ately to his heirs in fee or in tail, the word "heirs" is a word of limitation and not of purchase.1 This rule is called the "rule in Shelley's Case," but it is evidently in some degree a misnomer since the rule was recognized as being well established when Shelley's Case was argued. Counsel for Henry Shelley gave the rule as being then well known, in the very words used by later writers to define it. There are an untold number of cases wherein the rule may be found to be stated in varying ways, and the reader is referred to the footnote for the cases from the different jurisdictions. In some of the decisions the word "freehold" is used to describe the ancestor's estate, while in others it is described as a "life estate." This latter is considered the most accurate.2 1 Shelley's Case, 1 Coke 93b, 104a. "No question connected with the law has elicited more learning and discussion than that which relates to the nature and operation of this rule, as a principle of law for the interpretation of wills and deeds; and none occupies a more prominent place in the history of the law of real property." -Ware v. Richardson, 3 Md. 505, 56 Am. Dec. 562. 2 Daniel v. Whartenby, 17 Wall. (U. S.) 639, 21 L. Ed. 661; Ewing v. Standefer, 18 Ala. 400; Goodrich v. Lambert, 10 Conn. 448; Jones v. Jones, 20 Ga. 699; Lord v. Comstock, 240 Ill. 492, 88 N. E. 1012; Haight v. Royce, 274 Ill. 162, 113 N. E. 71; Lee v. Lee, 45 Ind. App. 645, 91 N. E. 507; Zavitz v. Preston, 96 Iowa 52, 64 N. W. 668; Calmes v. Carruth, 12 Rob. (La.) 660; Hall v. Gradwohl, 113 Md. 293, 29 L. R. A. (N. S.) 954, 77 Atl. 480; Sands v. Old Col. ony Trust Co., 195 Mass. 575, 12 Ann. Cas. 837, 81 N. E. 300; Fraser v. Chene, 2 Mich. 81; Tesson v. Newman, 62 Mo. 198; Dennett v. Dennett, 40 N. H. 498; Brown v. Wadsworth, 168 N. Y. 225, 61 N. E. 250; Perry v. Hackney, 142 N. C. 368, 115 Am. St. Rep. 741, 9 Ann. Cas. 244, 55 S. E. 289; Crandell v. Barker, 8 N. D. 263, 78 N. W. 347; Peirce v. Hubbard, 152 Pa. St. 18, 25 Atl. 231; Buist v. Dawes, 4 Rich. Eq. (S. C.) 421, 423; Polk v. Faris, 9 Yerg. (Tenn.) 209, 30 Am. Dec. 400; Chipps v. Hall, 23 W. Va. 504. §899. Purpose of the Rule. The rule is venerable for its antiquity and has received the sanction of the highest courts in England as far back as the 18th year of Edward II, and is based on their authority as found in the year books of that and subsequent reigns. The conditions for which it was intended to operate as a remedy are mere matters of conjecture. It has been said to have been established in feudal times to save to the lord the profits of his feudal rights, for if the heir took as a purchaser under the conveyance without claiming anything from his ancestor, the lord would have been deprived of the rights of wardship and marriage of the heir.1 3 Sir Wm. Blackstone in Perrin v. Blake, 4 Burr. 2579; Harg. L. Tracts, 501. 4 In Perrin v. Blake, 4 Burr. See, also, Turman v. White's Sir William Blackstone, in Per- Mr. Petersdorff in his Abridgment states the reasons to be, that "If the construction had been made according to the strict meaning of the words A would have taken only an estate for life, and the remainder to the heirs, etc., of A would have been considered as words of purchase, giving a contingent remainder to the heirs, etc., of A, according to the rule of the law that nemo est hæres viventis; but such a construction would have been attended with these inconveniences: 1. The lord of the fee would have been deprived of the wardship and marriage of the heir; because, in that case, the heir would have taken as a purchaser, without claiming anything from his ancestor by descent. 2. The remainder to the heir or heirs of the body being contingent until the death of the ten N § 900. Reasonableness of the Rule. The controversies regarding this rule have been long and bitter. Whatever its origin may have been, it was obviously consistent with public policy and commercial convenience, otherwise it would scarcely have survived for a period of some five ant for life, the inheritance would have been in suspension or abeyance, which was never allowed but in cases of absolute necessity; because the abeyance of the inheritance created a suspension of various operations of law, particularly of the remedies for the recovery of land by real actions. 3. If the remainder in those cases had been construed to be contingent, no alienation could have taken place in the lifetime of the ancestor."-See Siceloff v. Redman's Adm'r, 26 Ind. 251. Another reason assigned for the rule is "That the rule in Shelley's Case is a part of an ancient policy of the law to guard against the creation of estates of inheritance with qualities, incidents, and restrictions foreign in their nature, and to preserve the marked distinction between the acquisition of a title by descent and by purchase and to prevent the former from being stripped of its proper incidents and disguised with the qualities of the latter, whereby the estate would become a compound of descent and purchasean amphibious species of inheritance or freehold, with unlimited succession to the heirs without hundred years. It became the properties of inheritance."Hargrave's Law Tracts, 489, 551. "Whatever reasons may have induced the rule in its origin, it has ever been regarded by many of the ablest jurists, even in England, where it originated, with disapprobation, as productive of injustice, and especially in its application to devises, by casting the estate in fee upon the tenant for life, and thereby defeating the remainder to the heirs, in viola tion of the clearly expressed intention of the testator."