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THE RULE IN SHELLEY'S CASE.

About one-half of the States have abolished wholly or in part this famous rule. It is proposed to examine briefly in this article; what the rule is; what are the reasons and policy for it, and whether or not it should be restored.

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1. What is the Rule in Shelley's Case?

To answer this question intelligently, and not in a set form of words extracted from the books which would impress the memory only, it is proper to inquire into the elements of that class of estates with which the rule is intimately connected, or rather which constitute its antithesis, viz: Contingent Remainders. Previous to the statutes which dispense with livery of seisin, and thus modify the common law in regard to the creation and determination of freehold estates, all future estates were either Remainders or Reversions. A Remainder is the remnant of a gift after a preceeding part, (frequently called particula or small part, with reference to the whole), of the same gift has been disposed of. The term, which is a relative one, has reference to the whole gift, and not to the interest which may yet remain in the grantor, which last, is called a Reversion, because after the end of the particular estate, the land will revert or return to the grantor: Minor's Synopsis of Real Prop. "Remainders."

Remainders are either vested or contingent. A contingent Remainder is one limited to an uncertain person, or on an uncertain event, or so limited to a certain person and on a certain event as not to possess a present capacity to take effect in possession should the possession become vacant. Its most marked characteristic is the want of a present capacity to take effect in possession should the possession become vacant; as of a Vested Remainder, the most marked characteristic is the presence of such capacity: Idem.

There are four classes of contingent remainders, according to Mr. Fearne.

1. Where the remainder depends entirely on a contingent determination of the particular estate itself; e. g., grant to A. until B. returns from abroad, remainder to Z. 2. Where the contingency on which the remainder is to take effect, is independent of the de

termination of the particular estate; e. g., lease for life to A. B. and C., and if B. survive C., remainder to B. and his heirs. 3. When the person to take is certain, and the contingency on which it is limited is certain, but it may not happen during the continuance of the particular estate, or eo instanti, that it determines, e. g. lease to A. for life remainder after B.'s death, to C. and his heirs. There is on exception to this class, when there is a mere constructive possibility that the event will not happen during the continuance of the particular estate, e. g., where the lease is to A. for eighty years, remainder after A.'s death to B. and his heirs. Here there is so little probability of A.'s out-living the eighty years (so as to create a hiatus between the particular estate and the remainder over, and thus defeat it,) that the remainder is considered vested. 4. Where the remainder is limited to a person not ascertained or not in being, e. g., lease or grant, to A. for life remainder to the heirs of B., (if the estate after the death of A. had been limited to the heirs of the grantor, it would not have been a remainder, but a reversion.)

To this class there are two exceptions: First, when to the word "heirs," some descriptive phrase is annexed to show that the word is not used in its technical and proper sense, as if the phrase "now living" had been annexed to the words "heirs of B." in the last example; and second: WHEN AN ESTATE OF FREEHOLD IS LIMITED

TO AN ANCESTOR AND AFTERWARDS IN THE SAME CONVEYANCE A REMAINDER IS LIMITED MEDIATELY OR IMMEDIATELY TO HIS HEIRS OR THE HEIRS OF HIS BODY.

In such cases the words "heirs," and "heirs of his body," are not to be construed as creating a contingent remainder in the heirs, etc., but as words of limitation, vesting the fee in the ancestor, e. g., grant to A. for life, remainder to B. for life, remainder to A.'s heirs, (or the heirs of his body.) A. takes the fee subject, however, to be opened to let in B.'s life estate (which is not merged), should he survive A.

This is the celebrated rule in Shelley's Case. The famous doctrine is as old as 18 Edw. II., Year Book, fol. 577, translated in 7 Man. & Grang., 944, n (c), though Shelley's case did not occur until in the reign of Elizabeth, and it is as much a part of the common law as its twin brother rule that when an ancestor devises to his heirs the same estate they would take as heirs, they shall be considered as taking by descent, and not by purchase. See Williams on Real Property, 244-5, where a very clear view of the origin of the rule is given. In regard to the rule three things should be

noted: First, The ancestor's estate must be at least a freehold, but not necessarily for his life; it may be pur auter vie, upon joint lives, durante viduitate, an estate tail, etc. Second, the limitation to the ancestor and the heirs must be by the same instrument. And, third, it makes no difference whether the remainder be limited mediately or immediately to the heirs of the ancestor, except that in the former case, as in the above example, the limitation to the ancestor unites with that to the heirs only sub modo, and they open, if necessary, to let in the intervening estate. Fearne Cont'g. Rem. m. pp. 42-3. Lewis Bowles Case, 11 Co., 79, Williams Real Prop., 250.

The rule applies, though there is a possibility of the ancestor's estate determining in his life time, as when a lease is to A. and B. for their joint lives, remainder to C. for life, remainder to A.'s heirs. Fearne Cont'g. Rem., 37-8. So, where there is a joint limitation of the freehold to several persons followed by a joint limitation to the heirs of those persons. Id. 40. So, where the ancestor

takes a freehold by implication, Id. 49, Pibus vs. Mitford, 1 Ventris, 372. So, it applies to powers of appointment; Fearne, 102, Preston's Essay on the Rule, 57. To equitable, as well as to legal estates, Fearne 68, 78, and to wills as well as to deeds. See authorities collected in 2, Tho. Co. Lit., 172, note, (p. 3.)

