Page images
PDF
EPUB

heirs female, vesteth in the tenant in tail himself. And it is good *to be *known that, for learning sake, and to find out the reason of the law, these limitations to the heirs male of the body, and after

(146)

*377 a.

(147)*

executed in the person to whose heirs it is limited. Alpass v. Watkins, 8 T. R. 516. Limitations of this kind are said to be executed sub modo, that is, to some purposes, though not to all; for though they are so far executed in, or blended with the possession, as not to be grantable away from, or without the freehold, by way of remainder; yet they are not so executed in possession as to sever the jointure, or entitle the wife of the person so taking the inheritance to dower. Ant. 184 a. vol. 1. p. 746; and see the books cited in n. (56)

there.

The rule in Shelley's case, however, does not apply where the ancestor takes only an estate for years (another person being the grantor); for, in such case, a remainder to his heirs, or to the heirs of his body, will not vest in himself, but in such heirs, by purchase. Post, 319 b. Sir C. Tippin's case, cited 1 P. Wms. 359. Neither will it take place, unless the particular estate of freehold, and the remainder to the heir or heirs of the body, are created by the same conveyance. Cranmer's case, 2 Leon. 57. Moor v. Parker, 1 Ld. Raym. 37. 2 Vern. 486. Doe v. Fonnereau, Dougl. 487. 510. Venables v. Morris, 7 T. R. 342. Fearn. Cont. Rem. 99. But as an appointment in pursuance of a power, when executed, is to be considered as if it had been inserted in the original deed by which the power of appointment was created, 7 T. R. 347; it seems, that where there is a limitation to a person for life by one deed, and the estate is afterwards limited to the heirs of his body, under an execution of a power of appointment contained in that deed, in such case the several limitations will consolidate. Fearn. Cont. Rem. 102. Prest. Ess. on Rule in Shelley's case, 57. And it is immaterial, with respect to this rule, whether the ancestor takes the freehold by express limitation, or by implication arising from the deed in which the estate is limited to his heirs, &c.; in either case the subsequent limitation vests in himself. Pybus v. Milford. 1 Ventr. 372.

It may be further observed, that the rule in question is only applied to limitations in which the word heirs" is used, on account of the peculiar signification of that word, and the maxim that nemo est hæres viventis; so that if lands are limited to A. for life, remainder to his first and other sons and the heirs of their bodies; or remainder to the child and children of A., or to the issue of A. and the heirs of their bodies; no more than an estate for life will vest in A., and the words son, child, or issue, will operate as words of purchase. Lewis Bowles's case, 11 Co. 30. And the rule does not extend to the word "heir" in the singular number, with words of limitation superadded. Walker v. Snow, Palm. 359. Nor where the estates are of different natures, as if the first limitation only gives a trust estate of freehold, and the subsequent limitation to the heirs of the body carries the legal estate. Lord Say and Sele v. Jones, 3 Bro. P. C. 113. Nor to cases of marriage articles; which being executory are construed according to the intention of the parties, whose chief object in such agreement, is to make a provision for the issue of the marriage; therefore where in marriage articles it is agreed to settle lands, to the use of the husband for life, with remainder to the heirs of his body, these last words are construed to be words of purchase, and to mean the first and other sons of the marriage, and the heirs of their bodies. 1 Bro. C. C. 222. Trevor v. Trevor, 1 P. Wms. 662. 1 Ab. Eq. 387. Cusack v. Cusack, 1 Bro. P. C. 470. And where articles and a settlement are made before marriage, and the settlement is made in pursuance of the articles, if the words "heirs of the body" are transcribed from the articles into the settlement, they will be altered in chancery, and the settlement will be rectified according to the intention of the articles, by making the husband only tenant for life, with remainders to the issue of the marriage. West v. Erissey, 2 P. Wms. 349. 3 Bro. P. C. 327. 1 Collect. Jur. 463. Hart v. Middlehurst, 3 Atk. 371. Roberts v. Kingsley, 1 Ves. 238. So if the settlement is made after the marriage, and adopts the words of the articles. Streatfield v. Streatfield, Forrest. 176. But this doctrine is adopted only in cases of marriage articles, and is not extended to limitations, in settlements, of the legal estate. Alpass v. Watkins, 8 T. R. 516. And, although where articles are entered into before marriage, and a settlement is made after marriage different from those articles, the court will set up the articles against the settlement; yet, where both the articles and settlement are previous to the marriage, at a time when all the parties are at liberty, and the settlement is not expressed to be made in pursuance of the marriage articles (as in the above cited case of West and Erissey) if such settlement differ from the articles, it will be considered as founded on a new agreement between them, and

