profession undertakes to draw a deed or will giving the first taker an estate for life with remainder to his issue, heirs, or children (a perfectly legal method of conveying or transmitting title, if one is fortunate enough to select the right form of words, he should "stop, look, and ponder, for the beaten path is treacherous." After reviewing the cases, he comes to the very just con in the degree of obscurity in which they are clouded. The centuries of its history have been insufficient for its advocates to find common ground on which to stand in its practical application, and the lawyer who sets out to discover the "weight of authority" upon many of its phases soon finds himself lost in an impenetrable forest of varying precedents and discordant opinions. A few years since a young lawyer, seek-clusion that, even after the lawyer has ing “more light” upon the subject, addressed given to the preparation of such instrument a request to the American Law Review, then the best thought of which he is capable, edited by Seymour D. Thompson and Leon his confidence in its being construed accordard A. Jones, both eminent law writers, asking to its intent must rest solely on the ing for "a good, plain, common sense, easy-dubious hope that the court will follow one to-be-understood definition of the rule" in line of its decisions rather than the other. Shelley's Case, and received answer as fol- This condition is typical of the state of the lows: "Not having the capacity to under-case law of every jurisdiction where the stand the rule in Shelley's Case, or to ac- rule has been applied, and it fully justifies quite an understanding of it by any degree the same lawyer's summing up: "A rule of of diligence within the limits of a lifetime, law may be gray with age, and therefore venwe find ourselves unable to comply with the │erable; but it may also be gray with mildew.” modest request of our esteemed correspond- Mr. Fearne, in his preface to his great work ent." [27 Am. L. Rev. 622.] Lord Mac- on Contingent Remainders, says that "one naghten says, in Van Grutten v. Foxwell, of the greatest judges who ever lived tells [1897] A. C. 668, that learned writers on us that such is the number and character of the subject are not agreed as to the mode the decisions on the rule in Shelley's Case in which the rule operates. Sir Edward and its kindred topics that the mind is Sugden despairingly declares that "no man overwhelmed by their multitude and the subcan reconcile the decisions." Montgomery tility of the distinctions between them." v. Montgomery, 3 Jones & L. 47. In Perrin Judge Lyman P. Trumbull, of national fame v. Blake, Mr. Justice Blackstone spoke of as a lawyer and statesman, says the rule in the rule as being flexible, and left some Shelley's Case "has contributed more than room for construction in accord with the all other causes combined to defeat the manifest intent of the testator. After his wishes and purposes of persons who have death Lord Macnaghten (Van Grutten v. ttemped to dispose of their estates by will," Foxwell) and Lord Thurlow (3 Jur. Ex. and characterizes it as "a rule coming down 363) were at much pains to explain that from the Dark Ages and promulgated Blackstone did not really mean what he by some judge in the case of one Shelley, said, and that the rule is as inflexible and declaring that the word 'heirs' in a will or unyielding as the law of gravitation. 9 deed was, in certain cases, a word of limitaWash. L. Rep. 258, says that from the date tion, and not of purchase, whatever that of the ingraftment of the rule upon the means. Where and for what purpose this common law "it has been the source of per- rule was promulgated nobody exactly knows, plexity to the courts, and of endless annoy- and its meaning nobody except one learned ance to the bar, as well as absolute wrong in blackletter law understands, and it is to the testator and heirs, has perverted, doubtful if he does. To the common mind changed, and abrogated the intention of the rule is nonsense.” donors, and thereby proved a Pandora's box of legal troubles and the destruction of the peace of families and the consumer of their estates." In Pennsylvania the rule has been adhered to from the early history of the state, and there, if anywhere, we should look for the law to be settled. An experienced lawyer of that state, writing in 36 Am. L. Reg. N. S. 239, tabulates not less than 100 cases involving the rule, decided by the supreme court of Pennsylvania, in which the same words "heirs," "heirs of the body." "issue," "children," and other similar forms of expression have been construed with such variant and contradictory results that he justly declares that before a member of the 27 Am. Law Rev. 321. Let us note some of the intricacies in which the subject has become involved. While, according to the letter of the rule, a gift to A, with remainder to his heirs, will vest A with the entire estate, and give the heirs nothing, and yet it is held that, if the word "heirs" is found to have been used as the equivalent or synonym of "children," the donor's intent will prevail, and A will take a life estate only. Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 82; Criswell's Appeal, 41 Pa. 288. So, too, it has often been held that a remainder over to the "child," or "children," or "issue," of the life tenant, will not enlarge the life tenancy into a fee. Chambers v. Payne, 59 N. C. (6 Jones, Eq.) 276. But let us beware. This avenue of escape is also beset with thorns. If, upon reading the instrument, the court thinks that you used the word "child," "children,” or “issue” as the equivalent or synonym of "heirs," then the rule steps in to destroy the life estate you at tempted to create, and gives the entire title to a person you did not intend should have it. 2 Flintoff, Real Prop. 128; Robinson v. Robinson, 1 Burr. 38; Doe ex dem. Jones v. Davies, 4 Barn. & Ad. 43; Lees v. Mosley, 1 Younge & C. Exch. 589; Roddy v. Fitzgerald, 6 H. L. Cas. 823; Simpers v. Simpers, 15 Md. 160. So it has been held that if to the limitation to "heirs" there be added the words "share and share alike," or other similar expressions, the rule may be avoided. Mills v. Thore, 95 N. C. 362; 2 Minor, Inst. 404; Shreve v. Shreve, 43 Md. 382; Taylor v. Cleary, 29 Gratt. 453; Burges v. Thompson, 13 R. I. 712. Exactly the opposite conclusion has been reached by many other authorities. DeVaughn v. Hutchinson, 165 U. S. 566, 41 L. ed. 827, 17 Sup. Ct. Rep. 461; Doe ex dem. Cock v. Cooper, 1 East, 229; Jesson v. Doe, 2 Bligh, 1; Grimes v. Shirk, 169 Pa. 83, 32 Atl. 113. A devise to husband and wife for life, with remainder to their heirs, falls within the rule. McFeely v. Moore, 5 Ohio, 465, 24 Am. Dec. 314; Auman v. Auman, 21 Pa. 343. A devise to a husband for life, with remainder to his heirs by his present wife, falls without rule. Den ex dem. Creswick v. Hobson, 2 W. Bl. 695; Vernon v. Wright, 7 H. L. Cas. 35. Indeed, without threading this maze any further, and we have here scarcely entered its border, we may say that about the only method by which the donor can give a life estate to another, with a remainder to the heirs of the donce, and feel reasonably sure that his purpose will not be judically 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. 1 Fearne, Contingent Remainders, 71; 1 Preston, Estates,309; Moore v. Parker, 1 Ld. Raym. 37; Coape v. Arnold, 31 Eng. L. & Eq. 133; 2 Washb. Real Prop. 6th ed. § 1605. 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 declara tion that you shall not by a single written instrument do that which you may lawfully and effectually accomplish by two. Every one of the five distinctions by which the rule is surrounded-and I have mentioned but a mere fraction of them-is an open door to untold litigation. There is not another doctrine connected with the law of real estate which has been productive of so much strife, not another which the courts have involved in such obscurity and uncertainty, and not another of which it can be so truly said that its application is invariably a triumph of injustice. 7. The final argument of every apologist for that rule is that it is intended to prevent the tying up of estates, and is therefore in accord with the general policy of our laws. A little reflection will reveal the fallacy of the argument. It is not the policy of our laws to restrict, invalidate, or discourage the creation of life estates. On the contrary, we have by express statute provided. not only that the property owner may suspend the power of sale for the lifetime of a person in being, but for twenty-one years thereafter. Neither has it ever been the policy of the common law to discourage or destroy life estates for the purpose of "removing clogs" upon the alienability of lands. During all the years since the rule in Shelley's Case came into being, the right to create life estates in almost every conceivable method (save only the one form at which that rule is aimed) has been recognized, upheld, and enforced by the courts with unvarying regularity. Thus it happens that, while forbidding the donor to