the rule in Shelley's Case applies only to limitations in which the word "heirs" is used unless it can be ascertained that the testator, though using other words, meant "heirs."'65 The word "children" does not point to heritable succession, but is employed in contradistinction to the terms "issue" and "heirs of the body." The word "children" is one of personal description, and is therefore a word of purchase.66 Where the limitation is unqualifiedly to the "children," the rule in Shelley's Case does not apply. For example, where a devise is to one for and during his natural life, with remainder to his child or children in fee, the rule has no application. The general rule may be laid down to be that the word "children" in a devise is a word of purchase and not of limitation unless a different intent clearly appears in the will.68 It As to those included under a gift to children, see §§ 840, 841. As to children en ventre sa mere, see § 842. As to illegitimate children, see §§ 843-846. As to adopted children, see § 847. 65 Hanes v. Central Illinois Utilities Co., 262 Ill. 86, 104 N. E. 156; Bass v. Surls, (Tex. Civ. App.) 153 S. W. 914. 66 Forest Oil Co. v. Crawford, 77 Fed. 106, 23 C. C. A. 55; Hoover v. Strauss, 215 Pa. St. 130, 64 Atl. 333. In a devise of a life estate to A with remainder "to descend" to his children it was held that the word "descend" was not used in the sense of passing land by succession, as where an estate vests by operation of law in the heirs upon the death of the ancestor, but was used to signify that his children, if he left children surviving, should succeed immediately to the possession of the lands upon his death.-Hanes v. Central Illinois Utilities Co., 262 Ill. 86, 104 N. E. 156. 67 Hanes v. Central Illinois Utilities Co., 262 Ill. 86, 104 N. E. 156; Collins v. Williams, 98 Tenn. 525, 41 S. W. 1056. 68 Re Buckmaster, 47 L. T. N. S. 514; Biggs v. McCarty, 86 Ind. 352, 44 Am. Rep. 320; Conover v. Cade, 184 Ind. 604, 112 N. E. 7; Smith v. Smith, 119 Ky. 899, 85 S. W. 169, 1094; Reilly v. Bristow, 105 Md. 326, 66 Atl. 262; Steward V. Knight, 62 N. J. Eq. 232, 49 Atl. 535; Keim's Appeal, 125 Pa. St. 480, 17 Atl. 463; Oyster v. Oyster, 100 Pa. St. 538, 45 Am. Rep. 388; is not, however, construed as a word of purchase if no such children are in being at the date of the will or at the death of the testator.69 § 914. "Children" as a Word of Limitation. While ordinarily the word "children" is not a word of limitation because it does not point to heritable succession, yet the courts have sometimes construed it as such where it is clearly manifest that the testator intended to Bowers v. Bowers, 4 Heisk. (51 Tenn.) 293; Wills v. Foltz, 61 W. Va. 262, 12 L. R. A. (N. S.) 283, 56 S. E. 473. A bequest of all the testator's estate to his "daughter A and her children, in their exclusive right," gives to the daughter a life estate in the whole with remainder to the children.-Adams v. Adams, 20 Ky. Law Rep. 655, 47 S. W. 335. Where the testator gave property to a son and two daughters with the right of survivorship to the one last living, after which the property was "to go to be divided between the children the lawful heirs of my aforesaid children," it was held that the rule in Shelley's Case did not apply.Reilly v. Bristow, 105 Md. 326, 66 Atl. 262. The testator, after a devise to his grandson, provided that "after the death of my said grandson I give and devise the house and the lot of ground above described unto his children, to have and to hold the above described property with the appurtenances, unto his children, their heirs and assigns forever." In a later clause he referred to the devisees, "their heirs or legal representatives." It was held that the word "children" is primarily a word of purchase, and the words "heirs and assigns," and "heirs or legal representatives" did not refer to the grandson, but to his children, to indicate that they were to take in fee. Hoover v. Strauss, 215 Pa. St. 130, 64 Atl. 333. Where the whole will disposing of the property consisted in the following: "I leave to my dear wife and our sweet little children all that I possess," a joint estate in the wife and children in equal portions was created.-Fitzpatrick v. Fitzpatrick, 100 Va. 552, 93 Am. St. Rep. 976, 42 S. E. 306. 