the testator's or the settlor's views. As far as it is necessary, on this subject, it is happily done to our hand, by the acute investigations of Mr. Fearne himself.

c 1 Co. 104.

d Preston on Estates, vol. i. p. 263-419.

the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, the limitation to the heirs entitles the ancestor to the whole estate."a The words heirs, or heirs of the body, create a remainder in fee, or in tail, which the law, to prevent an abeyance, vests in the ancestor who is tenant for life, and by the conjunction of the two estates he becomes tenant in fee or in tail; and whether the ancestor takes the freehold by express limitation, or by resulting use, or by implication of law, in either case the subsequent remainder to his heirs unites with, and is executed on his estate for life. Thus, where A. was seised in fee, and covenanted to stand seised to the use of his heirs male, it was held, that as the use during his life was undisposed of, it of course remained in him for life by implication, and the subsequent limitation to his heirs attached in him."

The cases from the Year Books, as cited in Shelley's case, are 40 Edw. III. 38 Edw. III. 24 Edw. III. 27 Edw. III.; and Mr. Preston gives at large a translation of the first of these cases as being one precisely in point in favour of the rule. Sir William Blackstone, in his opinion in the case of Perrin v. Blake,d relies on a still earlier case in 18 Edw. II. as establishing the same rule. It has certainly the pretension of high antiquity, and it was not only recognised by the court in the case of Shelley, but it was repeated by Lord Coke, in his Institutes, as a clear and undisputed rule of law, and it was laid down as such in the great

a I have ventured to abridge the definition in a slight degree, and with some small variation in the expressions, without intending to impair its precision.

Pibus v. Mitford, 1 Vent. 372. Hayes v. Foorde, 2 Blacks. Rep. 698. Fearne on Rem. 42. 52, 53.

c The case of the Provost of Beverley, 40 Edw. III. Preston on Estates, vol. i. 304.

d Harg. Law Tracts, 501.

abridgments of Fitzherbert and Rolle.

The rule is equally rule is e applicable to conveyances by deed, and to limitations in wills, whenever the limitation gives the legal, and not the mere trust or equitable title; but there is more latitude of construction allowed in the case of wills, in furtherance of the testator's intention; and the rule seems to have been considered as of more absolute control in its application to deeds. When the rule applies, the ancestor has the power of alienation, for he has the inheritance in him; and when it does not apply, the children, or other relations under the denomination of heirs, have an original title in their own right, and as purchasers by that name. The policy of the rule was, that no person should be permitted to raise in another an estate which was essentially an estate of inheritance, and at the same time make the heirs of that person purchasers.

Various considerations have been supposed to have concurred in producing the rule, but the judges, in Perrin v. Blake, imputed the origin of it to principles and policy deduced from feudal tenure, and that opinion has been generally followed in all the succeeding discussions. The feudal policy undoubtedly favoured descents as much as possible. There were feudal burdens which attached to the heir when he took as heir by descent, from which he would have been exemted if he took the estate in the character of purchaser. An estate of freehold in the ancestor attracted to him the estate imported by the limitation to his heirs, and it was deemed a fraud upon the feudal fruits and incidents of wardship, marriage and relief, to give the property to the ancestor for his l'e only, and yet extend the onjoyment of it to his heirs, so as to enable them to take as purchasers, in the same manner, and to the same extent precisely, as if they took by hereditary succession.

The

a Fitz. Abr. tit. Feoffment, pl. 109. Co. Litt. 22. b. 319. b. 2 Rol· .Abr. 417.

policy of the law would not permit this, and it accordingly gave the whole estate to the ancestor, so as to make it descendible from him in the regular line of descent. Mr. Justice Blackstone, in his argument in the Exchequer Chamber, in Perrin v. Blake, does not admit that the rule took its rise merely from feudal principles, and he says he never met with a trace of any such suggestion in any feudal writer. He imputes its origin, growth, and establishment, to the aversion that the common law had to the in heritance being in abeyance, and it was always deemed by the ancient law to be in abeyance during the pendency of a contingent remainder in fee, or in tail. Another founda tion of the rule, as he observes, was the desire to facilitate the alienation of land, and to throw it into the track of commerce one generation sooner, by vesting the inheri tance in the ancestor, and thereby giving him the power of disposition. Mr. Hargrave, in his observations concerning the rule in Shelley's case, considers the principle of it to rest on very enlarged foundations, and though one object of it might be to prevent frauds upon the feudal lord, another, and a greater one was, to preserve the marked distinctions between descent and purchase, and prevent title by descent from being stripped of its proper incidents, and disguised with the qualities and properties of a purchase. It would, by that invention, become a compound of descent and purchase-an amphibious species of inheritance, or a freehold with a perpetual succession to heirs without the other properties of inheritance. In Doe v. Laming, Lord Mansfield considered the maxim to have been originally introduced, not only to save to the lord the fruits of his tenure, but likewise for the sake of specialty creditors. Had the limitation been construed a contingent remain

der, the ancestor might have destroyed it for his own benefit, and if he did not, the lord would have lost the fruits of his tenure, and the specialty creditors their debts.

But, whatever may have been the original cause and true policy of the rule, it has been firmly established as an axiom in the English law of real property for near five hone dred years; and yet it is admitted to interfere, in most cases, with the presumed, and in many others with the declared intention of the parties to the instrument to which it is applied. The rule as to legal estates has had a prescriptive and uncontrollable authority, but the courts of equity have not considered themselves bound to an implicit observance of it in respect to limitations which do not include or carry the legal estate. In marriage articles, for instance, where there is a covenant to settle an estate upon A. for life, and the heirs of his body, the courts look at the end and consideration of the settlement, and beyond the legal operation of the words; and heirs of the body are construed to be words of purchase, and an estate for life only is decreed to the first taker, and an estate tail to his eldest son, in order to carry marriage articles into execution by way of strict settlement. So, also, in decreeing the execution of executory trusts, the Court of Chancery has departed from what would be the legal operation of the words limiting the trust, when applied to legal estates; and the word heirs of the body of cestui que trust, although preceded by a limitation for life to the cestui que trust, are construed to be words of purchase, and not of limitation." When the testator devises the legal estate, he takes upon himself to order the limitations, and the rules of law will .control them. But when the will or settlement is in the

a Trevor v. Trevor, 1 Eq. Cas. Abr. 387. pl. 7. Jones v. Laughton, ibid. 392. pl. 2. Streatfield v. Streatfield, Cases temp. Talb. 176. Honour v. Honour, 2 Vern. 658. Bale v. Coleman, 1 P. Wms. 142. Highway v. Bonner, 1 Bro. 584.

b Fearne, p. 141.