give a life estate to A. with a remainder to A's heirs, he has been at perfect liberty to give a life estate to A. with remainder to the heirs of A's wife, or to the heirs of A's mother-in-law, or to the heirs of an entire stranger. The same common law permitted the piling of one life estate upon another in the most puzzling confusion. It created life estates for the benefit of the surviving wife, and husband. and for the tenant in tail after the possibility of issue has ceased. It construed every deed which omitted the magic word "heirs" as conveying a mere life estate. It upheld the entailment of estates and the law of primogeniture, and all the other elaborate and multifarious devices by which the alienability of lands was held in check and the estates of great families preserved, even at the expense of their creditors. In view of this history, the faith which can discover in the rule in Shelley's Case a benevolent design to facilitate transfers of title comes clearly within St. Paul's definition: "The substance of things hoped for; the evidence of things not seen." Even in England, with all its conservative adherence to the traditions of the law, the lawyers are ceasing to deceive themselves by this sort of sophistry. In a recent [1871] paper read before the Juridical Society of London, Sir George Bowyer says: "The celebrated rule in Shelley's but have yet to discover that none but a veteran lawyer can write that word in a deed or will without danger of defeating the intention which to the ordinary mind has been expressed with the utmost clearness. For a well-to-do person to desire to give a life estate in land to a child, with a remainder over to the offspring of such child, is a matter of everyday occurrence in almost every neighborhood. He has both the legal and moral right to thus fence against une weakness or misfortune of the child, and at the same time preserve the inheritance for the grandchildren. The statute which gives voice to the public policy of the state expressly permits him to suspend the absolute power of controlling and conveying the property for the period of a life in being and twenty-one years thereafter. Code, § 2901. His object is a laudable one, and, if carried into effect, tends to the public benefit, in Case, which has caused so much discussion, is based on feudal reasons which are now obsolete." 3 Juridical Society Papers, 543. So, also, in most states in which the rule still prevails, the courts no longer assert such defense of the rule, but candidly admit it has no foundation in the present order of things. As an instance, the Indiana court says there "was not much reason for its [the rule] at the time of its adoption, and none at all under the existing system of tenures and conveyances." Ridgeway v. Lanphear, 39 Ind. 253. If the creation of life estates be inimical to the welfare or prosperity of the people, it is within the power of the legislature to regulate or prohibit them. It has not done so, and the court is not constituted the guardian of the people, with power to enact rules of property which the law-making power does not see fit to adopt. On the contrary, the creation of a fee, the enjoyment of which is postponed to the ter-that it insures the objects of his bounty mination of a life estate, being within the conceded power of the landowner, the court should feel in duty and in conscience bound to protect its exercise, and not go out of its way to recall a disused and discredited principle to defeat it. 8. It is the just and appropriate tendency of the laws of this country to promote simplicity of contract and the easy creation and transfer of titles to property, and to ignore the merely technical, wherever it is necessary to attain the ends of substantial justice. In England conveyancing is, or has been, largely the work of skilled men constituting a learned profession, and under such circumstances it is perhaps a fair presumption that technical words are intended to. have a technical effect. In this country, and especially in the western states, the great majority of deeds and wills are drawn or executed by others than lawyers or men having expert knowledge of conveyancing. Justices of the peace, notaries, bank clerks, and sometimes clergymen and physicians, prepare these instruments for their patrons and neighbors. The inherent ineradicable vice by which the rule in Shelley's Case is differentiated from all our hitherto accepted rules of law is that it gives to words a meaning and effect diametrically opposed to their universally accepted meaning