Whether the manifest particular intention of a testator to confine the first taker to a life estate and prevent him from disposing of the fee should be thwarted by the application of the rule, was elaborately discussed in the also famous case of Perrin vs. Blake, 4 Burrow, 25-79, 1 Bl. Rep. 672; Dougl. 329; 1 Hargr. Law Tracts, 490. The Court of Kings Bench, Justice Yates dissenting, adjudged that the ancestor took only a life estate with contingent remainder in the heirs as purchasers, but upon a writ of error to the Exchequer Chamber, the judgment was reversed by the opinion of seven judges to one. An appeal was taken to the House of Lords, but the parties compromised and a non pros was entered. Although this case partially broke the long line of adjudications, and, for awhile, unsettled the law, yet it gave rise to those splendid essays of Hargrave, Fearne, Preston and Butler, in which the merits of the rule as a canon of real property were thoroughly tested, and every conceivable objection discussed.

The rule does not apply when the ancestor's estate is vested in him as trustee, and the limitation to the heirs is for their own benefit; Fearne 40, 68, and 78. Nor when there is a successive freehold to several, and a joint limitation to the heirs of their bodies, Id.,

41. Nor when the limitation is to the wife for life, remainder to the heirs of the husband and wife, Id., 44. Nor when the ancestor's frechold is legal, and the remainder equitable, and vice versa., Id., 68, 78. Nor when words heirs and heirs of the body are not used technically, but in a peculiar or confined sense not according their legal import. See for illustrations Fearne Con'g. Rem., m-pp. 108, 110; 229, 236; 246, 252; 2 Tho. Co. Lit., 176; (note p. 3.) Nor when the limitation to the ancestor and to the heirs are by different instruments, Fearne 31; Douglass' Rep. 508. But a will and schedule, and a will and codicils, are considered as one instrument; 2 Wm. Blackst. Rep., 698; Rawle's note to Williams Real Prop., 246.

says:

An examination of the cases, where it does not apply, will show that the plain terms of the rule are not complied with. As Sir William Blackstone, in delivering his elaborate opinion in the, Exchequer Chamber, reversing the King's Bench in Perrin vs. Blake, All those cases that had occurred from the statute of wills to that time, (over 200 years), in which heirs of the body had been construed to be words of purchase, were reducible to these four heads-either where no estate of freehold was given to the ancestor, or where no estate of inheritance was given to the heir, or where other explanatory words were immediately subjoined to the former, or lastly, where a new inheritance was grafted on the heirs of the body-none of which was the case upon which he was then speaking: Hargr. Law Tracts, 507. And, says Mr. Hargrave the most lucid expounder of the rule, when it is once settled that the donor or testator has used words of inheritance according to their legal import; has employed them intentionally to compromise the whole line of heirs to the tenant for life, and has really made him the terminus or ancestor by reference to whom the succession is to be regulated; then it will appear that, being considered according to those rules of policy from which it originated, it is perfectly immaterial whether the testator (or donor) meant to avoid the rule or not; and that to apply it, and to declare the words of inheritance to be words of limitation, vesting the inheritance in the tenant for life, as the ancestor and terminus to the heirs, is a mere matter of course. That, on the other hand, if the words of inheritance were not used in their full and proper sense, so as to include the whole inheritable blood, and make the tenant for life the ancestor, or terminus for the heirs, but the testator intended to use the word heirs in a limited, restrictive, untechnical sense, and to point at such individual person

as should be the heir, etc., of the tenant for life, at his decease; and to give a distinct estate of freehold to such single heir, and to make his or her estate of freehold the ground-work for a succession of heirs; and constitute him or her, the ancestor terminus and stock for the succession, to take its course from; in every one of these cases the premises are wanting upon which only the rule in Shelby's case interposes its authority, and that rule becomes quite extraneous matter. So, then, in order, to ascertain, in every case, whether or not the rule is applicable, the inquiry simply is, in what sense did the testator or donor use the words. If in the former sense, the rule always applies, notwithstanding a positive declaration, that it shall not. If in the latter sense, the rule is as invariably foreign to the case; the remainder is contingent until the death of the tenant for life, and the party named as heir takes by purchase: 1 Hargr. Law Tracts, 575, 577.

This view of the rule has been generally accepted and approved by the highest authorities, and, as Mr. Thomas, the learned editor of Coke upon Littleton, says: It is to be admired for its simplicity and clearness: 2 Tho. Co. Lit. 168, note, (P. end). The rule is held not to apply to executory trusts, including executory marriage settlements. These cases being absolutely in the discretion of the Courts of Chancery, which may model the future conveyances as they deem best: 2 Washb. Real Prop. m-p., 271, and authorities cited. In the Chancery case of Bagshaw vs. Spencer, 1 Ves., 1421, Lord Hardwicke held the rule not to apply to any trust estate. This was in direct conflict with the King's Bench case of Coulson vs. Coulson, 2 Atk., Rep. 246, where the rule was held to apply to all executed trusts the distinction between which and executory trusts, Lord Hardwicke ignored, in order to evade Coulson vs. Coulson; but the distinction has been clearly mantained, and he has been overruled by Lords Northington and Thurlow, Eden 119; 1 Bro., 206, and by subsequent cases.

2. What are the reasons and policy of the Rule?

The first reason usually given is, that if the heir took as purchaser and not by descent, the lord of the fee would have been deprived of the fruits of his seignory-the wardship and marriage of the heir. A very weighty reason in feudal times, but one which passed away with the burdensome incidents of tenure, and not insisted upon for preserving the rule.

A second reason is, if the heir takes the remainder as purchaser it would, of course, be contingent until the death of the ancestor,

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