69 Carr v. Estill, 16 B. Mon. (55 Ky.) 309, 313, 63 Am. Dec. 548; Grieve v. Grieve, 36 L. J. Ch. N. S. 932; Oyster v. Knull, 137 Pa. St. 448, 21 Am. St. Rep. 890, 20 Atl. 624; Moon v. Stone's Ex'r, 19 Gratt. (Va.) 130. See §§ 952-956. See, also, Davis v. Sanders, 123 Ga. 177, 51 S. E. 298. place such a construction upon it.70 Where, for example, the bequest was "unto my sister A, for the benefit of herself and her own children, the sum of $25,000 in trust,' the word was held to be one of limitation." The ruling is the same under a devise "to A and to her children, heirs, and assigns,"72 or a devise "to them and their children forever";7 or a devise "to her and her children for When the word "children" is used as a word of limitation, it will be construed to mean descendants generally if such appears from the will to have been the intention of the testator.75 70 Steward v. Knight, 62 N. J. Eq. 232, 49 Atl. 535. In Mason v. Ammon, 117 Pa. St. 127, 11 Atl. 449, where the devise was to "said sister, and at her Ideath to her child, children, or other lineal descendants," the court says: "It is admitted that whilst 'child' or 'children' will not, per se, be construed to be a word of limitation, yet when coupled with other expressions of the testator showing that they were used as a nomen collectivum, signifying 'heirs of the body,' the rule in Shelley's Case has been applied." The court held that the words, "or other lineal descendants" indicated the nature of the estate intended to be given to the successors of the sister as one he meant they should take by descent from her. In Shapley v. Diehl, 203 Pa. St. 566, 53 Atl. 374, where the grant was to a son for life, then "to his children or heirs," it was held to vest a fee in the son, the court saying: "Suppose he had omitted 'children' and said 'heirs' only, the precise case for the rule (in Shelley's Case) would have been presented, yet the meaning would have been exactly the same, and the children would have come in as first in line of inheritance." 71 Rich v. Rogers, 14 Gray (80 Mass.) 174. 72 Leiter v. Sheppard, 85 Ill. 242. 73 Lachland's Heirs v. Downing's Ex'rs, 11 B. Mon. (50 Ky.) 32. § 915. Where the Limitation Is to "Issue" or "Issue of the Body." The language of the rule in Shelley's Case confines it to cases where the ancestor takes an estate of freehold and there is a limitation over "to his heirs in fee or in fee tail." It is an extension of the rule to apply it to a limitation to "issue," or "issue of the body," or "bodily issue" which are not ex vi termini within the rule.76 Technically the terms "issue," "bodily issue," and "issue of the body" mean the same thing. The words "issue of the body" are more flexible than the words "heirs of his body," and courts more readily interpret the former as a synonym of "children" and a mere descriptio personarum than the latter." But "issue" prima facie means "heirs of the body."'78 It is sometimes used as a word of purchase and also as a word of limitation, but should always be construed according to the intention of the testator.79 76 Daniel v. Whartenby, 17 Wall. (U. S.) 639, 21 L. Ed. 661; Timanus v. Dugan, 46 Md. 402; Ford v. McBrayer, 171 N. C. 420, 88 S. E. 736. As to those included in the term "issue," see §§ 848, 849. Where the testator gave to his two sons, a certain described piece of property to hold "during their natural lives and no longer, and to the survivor during his life and no longer, and after the death of my said sons or either of them, then to the legitimate issue of the son having such issue, whether the said son be living or deceased. On the failure of such legitimate issue of my said sons or 77 Daniel v. Whartenby, 17 Wall. (U. S.) 639, 21 L. Ed. 661, quoted in Ford v. McBrayer, 171 N. C. 420, 88 S. E. 736. 78 Peirce v. Hubbard, 152 Pa. St. 18, 25 Atl. 231. 79 Smith v. Chapman, 1 Hen. & M. (Va.) 240. § 916. Burden of Proof. Whenever in a testamentary gift a word appears which is not strictly one of limitation, if the rule in Shelley's Case is sought to be applied by analogy, the burden rests upon him who claims such word to be the equivalent of "heirs" or "heirs of his body," to demonstrate from the language of the will that it was so intended.80 For example, where the word "heirs" is not used but the word employed is "descendants,"81 or "children, "'82 the one asserting that the testator thereby intended his heirs in their capacity as such, has the burden of proving such contention. § 917. Where Rule in Shelley's Case Prevails, and Where Abolished by Statute. The rule in Shelley's Case is in full force as a rule of property in England today,88 as it is also in Canada.84 Among these United States where it is still a part of the common law and in force are Arkansas,85 Delaware, 86 District of Columbia,87 Florida,s8 Georgia,89 Illinois,90 85 Hardage v. Stroope, 58 Ark. 303, 310, 24 S. W. 490. 86 Griffith v. Derringer, 5 Harr. (Del.) 284. 87 Sims v. Georgetown College, 1 App. Cas. (D. C.) 72, 80. 88 Russ v. Russ, 9 Fla. 105. 89 Smith v. Collins, 90 Ga. 413, 15 S. E. 682. 90 Baker v. Scott, 62 Ill. 86, 93; McFall v. Kirkpatrick, 236 Ill. 281, 86 N. E. 139. |