among the people, including people of education and experience who use and understand the English language, and thus creates a snare by which the average person, learned and unlearned, finds it impossible to express his intent, no matter how lucidly it be stated, with any certainty that it will be respected by the courts. The average grantor and most of the scriveners never heard of Shelley's Case. They have all heard the word "heirs," and know what it means in ordinary parlance, against becoming public charges. Now, let In my opinion the judgment of the district court should be reversed. Sherwin, Ch. J.: I concur in the dissenting opinion of Mr. Justice Weaver. Petition for rehearing overruled. WISCONSIN LUMBER COMPANY V. bounty, the property might have been saved; | which justifies the adoption of an admittedbut you failed to understand that it is some-ly vicious rule by showing that we are altimes a legal mistake to clearly express a ready burdened with others equally bad. legal intention. Of course, these 'children' will be 'heirs' of your son if they survive him, and you supposed the terms to be convertible, but nemo est hæres viventis. Having used that fatal word, the fact that every person of common sense and intelligence understands that you did not mean to give this land to your son absolutely, the fact that you had the unquestioned legal right to give him a life estate only, and the fact that you have expressed that intention with all the clearness and exactness of which our mother tongue is capable, all these things GREENE count as nothing, and the inheritance you designed for your helpless grandchildren must go to swell the list of offerings upon the altar of Shelley's Case." If he is so constituted that the hall-mark of the Dark Ages is a sufficient passport to his confidence, he will find food for comfort in learning that he has simply come in collision with "a Gothic column found among the remains of feudality," and in any event he will have cause to congratulate himself upon the narrow escape from the grave responsibility of "producing an amphibious species of inheritance." & TELEPHONE WESTERN CITIZENS' NATIONAL BANK บ. SAME, Appt. SECURITY BANK v. SAME, Appt. (1.2.7.Iowa 350) 1. A judgment will not be reversed because the sufficiency of an answer was tested by what was called a motion to strike, instead of by demurrer, although the practice is improper, where the motion has been treated by the parties as in effect a demurrer. The disposition which this man sought to make of his property was natural, commendable, and lawful. Why should the court make it unnecessarily difficult, and construct or adopt artificial and oppressive rules to thwart the purpose of the donor? If the rule in Shelley's Case had never exist. 2. The right to move to strike para ed, and it was now proposed for the first time, every court and lawyer in the United States would respond with a prompt and emphatic protest against a plan so inconsistent with the spirit of our civilization and so abhorrent to the principles of reason and justice. As this state has never been subject to its influence, we should be no less prompt and earnest in denying it a place in our legal system. The suggestion made by the majority that few instances are likely to arise requiring this court to apply the rule adds nothing to the argument. Few de. mands have hitherto been made for the enforcement of the rule in Shelley's Case, simply because the great body of the profession has taken this court at its word that such rule is not recognized as the law of Iowa. Now that we have announced otherwise, it requires no prophet's vision to foresee the rapid increase in such litigation. Of the further suggestion that there are other rules and principles of real-estate law coming from feudal times which are admittedly in force, though having no apparent justification in modern conditions, I have only to say that, conceding this to be true, I am still unable to admit the soundness of the logic graphs of answer is not waived by filing demurrers, where, after the demurrers are filed, the petition is amended, and the answer is then amended to meet the new matter in the petition. 