Shelley's Case

RULE IN. "When the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, 'the heirs' are words of limitation of the estate, and not words of purchase." 1 Coke, 104. This rule has been the subject of much comment. It is given by Mr. Preston (1 Prest. Est. pp. 263-419) as follows: "When a person takes an estate of freehold, legally or equitably,, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." See 15 B. Mon. (Ky.) 282; Harg. Tr. 489, 551; 2 Kent, Comm. 214. If the limitation be to "heirs of the body," he takes an estate tail; if to "heirs" generally, a fee simple. 1 Day (Conn.) 299; 2 Yeates (Pa.) 410. It does not apply where the ancestor's estate is equitable, and that of the heirs legal. 1 Curt. C. C. (U. S.) 419.

RULE IN. “When the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase.” 1 Co. 104. This rule has been the subject of much comment. Its origin can be deduced from feudal tenure; 4 Kent 217. It is given by Preston, Estates, pp. 263, 419, as follows: When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate. See Stephenson v Hagan, 15 B. Monr. (Ky.) 282; Hargr. Law Tracts 489, 551; 2 Kent 214. The rule in Shelley’s case is not a rule of construction, but an absolute rule of property; Van Grutten v. Foxwell, [1897] A. C. 658 (Lord Mac Naghten’s historical discussion). If the limitation be to one and the heirs of the body, he takes an estate tail; if to one and his heirs generally, a fee-simple; Bishop v. Selleck, 1 Day (Conn.) 299; Baughman v. Baugman, 2 Yeates (Pa.) 410. It does not apply where the ancestor’s estate is equitable and that of the heirs legal; Ward v. Amory, 1 Curt. C. C. 419, Fed. Cas. No. 17,146. ty; Jones v. Rees, 6 Pennewill (Del.) 504, 69 Atl. 785, 16 L. R. A. (N. S.) 734, see, as to this, Bennett v. Bennett, 217 111. 434, 75 N. E. 339, 4 L. R. A. (N. S.) 470. The rule was adopted as a part of the common law of this country, and in many of the states still prevails. It has been abolished in most of them. The subject has been exhaustively treated in Pennsylvania, and the numerous decisions will be found analyzed and arranged in tabular form in an essay by J. P. Gross. (Harrisburg, 1877.) The rule has been held applicable to instruments in which the words, “heir” or “heirs;” Elliott v. Pearsoll, 8 W. & S. (Pa.) 3S; “issue;" Walker v. Milligan, 45 Pa. 179; “child” or “children;” Stewart v. Kenower, 7 W. & S. (Pa.) 288; “son” or “daughter;” Appeal of Yarnall, 70 Pa. 335; “next of kin;” “offspring;” Allen v. Markle, 36 Pa. 117; “descendants” and similar expressions are used in the technical sense of the word heirs. Chief Justice Gibson states the operation of the rule as follows: “It operates only on the intention (of the devisor) when it has been ascertained, not on the meaning of the words used to express it. The ascertainment is left to the ordinary rules of construction peculiar to wills.... It gives the ancestor an estate for life, in the first instance, and, by force of the devise to his heirs, general or special, the inheritance also, by conferring the remainder on him, as the stock from which alone they can inherit;” Hileman v. Bouslaugh, 13 Pa. 344, 354, 53 Am. Dec. 474. Although a fee is given in the first part of a will, it may be restrained by subsequent words, so as to convert it into a life estate; Appeal of Urich, 86 Pa. 386, 27 Am. Rep. 707. See Hayes on Est Tail *53; Polk v. Faris, 9 Yerg. (Tenn.) 209, 30 Am. Dec. 400; 77 L. J. Rep. (II. of L.) 170. See Smith v. Proctor, 139 N. C. 314, 51 S. E. 889, 2 L. R. A. (N. S.) 172. When applicable it is not affected by the testator’s intention; 28 Atl. Rep. (N. J.) 587. It is equally applicable to conveyances by deed and limitations by will; 4 Kent *217. If applied to real estate, it enlarges the estate for life into an inheritance, and makes the tenant for life a tenant in fee; it makes the tenant for life of personalty an absolute owner; 4 Kent 227. A deed to one for life, and at his death to his surviving heirs, vests a fee in the first taker, the word “surviving” not being sufficient to prevent an application of the rule, at least not where the warranty runs to him and to his assigns forever; Price v. Griffin, 150 N. C. 523, 64 S. E. 372, 29 L. R. A. (N. S.) 935; so where the remainder is to “his then surviving heirs” and “heirs then living” or “heirs living at the time of their deaths”; Hiester v. Yerger, 166 Pa. 445, 31 Atl. 122; it testator used some other word to mean hfceirs. The word “children” is not ordinarily equY va ‘ lent to heirs so as to bring a devise wiu£ in the rule; Hanes v. Utilities Co., 262 111. 8^ 6 > 104 N. E. 156. Tt

rule in. limitation of an estate dren, or heirs in fee or garded as words of fee to the first taker. reported by Coke.