(148)**

to the heirs female of the body, may be put: but it is dangerous to use them in conveyances, for, *great inconveniences may arise there

will control the articles. Legg v. Goldwire, Cas. Temp. Talb. 20. Fearn. Cont. Rem. 154. 4 Cru. Dig. 487.

The rule, in Shelley's case, has been adopted in the construction of assignments of terins for years; and the words "heirs of the body" have been held to be words of limitation, Peacock v. Spooner, 2 Vern. 43. 195. Webb v. Webb, 1 P. Wms. 132. Hayter v. Rod, 1 P. Wms. 360. 2 Ves. 660. Theebridge v. Kilburne, 2 Ves. 233: though the construction has been different where there were words of limitation superadded to the words "heirs of the body." Archer's case, 1 Co. 66. Hodsol v. Bussey, Forrest. MSS. S. C. 2 Atk. 89. Barnard. 199. Price v. Price, 2 Ves. 234. Sands v. Dixwell, 2 Ves. 652. 2dly. Of the application of the rule in Shelley's case, in the construction of surrenders of copyholds:-The rule under consideration is equally applied in construing surrenders of copyhold estates as in deeds; and therefore where a person surrenders to the use of himself for life, remainder to another in tail, remainder to his own right heirs, there the heirs shall take by descent. Gilb. Ten. 270. Fearn. Cont. Rem. 79. Allen v. Palmer, 1 Leon. 101. Roe v. Aistrop, 2 Bl. Rep. 1228. And Mr. Fearne observes, that where an estate for life is limited either to the father or mother only, and the subsequent limitation is to the heirs of both their bodies, the construction is the same in regard to copyholds as to freeholds; viz. the subsequent limitation does not vest in the ancestor taking the estate for life, but is a contingent remainder to the heirs of the bodies of both father and mother. Lane v. Pannel, 1 Rol. Rep. 238. Frogmorton v. Wharrey, 2 Bl. Rep. 728. In Lane v. Pannel, Lord Coke took a distinction between a limitation upon a surrender by a copyholder in fee to his own heirs general where he takes a preceding estate of freehold himself, and the like limitation where he takes no preceding freehold estate; a distinction which certainly has no place in respect of freehold lands; for in freeholds, we have seen, where the estate moves from the grantor, the ultimate limitation to his heirs general, though the ancestor takes no preceding freehold, will be a reversion in him, and part of the old estate, and the heir will take it by descent; but Lord Coke held, that where a person surrendered a copyhold to the use of himself for life, remainder to another in tail, remainder to the right heirs of the surrenderor, there the heirs should have it by descent; but otherwise, where the surrenderor had not an estate for life or in tail limited to him; for then his heir should enter as a purchaser, as if such use had been limited to the right heirs of a stranger. But Mr. Fearne observes, that the only ground upon which he could account for Lord Coke's opinion, is, the supposition that an entire new estate was created and derived under the uses of the surrender, throughout the whole of them, and that no estate taken under those uses is any part of the whole estate. Fearn. Cont. Rem. 87; and this notion has been entirely exploded by modern decisions. See Gilb. Ten. 272. Roe v. Griffiths, 4 Burr. 1952. Thrustout, d. Gower v. Cunningham, 2 Bl. Rep. 1046. Fearn. Cont. Rem. 90.