3. A corporation cannot accept stock subscriptions secured by its officers, and repudiate the promise to take back the stock under certain circumstances. showing of any prejudice to the other stock | 86 Iowa, 490, 53 N. W. 327; Gjerstadengen holders. v. Hartzell, 8 N. D. 424, 79 N. W. 872; Hurd v. Ladner, 110 Iowa, 263, 81 N. W. 7. That a written tender is not kept good as required by statute will not defeat a judgment directing the repurchase 470; Childs v. Griswold, 15 Iowa, 438; of stock according to contract, in the shares were produced in court at the trial, and filed with the clerk. (December 13, 1904.) PPEALS by defendant from judgments of the District Court for Cerro Gordo County in favor of plaintiffs in actions brought to recover the value of certain shares of stock which defendant had agreed to repurchase from plaintiffs. Affirmed. Statement by Deemer, Ch. J.: Actions to recover the par value of certain shares of stock in the defendant company, pursuant to a contract whereby the defendant promised and agreed that, in the event it sold any of its connections, franchises, or business in the state of Minnesotɩ, it would repurchase of the plaintiffs and pay the par value of any shares of stock in the company owned and held by them. The three actions are based on identical contracts and arrangements, and are the same except as to parties and the number of shares held by them. The defendant filed answers in each case, to which the plaintiffs separately filed motions to strike and demurrers. The motions were each sustained. and, defendant electing to stand upon its answers, judgment was rendered against it in each case as prayed. Defendant ap peals. Wade v. Bridges, 24 Ark. 569; Pacific Fac tor Co. v. Adler, 98 Cal. 271, 25 Am. St. Rep. 106, 27 Pac. 36; Aitken v. Clark, 15 Abb. Pr. 319; Davis v. Louisville & N. R. Co. 108 Ala. 660, 18 So. 687: Wilson v. Marks, 18 Fla. 322; Orne v. Cook, 31 Ill. 238; State ex rel. Nave v. Newlin, 69 Ind. 108; Burk v. Taulor, 103 Ind. 399, 3 N. E. 129; Savage v. Challiss, 4 Kan. 319; Armstead v. Neptune, 56 Kan. 750, 44 Pac. 998; Littlejohn v. Greeley, 13 Abb. Pr. 311, 22 How. Pr. 345; Smith V. American Turquoise Co. 77 Hun, 192, 28 N. Y. Supp. 329; Mason v. Dutcher, 24 N. Y. Civ. Proc. Rep. 345, 33 N. Y. Supp. 689; 1 Boone, Code Pl. 256; Finch v. Finch, 10 Ohio St. 501; State use of Wyandot County v. Harper, 6 Ohio St. 607, 67 Am. Dec. 363; Walter v. Fowler, 85 N. Y. 621; McCammack v. McCammack, 86 Ind. 387; Jackson v. Lebar, 53 Cal. 257. Without bringing stock into court for defendant, written tender was of no avail. Code, 3061; Johnson v. Triggs, 4 G. Greene, 97; Freeman v. Fleming, 5 Iowa, 460; Mohn v. Stoner, 11 Iowa, 30, 14 Iowa, 115; Warrington v. Pollard, 24 Iowa, 281, 95 Am. Dec. 727; Shugart v. Pattee, 37 Iowa, 422. The agreements for free passes and to repurchase the stock were fraudulent and void as to the company, other stockholders, and creditors, against good public policy, and void; and defendant had a right to make Messrs. Cliggitt, Rule, & Keeler and such defense. J. J. Clark, for appellant: 2 Clark & M. Priv. Corp. § 397; Melvin The demurrer waived the right to file the v. Lamar Ins. Co. 80 Ill. 446, 22 Am. Rep. motion. White Oak v. Oskaloosa, 44 Iowa, 512; 1 Boone, Code Pl. § 249; New York Ice Co. v. Northwestern Ins. Co. 21 How. Pr. 234. 12 Abb. Pr. 74: Russell v. Chambers. 31 Minn. 54, 16 N. W. 458; Smith v. Countryman. 30 N. Y. 655. The motion to strike out the answer was an improper method of testing the sufficiency of the matters of defense presented. Clark v. Cress, 20 Iowa, 50; Evans v. Robbins, 29 Iowa, 472; Hall v. Harris. 61 Iowa, 500, 13 N. W. 665, 16 N. W. 535; Walker v. Pumphrey, 82 Iowa, 487, 48 N. W. 928; State ex rel. McDonald v. DeKruif, 72 Iowa, 488, 34 N. W. 607; Irwin v. Yeager, 74 Iowa, 174, 37 N. W. 136; Wattels v. Minchen, 93 Iowa, 517, 61 N. W. 915: Var Sickle v. Keith. 88 Iowa, 9. 55 N. W. 42; Rhoadabeck v. Blair Town Lot & Land Co. 62 lowa. 370. 17 N. W. 582; Bowman v. Chicago, St. P. & K. C. R. Co. 199; White Mountains R. Co. v. Eastman, 34 N. H. 124; Blodgett v. Morrill, 20 Vt. 509: Robinson v. Pittsburgh & C. R. Co. 32 Pa. 334, 72 Am. Dec. 792; Downie v. White, 12 Wis. 176, 78 Am. Dec. 731; Upton v. Tribilcock, 91 U. S. 45, 23 L. ed. 203; Brigham v. Mead, 10 Allen, 245; Buffalo &N. Y. City R. Co. v. Dudley, 14 N. Y. 336; Seymour v. Sturgess, 26 N. Y. 134; Sawyer v. Hoag, 17 Wall. 610, 21 L. ed. 731; Tuckerman v. Brown, 33 N. Y. 297; 28 Am. Dec. 386: Ogilvie v. Krox Ins. Co. 22 How. 380, 16 L. ed. 349; Osgood v. Laytin, 3 Keyes, 521; Connecticut & P. Rivers R. Co. v. Bailey, 24 Vt. 465, 58 Am. Dec. 181; Marshall Foundry Co. v. Killian, 99 N. C. 501, 6 Am. St. Rep. 539, 6 S. E. 680. On petition for rehearing. A motion to strike out cannot legally be made to-perform the office of a demurrer. Burk v. Taylor, 103 Ind. 399, 3 N. E. 129; Gjerstadengen v. Hartzell, 8 N. D. |