rule. I. THE rule in Shelley's case is a rule of law, and not Nature of the of construction (a). The rule simply is, that, where an estate of freehold is limited to a person, and the same instrument contains a limitation, either mediate or immediate, to his heirs or the heirs of his body, the word heirs is a word of limitation, i. e. the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the heirs of his body, he takes a fee-tail; if to his heirs general, a fee-simple (b). (a) The comprehensive nature of the present work renders it impossible to present more than a brief outline of the chief practical points, connected with the rule in Shelley's case, which require the attention of the student or the practitioner; and this plan is the more willingly submitted to, since the subject has received an elaborate investigation from several writers, who have VOL. II. R brought great learning and abilities (b) Shelley's case, 1 Rep. 93; CHAP. XXXVI. v. Blake. This is well illustrated in the celebrated case of Perrin Case of Perrin v. Blake (c). There A., by his will, declared, that if his wife should be enceinte with a child at any time thereafter (but which never happened,) and it were a male, he devised his real and personal estate equally to be divided between the said infant and his son W., when the infant should attain twenty-one; and he declared it to be his intent that none of his children should dispose of his estate for longer than his life; and to that intent he devised all his estate to the said W. and the said infant, for the term of their natural lives; remainder to G. and his heirs for the lives of the said W. and the infant; remainder to the heirs of the bodies of the said W. and the said infant lawfully begotten or to be begotten; remainder to the testator's daughters for the term of their natural lives, equally to be divided between them; remainder to G. and his heirs during the lives of the daughters; remainder to the heirs of the bodies of the said daughters, equally to be divided. The question was, what estate W. took. Lord Mansfield, Mr. Justice Aston and Mr. Justice Willes, (Mr. Justice Yates dissentiente,) held, that he was tenant for life only; but their judgment was reversed by a majority of the Judges in the Exchequer Chamber, who held, that W. took an estate tail. Rule never infringed. An appeal was brought in the House of Lords, but was compromised. Since this solemn determination (d), the rule in ques case, Moor.718; Whiting v. Wilkins, 1 Bulstr. 219; Rundale v. Eeley, Cart. (c) 4 Burr. 2579; 1 W. Blackst. (d) Indeed, for a long period antecedently, the point had been considered as settled beyond dispute; but in the interval between the judgment in B. R., and its reversal in the Exchequer Chamber, all was uncertainty. The profession beheld, with no small degree of consternation, a doctrine which had been tion has been regarded as one of the most firmly esta- CHAP. XXXVI. blished rules of property, and, strictly speaking, no instance can be adduced of a departure from it. Undoubtedly, in many cases a devise to a person for life, and, after his death, to the heirs of his body, has been held, by force of the context, to give an estate for life only to the ancestor (e); but this has been the result, not of holding the heirs of the body, as such, to take by purchase, but of construing those words to designate some other class of persons generally less extensive. The rule, therefore, was excluded, not violated, by this interpretation. question of Whether the testator, by this or any other expression, Preliminary mean to describe heirs of the body, is a totally distinct construction. inquiry, and has therefore, in the present Treatise, been separately discussed (g). The blending of the two questions tends to involve both in unnecessary perplexity. must be created strument. It is to be observed, that, to let in the application of Limitations the rule in Shelley's case, the limitations to the ancestor, by same inand to his heirs, must be created by the same instrument. Therefore, where (h) A. had, on the marriage of B., his son, settled lands on the son for life, remainder to the sons of that marriage successively in tail male, reversion to himself in fee, and by will devised the same to the issue of B. by any other wife in tail male; it was held, that this devise did not make B. tenant in tail, but gave his heir of the body an estate tail by purchase. regarded as an established principle of law, completely subverted. An interesting statement of the circumstances and progress of this case may be found in Mr. Hargrave's Law Tracts, and more particularly in Mr. Holliday's Life of Lord Mansfield-a book which, though not in high estimation as a biographical work, the writer remembers to have (e) See next chapter. (g) As to where heirs of the body, children, sons, and issue, are used as words of limitation, see post. (h) Moore v. Parker, Lord Raym. 37; S. C. Skinn. 558. CHAP. XXXVI. dule. But a will, and a schedule to it, are considered as one Will and sche- instrument for the purposes of this rule (i); and the same principle undoubtedly applies to a will and codicil, or several codicils. Deeds creating and exercising powers. Legal and equitable interests. Legal estate It is contended by Mr. Fearne (k), that, where one limitation is contained in an instrument creating a power, and the other in an appointment under such power, the rule will apply (7); but the position has been, with much reason, questioned by other learned writers (m). The rule in Shelley's case applies to equitable as well as legal interests; but the estate of the ancestor, and the limitation to the heirs, must be of the same quality, i. e. both legal or both equitable. It frequently happens, that a testator devises land in trust for a person for life, and, after his death, in trust for the heirs of his body, but gives the trustees some office in regard to the tenant for life, that causes them to retain the legal estate during his life, but which, ceasing at his death, does not prevent the limitation to the heirs of the body from being executed in them. In such cases, by the rule just stated, they take as purchasers (n). The converse case of course may, but it rarely does, occur (o). Where the limitations to the devisee for life, and to trust. the heirs of his body, both carry the legal estate, the fact CHAP. XXXVI. that one of them is subject to a trust does not prevent clothed with a the application of the rule. Mr. Fearne, indeed, seems to have been of a contrary opinion (p); but the affirmative has been successfully maintained by his learned editor and Mr. Preston (q), on the well-known principle, that trust estates are not objects of the jurisdiction of Courts of Law. In the recent case of Douglas v. Congreve (r), real and personal estate were given to a feme covert for life for her separate use, and, after her decease, to her husband for life, with remainder to the heirs of her body in tail, accompanied by a declaration that the aforesaid limitations were intended by the testator to be in strict settlement; and it was contended, that, as the testator had created a trust for the separate use of the devisee, she had merely an equitable interest, (the husband being a trustee for her,) with which the legal limitation to the heirs would not unite; but Lord Langdale conclusively answered this reasoning by observing, that the legal estate was vested in the wife, and that the power which the law gave to the husband over the real estate of his wife, does not alter the nature or quality of that estate. The estate of freehold may be an estate for the life of the devisee himself, or of another person, or for the joint lives of several persons, and may be either absolute or determinable on a contingency, as an estate durante viduitate (s), and may arise either by express devise, or by implication of law (t), which must be, we have seen, a necessary implication (u). (p) Cont. Rem. 35. (q) Treat. on Estates, 311. (r) 1 Beav. 59. (8) Merrill v. Rumsey, 1 Keb. 888; S. C. T. Raym. 126; Fea. C. R. 31; Curtis v. Price, 12 Ves. 89. (u) Ante, Vol. I., p. 460. Rule consider ed in relation to estate for life. |