prior estate is an equitable or trust estate the subsequent limitation is a legal estate; the two do not unite an estate of inheritance in the ancestor.28 Nor does the rule apply where the first estate is the subject of an active trust and there is a limitation over of the estate discharged of the trust.29

§ 906. The Same Subject: Estates in Trust.

The rule in Shelley's Case is applicable to trust estates where both the freehold estate and the remainder are of the same quality.30 But it is limited to those cases where the trust is executed, not where it is executory.31 The rule is not applicable to executory limitations because if the limitations to the ancestor and to the heirs are both executory, they would not be parts of the same estate, but would be distinct and independent dispositions of the subject.32

127 Iowa 36, 4 Ann. Cas. 18, 69 L. R. A. 953, 102 N. W. 177; Harlan v. Manington, 152 Iowa 707, 133 N. W. 367; Mercer v. Hopkins, 88 Md. 292, 309, 41 Atl. 156; Loring V. Eliot, 16 Gray (82 Mass.) 568; Cannon v. Barry, 59 Miss. 289; Brown v. Wadsworth, 168 N. Y. 225, 235, 61 N. E. 250; Reeves v. Simpson, (Tex. Civ. App.) 182 S. W. 68.

The application of the rule does not depend upon the quantity of the estate intended to be given but upon the nature or quality of the estate to be given to the heirs.-Deemer v. Kessinger, 206 Ill. 57, 69 N. E. 28.

28 Glover v. Condell, 163 Ill. 566, 35 L. R. A. 360, 45 N. E. 173; Ap

peal of Reading Trust Co., 133 Pa. St. 342, 19 Atl. 552.

29 Mathieson V. Craven, 228 Fed. 345.

30 Croxall v. Shererd, 5 Wall. (U. S.) 268, 18 L. Ed. 572; Baker v. Scott, 62 Ill. 86; Williams v. Williams, 11 Lea (79 Tenn.) 652. 31 Edmondson v. Dyson, 2 Ga. 307; Hanna v. Hawes, 45 Iowa 437; Griffith v. Plummer, 32 Md. 74; Cushing v. Blake, 30 N. J. Eq. 689; In re Gerhard's Estate, 160 Pa. St. 253, 28 Atl. 684; Cowing v. Dodge, 19 R. I. 605, 35 Atl. 309. 32 Chipps v. Hall, 23 W. Va. 504. Where an estate is devised to A for life and then to the heirs of his body, an executory devise of the estate to other parties, in the

§ 907. Where the Remainder Is Vested or Contingent.

A devise of property to one person and after his death to his heirs or the heirs of his body brings the case squarely within the rule in Shelley's Case and vests in the first taker an estate in fee even though there is a limitation over in the event of his dying without heirs or heirs. of his body.33 The fact that the remainder may be affected by some contingency does not prevent the operation of the rule where the remainder vests.34 If the remainder to the heirs is not vested, but is purely contingent, the rule does not apply.35

§ 908. The Rule as Applicable to Gifts of Personalty.

The courts are not in accord as to whether the rule in Shelley's Case applies to personal property. In the same jurisdictions there are sometimes conflicting and irreconcilable decisions. Strictly speaking, the rule has refer

event of the death of A without such issue living at the time of his death is void.-Travers v. Wallace, 93 Md. 507, 49 Atl. 415.

33 Broadhurst v. Morris, 2 B. & Ad. 1; Marshall v. Grime, 28 Beav. 375; Williams v. Williams, 51 L. T. N. S. 779; Griffith v. Derringer, 5 Harr. (Del.) 284; Ewing v. Barnes, 156 Ill. 61, 40 N. E. 325; Bonner v. Bonner, 28 Ind. App. 147, 62 N. E. 497; Teal v. Richardson, 160 Ind. 119, 66 N. E. 435; Bassett v. Hawks, 118 Pa. St. 94, 11 Atl. 802; McCann v. Barclay, 204 Pa. St. 214, 53 Atl. 767.

34 Crockett V. Robinson, 46 N. H. 454; Tyson v. Sinclair, 138 N. C. 23, 3 Ann. Cas. 397, 50 II Com. on Wills-30

S. E. 450; McCann v. Barclay, 204 Pa. St. 214, 53 Atl. 767; McNeal v. Sherwood, 24 R. I. 314, 53 Atl. 43.

Under a devise to the testator's daughter "to have and to hold during her natural life, with power to my said daughter to sell and convey the same in fee simple in case it becomes necessary to do so, and the remainder after her death to the heirs of her body in fee simple," there is vested in the daughter an estate in fee simple. Teal v. Richardson, 160 Ind. 119, 66 N. E. 435.