3d. Of the application of the rule in construing devises: The rule now under consideration having been established for purposes of general utility, it has been adopted in the construction of devises, as well as in that of deeds. But it being a principle of law, that the intention of the testator is to be the chief guide in construing wills; it has been often doubted how far the application of this rule should be extended, in contradiction to the intention of the testator. Fearn. Cont. Rem. 290. 299. It has, however, been uniformly applied to devises of legal estates. Rundale v. Eley, Cart. 170; although it appeared from other circumstances, besides an express devise for life, that the testator did not intend to give the first devisee a greater estate; such as a power to settle a jointure, with the concurrence of trustees; or an interposed estate to trustees to preserve contingent remainders; or a clause, that the devisee's estate should be without impeachment or waste. Broughton v. Langley, 2 Ld. Raym. 273. Papillon v. Voice, 2 P. Wms. 471. Sayer v. Masterman, Fearn. Cont. Rem. 250. Ambl. 344. Blandford v. Applin, 4 T. R. 82. Candler v. Smith, 7 T. R. 531. Cock v. Cooper, 1 East, 229. Pearson v. Vickers, 5 East, 548. Poole v. Poole, 3 Bos. & P. 627. Ant. vol. 1. p. 548. n. (N). So, although the limitation to the heirs be only mediate, yet the devisee will take an estate in fee or in tail, in remainder, to take effect in possession, upon the determination of the interposed estate: and the estate for life is not merged in the remainder. Coulson v. Coulson, 2 Atk. 247. Hodgson v. Ambrose, Dougl. 337. 3 Bro. P. C. 416. Thong v. Bedford, 1 Bro. C. C. 313. And the rule holds, although no estate for life is expressly devised, but arises by implication, Hayes v. Foord, 2 Bl. Rep. 698; and although the limitation be to the heir in the singular number. Burley's case, 1 Vent. 230. Wilkins v. Whiting, 1 Rol. Abr. 836. Bulstr. 219. 2 Vern.

upon; for if such a tenant in tail hath issue divers sons, and they have

issue divers daughters, and likewise if tenant in tail hath issue divers (149)*

324. Miller v. Seagrave, Rob. Gav. 96. Dubber v. Trollop, Rob. Gav. 96. Ambl. 453. Blackburn v. Stables, 2 Ves. and B. 371. And a devise to the heirs, or heirs of the body, of a prior devisee for life, with superadded words of limitation, will be construed within the rule in Shelley's case, Goodright v. Pullyn, 2 Ld. Raym. 1437. 2 Stra. 729. Legute v. Sewell, 1 P. Wms. 87. Morris v. Ward, 8 T. R. 518. 2 Burr. 1102. Denn, d. Webb v. Puckey, 5 T. R. 299; though there are some cases (which will be mentioned hereafter) in which a different construction prevails. The rule in question has also been applied to devises of trust estates, the construction of which is the same in the court of chancery, as it would be in a court of common law upon a devise of legal estate. Sweetapple v. Bindon, 2 Vern. 536. Fearn. Cont. Rem. 164. Bate v. Coleman, 2 Vern. 670. 1 P. Wms. 142. Garth v. Baldwin, 2 Ves. 646. Wright v. Pearson, Ambl. 358. Fearn. Cont. Rem. 187. Austen v. Taylor, Ambl. 376. Jones v. Morgan, 1 Bro. C. C. 206. And it takes place also in devises of copyhold estates. Lawsey v. Lowdell, 2 Rol. Abr. 253. pl. 4. Gilb. Ten. 270. Bushby v. Greenslate, 1 Str. 445; and in devises of terms for years: though if there appears any other circumstance or clause in the will to show the intention of the testator, that the words "heirs of his body," should be words of purchase, and not of limitation, then it seems the ancestor takes for life only, and his heir will take by purchase. Fearn. Ex Dev. 300. 3 Cru. Dig. 344.

