The first question is whether or not the terms of the will bring the estate within the operation of the rule, and if so, the rule controls the intention in so far as the intention may be repugnant to the rule.12 The intention of the testator is a matter of construction and should not be confused with the rule. It may be necessary for the court to construe the will in order to determine whether the word "heirs" or a similar expression was intended to designate, as the takers of the remainder, those bearing that technical relationship to the first taker. Such determination is a matter of construction. If the word "heirs" or a like term has not been used to designate, in a legal sense, the "heirs" of the first taker to whom the estate is limited in fee or in tail after the first taker's death, the rule does not apply. But if the provisions of the will properly construed clearly show that the testator intended, by the terms used, although the word "heirs" may not have been employed, to limit the estate of the first taker to his "heirs" in their capacity as such, the rule will prevail. 18 12 Perrin v. Blake, 4 Burr. 2579, 1 W. Bl. 672, quoted in Deemer v. Kessinger, 206 Ill. 57, 69 N. E. 28; Daniel v. Whartenby, 17 Wall. (U. S.) 639, 21 L. Ed. 661; Ewing v. Barnes, 156 Ill. 61, 68, 40 N. E. 325; Warner v. Sprigg, 62 Md. 14; Trumbull v. Trumbull, 148 Mass. 200, 4 L. R. A. 117, 21 N. E. 366; Wool v. Fleetwood, 136 N. C. 460, 67 L. R. A. 444, 47 S. E. 785; Crandell v. Barker, 8 N. D. 263, 78 N. W. 347; Hastings v. Engle, 217 Pa. St. 419, 66 Atl. 761. "The rule was obviously not in tended as a means of discovering the intention of the grantor or testator. This was left to be otherwise discovered. But when the intention had been ascertained, this rule controlled the intention so far as it was repugnant to the public policy."-Chipps v. Hall, 23 W. Va. 504. 13 Martling V. Martling, 55 N. J. Eq. 771, 39 Atl. 203; In re Guthrie's Appeal, 37 Pa. St. 9; Shapley v. Diehl, 203 Pa. St. 566, 53 Atl. 374; Stout v. Good, 245 Pa. St. 383, 91 Atl. 613; Ahl v. Liggett, 246 Pa. St. 246, 92 Atl. 202. There are decisions, however, holding that the intention of the testator will control irrespective of the rule, or in other words, the rule is held not to overthrow the expressed intent of the testator.14 Some of such decisions, however, have been subsequently disapproved.1 15 § 902. Circumstances Under Which the Rule Is Applicable. In order that the rule in Shelley's Case may be applicable, several conditions must exist. The gift to the ancestor and the limitation to the heirs must be contained in the same instrument.16 The ancestor must be given a 14 Belslay v. Engel, 107 Ill. 182; Hull v. Beals, 23 Ind. 25; Millett v. Ford, 109 Ind. 159, 8 N. E. 917; Earnhart v. Earnhart, 127 Ind. 397, 22 Am. St. Rep. 652, 26 N. E. 895; Indiana Rev. Stats., (1881) § 2567; Slemmer v. Crampton, 50 Iowa 302; Wescott v. Binford, 104 Iowa 645, 654, 65 Am. St. Rep. 530, 74 N. W. 18; Harlan v. Manington, 152 Iowa 707, 133 N. W. 367; Findlay's Lessee v. Riddle, 3 Binn. (Pa.) 139, 5 Am. Dec. 355. In Millett v. Ford, 109 Ind. 159, 8 N. E. 917, where the word "heirs" was used as synonymous with "children," the first devisee took but a life estate. (This would not affect the rule, since "heirs" in a technical sense was not intended.) In Indiana the word "heirs" has been construed to mean "kinsmen" or "children" because no cne can be the heir of a living person; and a further distinction has been made in the following language: "It should be remem bered that there is a material and controlling distinction between a devise of an estate to a person named and his lawful heirs and a devise to the lawful heirs of a person named."-Conger v. Lowe, 124 Ind. 368, 9 L. R. A. 165, 24 N. E. 889. 15 Carpenter v. Van Olinder, (Van Olinda v. Carpenter) 127 Ill. 42, 11 Am. St. Rep. 92, 2 L. R. A. 455, 19 N. E. 868; Ewing v. Barnes, 156 Ill. 61, 68, 40 N. E. 325; Teal v. Richardson, 160 Ind. 119, 66 N. E. 435; Grimes v. Shirk, 169 Pa. St. 74, 87, 32 Atl. 113. 16 "About the only method by which the donor can give a life estate to another with a remainder to the heirs of the donee and feel reasonably sure that his purpose will not be judicially thwarted, is to create the life estate and the remainder by separate instruments; and this method is probably not open to one who wishes to pass the estate by will instead of by deed." freehold estate or the rule can not be applied.17 If no estate of freehold be given the ancestor or if he be dead at the time of the gift, the heirs can not take by descent since the ancestor never had in him any descendible estate. It is the same if the ancestor take only a chattel interest, for if there be a vested estate of freehold interposed between the term of the ancestor and the estate limited to his heirs, the latter can take only by way of an executory devise; and if there be such a vested estate, the contingent remainder to the heirs is supported by the intermediate estate and not by the chattel interest of the ancestor. 