35 Harlan V. Manington, 152 Iowa, 707, 133 N. W. 367; Tantum v. Campbell, 83 N. J. Eq. 361, 91 Atl. 120.

ence to real estate alone, yet it is often applied to grants of personalty by way of analogy for the purpose of construction, and when so applied yields more readily to the apparent intention of the testator than it does in grants of realty.36 It is a general rule that where there is a gift of personalty to A and his heirs, A will take the absolute interest, although in the strictest sense the term "heirs" or "heirs of his body" does not apply to personal property.37 The application of the rule to chattels is distinctly admitted in some cases.$8

Some decisions, while saying that the rule in Shelley's Case does not, by its terms, apply to personalty, have adopted a rule which practically amounts to the same thing, and that is that if personalty be given in language which if applied to realty would create an estate tail, it.

36 Glover v. Condell, 163 Ill. 566, 35 L. R. A. 360, 45 N. E. 173; Horne v. Lyeth, 4 Harr. & J. (Md.) 431; Sands v. Old Colony Trust Co., 195 Mass. 575, 12 Ann. Cas. 837, 81 N. E. 300; Powell v. Brandon, 24 Miss. 343; Evans v. Weatherhead, 24 R. I. 502, 53 Atl.

866.

In Evans v. Weatherhead, 24 R. I. 502, 53 Atl. 866, it was held that the rule in Shelley's Case applies by analogy to personalty, unless a contrary intent appears.

37 Elton v. Eason, 19 Ves. Jun. 73, 78; Mason v. Pate's Ex'r, 34 Ala. 379; Glover v. Condell, 163 Ill. 566, 587, 35 L. R. A. 360, 45 N. E. 173; Hughes v. Nicklas, 70 Md. 484, 14 Am. St. Rep. 377, 17 Atl. 398; Cockins & Harper's Appeal, 111 Pa. St. 26, 2 Atl. 363.

38 Mason v. Pate's Ex'r, 34 Ala.

379; Edmondson v. Dyson, 2 Ga. 307; Horne v. Lyeth, 4 Harr. & J. (Md.) 431; Seeger v. Leakin, 76 Md. 500, 25 Atl. 862; Kiser v. Kiser, 55 N. C. 28; Appeal of Cockins & Harper, 111 Pa. St. 26, 2 Atl. 363; Scott's Creditors v. Scott, 1 Bay (S. C.) 504, 1 Am. Dec. 625; Polk v. Faris, 9 Yerg. (17 Tenn.) 209, 30 Am. Dec. 400.

Sanction seems to be given to the proposition by strong implication from the language of Chancellor Kent where, after discussing the effect of the rule as to real estate, he says: "If the rule be applied to personal property, it makes the tenant for life absolute owner instead of being a mere usufructuary without any power over the property beyond the enjoyment of it for life."-4 Kent, Com. * 226.

vests absolutely in him who, if the property were realty, would be the immediate donee in tail.39 In some jurisdictions, however, the courts have refused to extend the rule to personal property, either directly or by analogy.40

In England there is a diversity of opinion as to whether the rule applies to personalty, the older cases applying the rule in such cases, while the later cases seem to deny it.42 In Illinois it had been held that the rule applies by analogy to gifts of personalty, but a later case has overruled these decisions, and the rule is now held not to apply. In Indiana it has been held that the rule applies to real estate only and not to personalty;45 however, in a

later case the rule was held to be applicable to a bequest of money.46

§ 909. Effect of Words of Limitation and of Purchase.

The word "limitation" has two well-known and distinct meanings. In its primary sense it signifies a marking out of the bounds or limits of the estate created, and in the other sense it means simply the creation of an estate. The word "heirs" as a word of limitation indicates the character of the estate transferred.48 It may well be said that words of limitation are simply words of description. They measure the duration and define the extent of the estate taken by the ancestor.49

Words of purchase are such as give the estate originally to the heirs, and not through the medium of, or by descent from, the ancestor. Words of limitation are such as do not give the estate imported by them originally to the heirs described, but only extend the ancestor's estate to an estate of inheritance descendible to the heirs mentioned.50

§ 910. "Heirs" as a Word of Limitation.

The word "heirs" is primarily a word of limitation and will always be so construed unless the intent of the testator is so plain as to preclude a misunderstanding that he intended to use it in other than its ordinary legal sense.5

51

50 Ball v. Payne, 6 Rand. (Va.)

Words of purchase point out and designate the objects and limit the scope of the conveyance or gift of the remainder.-Doyle v. Andis, 127 Iowa 36, 4 Ann. Cas. 18, 69 L. R. A. 953, 102 N. W. 177.

51 Fischer v. Stoepler, 152 Ky.