The rule in Shelley's case, however, is not applied to devises, where the limitation is to sons or children, 1 Rol. Abr. 837. pl. 13. Ginger v. White, Willes, 348. Goodtitle v. Woodhall, Willes, 592. Goodright v. Dunham, Dougl. 264; or where words of explanation are added to the word "heirs," from whence it may be collected that the testator meant to qualify the meaning of the word "heirs," and not to use it in its technical sense, but as a description of the person to whom he intended to give his estate after the death of the first devisee. As where a person devised to his son B. I. and his heirs lawfully to be begotten; that is to say, to his first, second, third, and every son and sons lawfully to be begotten of the said B. I. and the heirs of the body of such first, second, third, and every son and sons successively, lawfully issuing; and in default of such issue, then to his right heirs for ever. It was resolved, that B. I. took only an estate for life; the word "heirs" being fully explained by the subsequent words to be a word of purchase. Lowe v. Davies, 2 Ld. Raym. 1561. Et vid. Doe v. Laming, 2 Burr. 1100. 1 Bl. Rep. 265. Rob. Gav. 95. Goodtitle v. Herring, 1 East, 264. Sed vid. Poole v. Poole, 3 Bos. & P. 620. And where words of limitation are superadded to the word "heir," in the singular number, from which it appears to have been the testator's intention to denote by the word "heir," a new stock and root of inheritance; or where the context shows that that word is not used in its technical sense; as the word "issue," or "without impeachment of waste;" a limitation to trustees to preserve contingent remainders; or a direction so to frame the limitation, that the first taker shall not have the power of barring the intail, in these cases, it will be construed a word of purchase and the first devisee will take an estate for life only. Archer's case, 1 Co. 66 b. Clarke v. Day, Moor, 593. Blackburn v. Stables, 2 Ves. & B. 371. And Mr. Fearne observes, that there may possibly be some cases, where the superadded words of limitation may be admitted to control the preceding words, heirs, heirs male, &c. though in the plural number; when such superadded words limit an estate to such heirs, heirs male, &c. of a different nature, from that, which the ancestor would take, if the preceding words, "heirs male," &c. in those cases, were taken as words of limitation. As in the case put by Anderson (1 Co. 95 b. et vid. 1 Atk. 413.) of a limitation to the use of a man for life, and after his decease to the use of his heirs, and the heirs female of their bodies: here the first word "heirs" would have given a fee to the ancestor, if taken as a word of limitation; whereas the subsequent words, "and the heirs female of their bodies," grafted on the word "heirs," could give only an estate tail female to the heirs. In such cases, the general effect of the first words, "heirs of the body," &c. seems to be altered, abridged, and qualified, by such subsequent express words of limitation annexed to them, as cannot possibly be satisfied by considering the first words as words of limitation. But we must take care to confine this observation to those cases, where the ingrafted words describe an estate descendible in a different course, and to different persons as special heirs, from what the first would carry the estate to; viz. to males instead of females, or vice versa; for where the first words give an estate tail general, and the words ingrafted thereon are words serving to limit the fee, seems by the general and better opinion, that the annexed words of limitation are not to be attended to, as in the cases of Goodright v. Pullyn, (2 Ld. Raym. 1437.) Wright v. Pear

it

[blocks in formation]

(150) daughters, and each of them hath issue sons, none of the daughters. of the sons, nor the sons of the daughters, shall ever inherit to either