The limitation of a remainder, in fee-simple or fee-tail, to a person who already has an estate of freehold, is governed by a rule of law known as the rule in Shelley's Case — a case decided in 1581 by Lord Francis Coke, and in which the rule was first authoritatively declared, and clearly stated. The rule, as there expressed, is: " When the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, ' the heirs ' are words of limitation of the estate, and not words of purchase." s That is to say, when a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to "the heirs" entitles the ancestor to the whole estate.^ The word " heirs," or " heirs of the body," creates a remainder in fee, or in tail, which the law, to prevent an abeyance, vests in the ancestor, who is " tenant for life," and by the conjunction of the two estates he becomes " tenant in fee " or " in tail; " and, whether he takes the freehold by express limitation, by resulting use, or by implication of law, the subsequent remain^ ■ [Stone V. Cooper, 2 Denio, 800 (1845), Walworth, Ch. 2 Rex V. Birket, 19 E. C. L. 482 (1830). ' Shelley's Case, 1 Coke, *104. See Webster v. Cooder to his heirs unites with, and is executed on, his estate for] if e.i The words " issue of his body " are more flexible than " heirs of his bod}'." The courts more readily interpret the former £vs synonymous with " children " and a description of persons, than the latter.'' The rule is older than Shelley's Case. Some trace its orighi to the feudal system, which favored taking by "descent," for thereby the incidents of wardship, marriage, relief, etc., attached, while in "purchase" the taker was relieved from those burdens. Others attribute it to the aversion of the common law to fees in abeyance, a desire to promote the transferability of realty and make it liable for the specialty debts of the ancestor. 2 The rule, instead of regarding a part of the entire estate as being in the ancestor, and a part in his heirs, considers the entire estate as in him alone; that the intent in creating it was to have it go in a certain line of succession, and, if the first taker died intestate, his heirs should take by descent from him, and not as purchasers under the original limitation. By statutes in some States (as see below), such a limitation is declared to be what it purports to be in terms, — a contingent remainder in the heirs.^ Applies alike to legal and equitable estates.* Applies, also, to trust estates where both the life estate and the remainder are of the- same, character. The legal effect of the union of the two estates does not occur where the life estate is of an equitable character and the remainder is legal, or vice versa. Both estates must be of the same character, whether created by deed or devise.^ The rule is that where the ancestor might have taken and been seized, the heir shall inherit.' The rule operates only on the intention (of the devisor) when it has been ascertained, not on the meaning of the words used to express it... It gives the ancestor an estate for life in the first instance, and, by force of the devise to his heirs, general or special, the in^ieritance also, by conferring the remainder on him, as the stock from which alone they can inherit.' The rule, which was adopted as part of the common law of this country, is said to have been abolished, in whole or in part,, in Alabama. Connecticut, Illinois, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Hampshire (as to devises). New Jersey (devises). New York, Ohio (devises), Rhode Island (devises), Tennessee, Virginia, and Wisconsin. ^ See Heir; Issue, 5; Purchase, Words of. 1 4 Kent, 215. 2 Daniel v. Whartenby, 17 Wall. 642-44 (1873), cases, Swayne, J. 8 2 Washb. E. P. 268. * Croxall V. Shererd, 5 Wall. S81 (1866), cases. 6 Green v. Green, 23 Wall. 439-92 (1874), cases, Hunt, J. e Wallach v. Van Riswick, 92 U. S. 213 (1875): Thomby v. Fleetwood, 1 Stra. 318 (1720). 'Hileman v. Bouslaugh, 13 Pa. Z'A (1850), Gibson, 0. X; Guthrie's Appeal, 37 id. 1, 13-22 (1860), cases, Strong, J.; Millett v. Ford, 109 111. 162-63 (1886), cases;

A case in which is stated the rule that you cannot limit an estate to a man for life, with a remainder to his children, or heirs in fee or tail. The latter words will be words of limitation, mii purchase, and the man will take a fee. 1 Coke, 104. Shifting use. v. Use.