-Siceloff v. Redman's Admr., 26 Ind. 251. 5 One of the most famous cases, that of Perrin v. Blake, 4 Burr. 2579, 1 W. Bl. 672, extended in litigation for more than thirty years and resulted in the dismem berment of the court of King's Bench where Lord Mansfield, in delivering the opinion of the court, used sarcastic language which gave offense to his associate Justice Yates, who thereupon resigned. 6 Doyle v. Andis, 127 Iowa 36, 40, 4 Ann. Cas. 18, 69 L. R. A. 953, 102 N. W. 177; Polk v. Faris, 9 Yerg. (Tenn.) 209, 30 Am. Dec. 400. firmly established as a rule of law and not of construction, for it has more commonly defeated than carried into effect the intention of the testator. The rule was always regarded in England as an artificial one, tending to defeat the testator's purpose, and in many of the American states there has been considerable hesitation in accepting and applying it to the fullest extent. However, it has been accepted as a rule of the common law, and some decisions deny it is arbitrary, but on the contrary uphold it as logical and apparently necessary. 7 Goodtitle v. Herring, 1 East 264; Long v. Laming, 2 Burr. 1100, 1111, 1112; Legate v. Sewell, 1 P. Wms. 87; Papillon v. Voice, 2 P. Wms. 471; King v. Melling, 1 Vent. 225; Jones v. Rees, 6 Penn. (Del.) 504, 16 L. R. A. (N. S.) 734, 69 Atl. 785; Ridgeway v. Lanphear, 99 Ind. 251; Henderson v. Henderson, 64 Md. 185, 1 Atl. 72; Webb v. Sweet, 187 N. Y. 172, 79 N. E. 1024; Blake v. Stone, 27 Vt. 475; Smith v. Hastings, 29 Vt. 240. See, also, Daniel v. Whartenby, 17 Wall. (U. S.) 639, 21 L. Ed. 661; Clarke v. Boorman's Ex'rs, 18 Wall. (U. S.) 493, 21 L. Ed. 904. 8 Turman v. White's Heirs, 14 B. Mon. (Ky.) 560. "It is a rule or canon of property which, so far from being at war with the genius of our institutions or with the liberal and commercial spirit of the age— which alike abhor the locking up and rendering inalienable real estate and other property-seems to be in perfect harmony with both. It is owing perhaps to this circumstance that the rule-a Gothic column found among the remains of feudality-has been preserved in all its strength, to aid in sustaining the fabric of the modern social system."-Polk v. Faris, 9 Yerg. (Tenn.) 209, 30 Am. Dec. 400. "In its substance the rule is not arbitrary, but logical and apparently necessary to any system of law which is self-consistent; for the distinction between descent and purchase is radical and fundamental; and while a group of individuals, though they be heirs of another, may take by purchase the same as those who are not his heirs, yet they can not as heirs take otherwise than by descent; and to take by descent at all, they must take from him whose heirs they are, and not from him who conveyed the property and nominated them to succeed in its ownership."-Smith v. Collins, 90 Ga. 411, 17 S. E. 1013. "No rule of common law has undergone the exhaustive investi § 901. A Rule of Law and Property, Not of Construction. The rule in Shelley's Case is a rule of law, or of property,10 not of construction. Where the testamentary gift is in such language as to bring it within the rule, the rule applies irrespective of the intent of the testator. While the intention may confessedly have been to give to the first taker but a life estate, the rule converts such estate into a fee by treating the terms of the gift over to the heirs as a limitation of the estate.11 The rule is not intended as a means of discovering the intention of the testator; that is a matter of construction. gation, thorough discussion, and severe criticism to which the rule in Shelley's Case has been subjected; and yet it has survived 600 years of controversy in England, and has been generally accepted by the courts of this country as a part of that rich inheritance of common law upon which our jurisprudence is founded."Doyle v. Andis, 127 Iowa 36, 40, 4 Ann. Cas. 18, 69 L. R. A. 953, 102 N. W. 177. 9 Jones v. Rees, 6 Penn. (Del.) 504, 16 L. R. A. (N. S.) 734, 69 Atl. 785; Tantum v. Campbell, 83 N. J. Eq. 361, 91 Atl. 120; Stout v. Good, 245 Pa. St. 383, 91 Atl. 613; McElwain v. Whitacre, 251 Pa. St. 279, 96 Atl. 655. "The rule in Shelley's Case is a rule of positive law and not of construction where, upon the construction of a grant or devise, the rule is found to be applicable, it can not be controlled by any ex pression of a contrary intent."Martling v. Martling, 55 N. J. Eq. 771, 39 Atl. 203. 10 Hall v. Hankey, 174 Fed. 139, 98 C. C. A. 173; Daniel v. Whartenby, 17 Wall. (U. S.) 639, 21 L. Ed. 661; Vogt v. Vogt, 26 App. D. C. 46; Goodrich v. Lambert, 10 Conn. 448; Smith v. Collins, 90 Ga. 411, 17 S. E. 1013; Lord v. Comstock, 240 Ill. 492, 88 N. E. 1012; Teal v. Richardson, 160 Ind. 119, 66 N. E. 435; Cook v. Councilman, 109 Md. 622, 72 Atl. 404; Lytle v. Beveridge, 58 N. Y. 592; Crandell v. Barker, 8 N. D. 263, 78 N. W. 347; King v. Beck, 15 Ohio 559; Hess v. Hess, 67 Pa. St. 119; Duckett v. Butler, 67 S. C. 130, 45 S. E. 137; Brooks v. Evetts, 33 Tex. 732. 11 Travers v. Wallace, 93 Md. 507, 49 Atl. 415; Robeson V. Moore, 168 N. C. 388, L. R. A. 1915D, 496, 84 S. E. 351; Reeves v. Simpson, (Tex. Civ. App.) 18 S. W 68. |