18 Inasmuch as the heirs must take by way of remainder, the rule applies only where an estate of freehold is given with a remainder either mediately or immediately to the Doyle v. Andis, 127 Iowa 36, 4 Weaver, J., in commenting on this feature says: "It is but little short of the ludicrous to find that this rule, to which its adherents have for ages invited attention as the product of profound wisdom and as an indispensable safeguard of property rights and promoter of wise public policy, is, when reduced to its lowest terms, a simple declaration that you shall not, by a single written instrument, do that which you may lawfully and effectually accomplish by two."-Doyle v. Andis, 127 Iowa 36, 4 Ann. Cas. 18, 69 L. R. A. 953, 102 N. W. 177. 17 Coape v. Arnold, 2 Smal. & G. 311; Starnes v. Hill, 112 N. C. 1, 22 L. R. A. 598, 16 S. E. 1011. The rule is not applicable where the estate of the ancestor is for a term of years only. Where the will provided for the lease of a piece of land for a named period with a renewal for the same period, the net income to be divided equally between the testator's two daughters during their life and at their decease to their lawful heirs, the daughters, after having passed sixty and being beyond the child-bearing period and whose nieces and nephews were their heirs presumptive, had an estate in the land for a term of years only and did not take a fee. -Tyndale v. McLaughlin, 84 N. J. Eq. 652, 95 Atl. 117. 184 Kent's Com. 221; Matter of Stumpenhousen, 108 Iowa 555, 79 N. W. 376; Harlan v. Manington, 152 Iowa 707, 133 N. W. 367. heirs.19 And it is also necessary that an estate of inheritance be given to the heirs, for if no inheritable estate be given them, they can not take by descent as heirs.2 20 § 903. Limitation Must be to Heirs of First Taker, in Their Capacity as Such Heirs. The rule can apply only where the remainder over is to the heirs or heirs of the body of the first taker, that is the one taking the freehold estate. Thus a life estate to A with remainder to A's heirs is within the rule, for the life estate to A is capable of being enlarged by the subsequent words being construed as words of limitation.21 An estate to A for life with a remainder to the heirs of B is not within the rule, and B's heirs would take as purchasers. If the limitation is to the heirs of the testator, such heirs would take the reversionary interest upon the termination of the life estate rather than the remainder.22 A limitation to the heirs or heirs of the body of the person taking the freehold estate must be to them in their capacity as heirs; the limitation must not be to the heirs as a mere descriptio personarum, comprehending sons, children, or the like. The heirs must be named to take as a class or denomination of persons, not as individuals.23 19 Berry v. Williamson, 11 B. Mon. (50 Ky.) 245. 20 Van Grutten v. Foxwell, 77 L. T. N. S. 170, (1897) A. C. 658. 21 Nelson v. Davis, 35 Ind. 474; Clagett v. Worthington, 3 Gill (Md.) 83; Hennessy v. Patterson, 85 N. Y. 91. 22 Robinson v. Blankenship, 116 Tenn. 394, 92 S. W. 854. 23 Van Grutten V. Foxwell, (1897) A. C. 658; De Vaughn v. Hutchinson, 165 U. S. 566, 41 L. Ed. 827, 17 Sup. Ct. 461; Belslay v. Engel, 107 Ill. 182; Granger v. Granger, 147 Ind. 95, 36 L. R. A. 186, 44 N. E. 189, 46 N. E. 80; Handy v. McKim, 64 Md. 560, 4 Atl. 125; Wool v. Fleetwood, 136 N. C. 460, 67 L. R. A. 444, 48 S. E. 785; Clemens v. Heckscher, 185 Pa. St. 476, 40 Atl. 80; Kesterson v. Bailey, 35 Tex. Civ. App. 235, 80 S. W. 97. If the intention of the testator be that the remaindermen shall 8904. Effect of a Limitation to the Heirs of the Heirs. If the estate is not only limited to the heirs of the life tenant, but the remainder is also limited to the heirs of the remaindermen designated as heirs, as a gift "to A for life and to his heirs and their heirs," the courts are divided regarding the applicability of the rule. The doctrine that the rule applies finds support under some authorities, while the majority of the decisions favor holding the rule inapplicable, the reason being that by the use of such words a purpose is evinced of creating in the heirs of the first taker an estate in fee simple.25 § 905. The Rule as Applied to Equitable Estates. The rule in Shelley's Case applies alike to equitable and to legal estates.26 Both estates, however, that to the first taker and that limited to the heirs, must be of the same character, either both legal or both equitable.27 If the take as heirs of the grantee or devisee of the particular freehold instead of themselves becoming the root of a new succession, the rule is applicable even though it may defeat the manifest intention of the testator that the first taker should have but a life estate. In re Guthrie's Appeal, 37 Pa. St. 9. 24 Jarman, Wills, (6th Am. Ed.) Vol. 2, *1205; Andrews v. Lowthrop, 17 R. I. 60, 20 Atl. 97. 25 De Vaughn v. Hutchinson, 165 U. S. 566, 41 L. Ed. 827, 17 Sup. Ct. 461; Smith v. Collins, 90 Ga. 411, 17 S. E. 1013; Brown v. Brown, 125 Iowa 218, 67 L. R. A. 629, 101 N. W. 81; Shreve v. Shreve, 43 Md. 382; Myers v. An derson, 1 Strob. Eq. (S. C.) 344, 47 Am. Dec. 537. 26 Philips v. Brydges, 3 Ves. 121, 127; Croxall v. Shererd, 5 Wall. (U. S.) 268, 18 L. Ed. 572; Mathieson v. Craven, 228 Fed: 345; Cannon v. Barry, 59 Miss. 289; Cushing v. Blake, 30 N. J. Eq. 689; Brown v. Wadsworth, 32 App. Div. 423, 53 N. Y. Supp. 215; Austin V. Payne, 8 Rich. Eq. (S. C.) 9; Reeves v. Simpson, (Tex. Civ. App.) 182 S. W. 68. 27 Van Grutten V. Foxwell, (1897) A. C. 658; Mathieson v. Craven, 228 Fed. 345; Edmondson v. Dyson, 2 Ga. 307; Baker v. Scott, 62 Ill. 86; Glover v. Condell, 163 Ill. 566, 588, 35 L. R. A. 360, 45 N. E. 173; Doyle v. Andis, |