*

son (Fearn. Cont. Rem. 187. Ambl. 358.), and King v. Rurchall (Ambl. 378.), where the ingrafted words limited the whole fee. Fearn. Cont. Rem. 286. So the rule is not applied to devises, where the remainder is given to the heir of the first devisee, for life only; in which case the first devisee will take no more than an estate for life. White v. Collins. Com. Rep. 289. And where the word "issue" is used with words of limitation superadded, it will be construed to be a word of purchase. Loddington v. Kyme, 1 Ld. Raym. 203. Backhouse v. Wells, 10 Mod. 181. And see Doe v. Collis, 4 T. R. 294. adj. acc. in which case Lord Kenyon observed, that, in a will, issue was either a word of purchase or of limitation, as would best answer the intention of the devisor; though, in the case of a deed, "issue" was universally taken as a word of purchase. Et vid. Doe v. Burnsall, 6 T. R. 30. But the word "issue," in a will, will not be construed to be a word of purchase, where the general intent requires a different construction. See King v. Melling, 1 Vent. 225. 232. 2 Lev. 58. 2 P. Wms. 472. King v. Burchall, 4 T. R. 296. n. Roe, d. Dobson v. Grew, Wilm. 272. 2 Wils. 322. In cases where the testator has directed a settlement to be made, and the court of chancery has been called upon to give directions respecting such settlement, the court has deviated from the rule in Shelley's case, and has so far departed from that which would be the legal operation of the words limiting the trust, if reduced to a common law conveyance as to construe the words "heirs of the body," although preceded by a limitation for life, as words of purchase, and not of limitation. But this has been done only in cases, where it appeared from some clause or circumstance essentially repugnant to the nature of an estate tail, that the devisor could only intend to give the first devisee an estate for life; and that he used the words "heirs of the body," for the purpose of describing the persons, to whom he meant to give the estate, after the death of the first devisee. Leonard v. Earl of Sussex, 2 Vern. 526. Stamford, (Earl of) v. Hobart, 3 Bro. P. C. 31. Papillon v. Voice, 2 P. Wms. 471. Ashton v. Ashton, 1 Collect. Jur. 402. Glenarchy v. Bosville, Forrest. 3. 1 Collect. Jur. 405. Meure v. Meure, 2 Atk. 265. And see the case of White v. Carter, Ambl. 670. adj. acc. in which Lord Camden took a distinction between the case, where a testator has given complete directions for settling his estate, with perfect limitations, and where his directions are incomplete, and are rather minutes or instructions, and cannot be performed in the words of the will. In the former case, said his Lordship, the legal expression shall have the legal effect, though perhaps contrary to his intention; as in Garth v. Baldwin, 2 Ves. 646. In the latter case, the court will consider the intention, and direct the conveyance according to it. And where there is a settlement without articles, the words will be left to their legal operation, unless from some recital in the deed, or some other circumstance, it clearly appears that the language of the limitation was owing to mistake. Butl. Fearn. Cont. Rem. 114. Ch. Ca. 27. Doran v. Ross, 1 Ves. jun. 57. Lastly, where the estate devised to the ancestor, is merely an equitable or trust estate, and that to his heirs, or the heirs of his body, carries the legal estate, they will not incorporate into an estate of inheritance in the ancestor; as would have been the case, if both had been of one quality, that is, both legal, or both equitable. Fearn. Cont. Rem. 68. For where the limitations are both legal, the estate-tail arises by legal construction or a rule of law; and when the limitations are both equitable (without other ingredients in the case to control the construction), a similar rule is adopted by equity, to preserve an uniformity in construction. But when both the estates are not legal, the application of a legal construction or operation of a rule of law, which must equally affect both, seems to be excluded, by one of the objects of that construction not being a subject of legal cognizance. So when both are not equitable estates, their combination seems to be out of the reach of an equitable construction, to which one of the estates is not adapted. Idem, 78. Et vid. Lord Say and Sele v. Jones, 3 Bro. P. C. 113. 8 Vin. Abr. 262. Shapland v. Smith, 1 Bro. C. C. 75. Silvester v. Wilson, 2 T. R. 444. Venables v. Morris, 7 T. R. 342. 438.

Thus stood the law with respect to the rule in Shelley's case, when the famous case of Perrin v. Blake arose, before the court of king's bench, in the year 1769; a case which, how much soever it has been regretted as having for a time unsettled the law with regard to this celebrated rule, yet has, in the end, been productive of the most important benefits to the profession, by having given rise to the admired essay, from which the preceding observations have been chiefly extracted. The case was this :-One W. Williams seised in fee of a plantation in Jamaica, devised in the following words:-"Should my wife be Enseint with child, at any time hereafter, and it be a female, I give and bequeath unto her

of the said estates tail: *and so it is of the issues of the issues, for (151)* that (as hath been said) the issues inheritable must make their claim

