cession, and carry it through the same line of heirs, under the pretext of a descent, would not avail itself of any estate of freehold in the ancestor to avoid the necessity for such a fiction, and unequivocally avow a genuine perfect descent? (e) But, on the other hand, may it not be asked whether that law, which favoured pure descents so highly, and whose policy was so hostile to a discordant mixture of purchase and descent, would ever have endured such an amalgamation in any case, much less have been astute, as in Mandeville's case, to devise a plausible pretext for introducing so mischievous a novelty? Would this fiction of a vested inheritance in the ancestor be inconsistent upon principle with the reality of the freehold in him? By limiting the estate to A., for the life of B., in trust for B., remainder to the heirs of the body of B., or to A. for his life, remainder to B. in fee, in trust for the heirs of the body of A., it is clear that this mode of succession may always be created. The question is, whether, if no positive rule applicable to the subject were in force, the same construction could be adopted in the case of several legal limitations to the ancestor, and the heirs, that obtains where the limitations are of a different quality, or where no estate, or only a chattel interest, is limited to the ancestor? There does not appear to be any sound reason why it should not: but the question never can be satisfactorily solved, till the rule has ceased to govern the case, the

(e) Fearn. C. R. 143.

decision of which can alone afford such solution. "What had been," if the rule had not been laid down," is unknown;-what is, appears." If such construction would be held inadmissible, then the rule is merely the expression of a principle inherent in the very nature of our law of succession : if admissible, the rule is either a positive ordinance, (ƒ) introduced for the purpose of preventing frauds upon the tenure, or remedying some other particular mischief, against which no adequate provision would otherwise have existed; or a rule capriciously imposed for the narrow, and apparently unaccountable, purpose of assigning to certain limitations an operation contrary to their natural import, unless that operation be negatived by other expressions. The last of these suppositions stands excluded by its own absurdity; and with respect to the two former, if we adopt that which assumes the existence of a fundamental principle of legal policy decidedly hostile to the disunion of the two limitations,-why, it may be asked, has all the bitterness of judicial reproach been poured out solely upon the rule laid down in Shelley's case? Why has it been denounced as the single impediment to a liberal construction of the devise, and not unfrequently surmised to be a mere assumption of counsel in argument? Why have so many combatants entered the arena, and essayed their utmost strength and skill to overthrow the rule? This supposition

(f) Prest. Est. 297.

would reduce the whole conflict to mere knighterrantry.

Another distinguished writer upon the rule remains to be noticed. Mr. Preston in his Succinct View of the Rule in Shelley's case, (now incorporated into his work on Estates, of which it forms a distinct chapter) appears to me to have placed the rule, as regards its inflexible quality, upon the true ground; and that work, as originally written, is perhaps, better calculated to convey a just idea of the real nature and bearing of the rule, than even the more elaborate discussion of Mr. Fearne. "The rule (observes this writer (a)) is of positive institution, and has this circumstance of peculiarity and variance from rules of construction. Instead

of seeking the intention of the parties, and aiming at its accomplishment, it interferes in some, at least, if not in all, cases, with the presumable, and, in many instances, the express intention. In its very object the rule was levelled against the views of the parties." Again, (b) "it is clear that the case of Perrin v. Blake was completely within the reason and the terms of the rule; without any circumstance (besides the intention of the testator, as collected from the express estate for life, and the limitation to support contingent remainders, that the heirs should take distinctly from their ancestor) to shew that the testator did not use these words (heirs of the body) as words of limitation, that is, as com(b) Ib. 285.

(a) Prest. Est. 271.

prehending the whole class of heirs. This intention, so far from negativing the application of the rule, is the very ground and reason from which it had its origin." And in another passage, after noticing the mode in which the heirs were held to take in Mandeville's case, observing (ƒ) that, "strictly speaking, they do not take by descent; for they do not claim as heirs to the person in whom the estate first vests: he is not their ancestor; nor can they, with any precision, be said to take by purchase; for then they would take separate and distinct estates: they take in a mixed right: in a right which cannot be easily defined; by a quodam modo descent, a descent per formam doni under the statute of intails:" he adds, "when a gift to heirs of the body, taken separately, would confer an interest of this nature, then the rule will apply to a gift connected with an estate of freehold in the ancestor. This position seems to be so clearly maintainable, that every case of this description necessarily invites the application of the rule." But the student should read the Succinct View, as it stood, before an attempt to engraft upon it the principles of the modern decisions (g) had in a great measure destroyed the symmetry of its form, and the certainty of its conclusions, making that a mystery which ought to be a science.

It would be doing an injustice to the great names

(ƒ) Prest. Est. 281.

(g) Supra, Sect. IV.

which I have mentioned, to associate with them other writers, whose works, however respectable, (h)

(h) The rule is applied upon a principle, which is fully explained by Lord Chief Justice Wilmot in the case of Roe d. Dodson v. Grew, [infra, Sect. VII.] namely, that where a testator shews a particular, and also a general intent, which are inconsistent with each other, the general intent will be established, and the particular one disregarded. In all the cases where the rule has been applied, there was a devise to A. for life, with a subsequent devise to the heirs general or special or issue of A.; and the testator had a particular intent to give an estate for life only to A., and a general intent to give estates to all the descendants of A. If the will were construed according to the particular intent, the first devisee would take an estate for life only; and the words 'heirs,' or 'heirs of the body,' or 'issue,' must operate as words of purchase." 6 Cruis. Dig. 399.-Mr. Cruise thinks it an objection to this last construction, that the remainder to the heirs general would not embrace the whole line of heirs, (supra, 240.) and that though the remainder to the heirs special would take in all the heirs of that denomination, yet if the devisee had several sons, the first would take an estate tail, but none of the other sons would take vested estates, whilst the eldest or any issue of his body were in existence. But, if intention were the "pole-star," that construction must surely be the best which gives effect to the whole intention, as expressed in the will. Now it cannot be disputed that the intention is to give a particular estate of freehold only to the first taker, and a distinct remainder of inheritance to his heirs; and can there be a doubt that this intention would be most effectually consulted by permitting the heirs to take originally in their own right, to such an extent, and with such transmissible qualities, as the remainder to them might legally operate? Whence is this general intention collected? From the limitation to the heirs? The intention of that limitation is commensurate only with its legal operation. But if it expressed an intention more comprehensive than its legal im