the sum of 20001. &c.; and, if it be a male, I give and bequeath my estate real and personal equally to be divided between the said infant and my son John Williams, when the said infant shall attain the age of twenty-one. Item, It is my intent and meaning, that none of my children should sell or dispose of my estate for longer time than his life; and to that intent I give, devise, and bequeath all the rest and residue of my estate to my son John Williams and the said infant, for and during the term of their natural lives, the remainder to my brother-in-law J. G. and his heirs, for and during the lives of my son John Williams and the said infant, the remainder to the heirs of the body of my said sons John Williams and the said infant lawfully begotten, or to be begotten, the remainder to my daughters, &c." Perrin v. Blake, 4 Burr. 2579. 1 Bl. Rep. 672. Dougl. 329. 1 Hargr. Law Tracts, 490. No other son was born; and the question was, what estate John Williams took under this will? Had this been the case of an executory trust, says Mr. Fearne, the court of chancery might possibly have construed it an estate for life in J. W., upon the clause expressing the testator's will, that his sons should not convey a greater interest than for their lives. But as it was the limitation of a legal and not a trust estate, the court of chancery itself (in conformity to its own established distinctions explained in the above mentioned cases of Leonard v. Earl of Sussex, 2 Vern. 526. Glenorchy v. Bosville, Cas. Temp. Talb. 19. Bagshaw v. Spencer, 2 Atk. 581. 1 Ves. 149.), we may suppose, would have decreed it an estate-tail in J. W. The court of king's bench, however, in the case of Perrin v. Blake, treated those distinctions as too refined; and adjudged, that J. W. took only an estate for life, under the devise in question. A writ of error was brought upon this judgment in the exchequer chamber; in which the judgment was reversed by the opinion of seven judges against one; so that, upon the whole, eight judges were of opinion that John Williams took an estate-tail; and four, that he took only an estate for life. An appeal was brought to the house of lords from the judgment of reversal in the exchequer chamber; but the parties at length compromised the dispute.

The subsequent cases of Hayes v. Foorde, 2 Bl. Rep. 698. Hodgson & Ux v. Ambrose, Dougl. 337. 3 Bro. P. C. 416. Jones v. Morgan, 1 Bro. C. C. 218, 219. Thong v. Bedford, 1 Bro. C. C. 313, and the recent decisions above cited under their respective heads, have again restored the doctrine respecting this celebrated rule to its former authority. And it is now finally settled, that "neither an intent manifested by the testator to give only an estate for life, nor the interposition of trustees to preserve contingent remainders, nor mere words of condition, describing the order of succession in which the devisees are to take place, nor the introduction of powers of jointuring, or of liberty to commit waste, are of themselves sufficient to vary the technical sense of the words used. It must plainly appear that the testator did not mean to give such an estate as would pass under the words used, unless controlled by such apparent intent." Per Lord Alvanley, C. J. Poole v. Poole, 3 Bos. & P. 620. 627. In order to ascertain the testator's presumable intention, in his use of the words, heirs, &c. we cannot refer the student to a better medium than the principles laid down by Mr. Hargrave, in his masterly observations on the rule in Shelley's case. That profound writer observes, that when it is once settled, that the donor or testator has used words of inheritance according to their legal import; has implied them intentionally to comprise the whole line of heirs to the tenaut for life; and has really made him the terminus or ancestor, by reference to whom the succession is to be regulated; then it will appear, that being considered according to those rules of policy from which it originated, it is perfectly immaterial whether the testator meant to avoid the rule or not; and that to apply it, and to declare the words of inheritance to be words of limitation, vesting an inheritance in the tenant for life as the ancestor and terminus to the heirs, is a mere matter of course. That on the other hand, if it be decided, that the testator or donor did not mean by the words of inheritance after the estate for life, to use such words in their full and proper sense; nor to involve the whole line of heirs to the tenant for life, and include the whole of his inheritable blood, and make him the ancestor or terminus for the heirs; but intended to use the word heirs in a limited, restrictive, and untechnical sense, and to point at such individual person, as should be the heir, &c. of the tenant for life at his decease; and to give a distinct estate of freehold to such single heir, and to make his or her estate of freehold the groundwork for a succession of heirs; and constitute him or her the ancestor terminus and stock for the succession to take its course from; in every one of these cases the premises are wanting, upon which only the rule in Shelley's case interposes its authority, and that rule becomes quite extraneous matter. The previous inquiry, therefore, will be, whether,

« PreviousContinue »