nam nemo est hæres viventis; consequently, the inheritance would be in abeyance during the life of the ancestor, a result always deprecated in the law and avoided as much as possible. This is a weighty reason affecting the public, and should be set-off only by a very considerable private benefit to be derived from the abolition of the rule.

A third reason resulting from the last one is, that if the heir takes, as contingent remainder-man and not by descent, there could be no regular alienation of the fee during the life of the ancestor.

A clog would thus be put upon the circulation of property, and a limited kind of the obnoxious estate-tail created, which could not be barred except by some such bold step as was taken by the judges in 12 Edw., IV, or by express legislation.

Mr. Fearne's remarks are very appropriate here. He says: The construction adopted by the court of King's Bench in the case of Perrin vs. Blake, so far from unlocking property, (as it was observed it would, in the argument of that case), really ties it up for a longer period, and imposes a more strict clog upon it than the limitations commonly used in marriage settlements; for, in such settlements, the first son that attains the age of twenty-one years may, with the consent and concurrence of his father, by suffering a recovery, unfetter the estate, and make a new settlement upon his marriage or other desirable occasion; but it is quite otherwise if the heir takes the remainder as purchaser. The inheritance must remain suspended during the father's life; and though he should have half a score of children, yet, should he live to an old age, and survive them, the estate can not vest in any of them, (much less be sold), but may, perhaps, become the property of some remote remainder-man, whose name, probably, was inserted in the will only to wind up the general round of limitations. Such a construction, if once fully established, would open an almost unlimited power to the judge of disposing of the property of testators, and directing the circulation of it to his own mind; and this, I take it, is the only sense in which it could be said to remove any clog upon the circulation of property: Con'g Rem., 263-4.

A fourth reason, chiefly relied upon by Mr. Hargrave is, that the genuine rule, in Shelley's case, is part of an ancient policy of the law, to guard against the creation of estates of inheritance with qualities, incidents and restrictions foreign to their nature, and to preserve the marked distinction between the acquisition of a title by descent and by purchase, and to prevent the former from being stripped of its proper incidents, and disguised with the qualities of

the latter, whereby the estate would become a compound of descent and purchase-an amphibious species of inheritance, or freehold with unlimited succession to the heirs without the other properties of inheritance: Hargr. Law Tracts, 489, 551.

3. Ought the rule to be restored, or entirely abolished?

The reasons above given for the rule, except the first, are as applicable in this country, at the present day, as they were in England when the doctrine originated. Indeed, the policy of our laws favoring, as it does, unfettered inheritances, free alienation of property, and the holding liable of heirs for their ancestors' debts upon principles of equity, ought to make them apply with greater force.

There is but one argument for its abolition really worthy of consideration, and this has been confined to devises, as to which some of the States have abolished the rule, leaving it in force as to gifts and grants.

The Court of King's Bench in Perrin vs. Blake, laid it down as a principle, that the intention of the testator should be the sole rule for construing his will, and should control the legal import of the words. Mr. Fearne makes an answer to this in a which leaves no room to doubt its conclusiveness.

manner

It may be summed up in this extract: "Whenever the construction upon the apparent intent of the testator, is not contrary to the construction upon certain established legal maxims, respecting the import of terms made use of by him, so far let the apparent intent be the guide in the construction, but not one jot further:" Cont'g. Rem. m.pp., 267-8-9. But as the statute which abolishes the rule thereby declares what shall be the construction, this answer loses its force, and the question still recurs, which of the two constructions is preferable.

It may be observed, in the first place, that the rule is the common law, and a respect for its wisdom-that perfection of reason which Lord Coke says it is-seems to require that the rule should not be abrogated, unless it can be shown that it owes its existence solely to the odious ond burdensome Feudal system of the dark ages, and, as a relic of that system, subserves no good at the present time. It has been remarked, by an eminent Professor, that it is dangerous to tamper with the principles of the common law, even when the reasons for them can not be seen; that, although an existing evil may be remedied, yet the operation of the new law is almost sure to create a greater one when tested by a very brief experience. It is, indeed, too often the resort of political legislatures

to cut the Gordian knot of legal difficulties, which they can not, or do not wish to take the trouble to untie. The reasons for repealing the common law, when not at variance with our institutions and system of government, should be both clear and strong, and it should be certain that no evils, of even as great a nature as those proposed to be remedied, will be entailed by the statute. It may be objected that, unless it appears that some good results from its preservation, the rule ought to be abolished, because there is too much learning on the subject-too many fine drawn distinctions, and too much time wasted in discussions, which may be cut short by a five line statute. But then it should be remembered that the learning, the distinctions and the discussion, are matters of the past; that they but served, in their results, so far as we are now concerned, to accurately and plainly define the rule, to thoroughly test it, tỏ show its merits, to confine it within its proper limits, and to answer objections.

But to return to the principal objection, that the rule disappoints the particular intention of the grantor or testator-one answer is, that if it is once understood that the rule will be firmly adhered to the attempt to run counter to it will not be made, and there will be no particular intention to violate. The answer specially relied upon, however, is, that it is the policy of the law not to allow a grantor to make such a deed, or a testator such a will, as will invest the first taker with a freehold, and his heirs with an estate in fee by way of contingent remainders as purchasers, as may be deduced from the reasons given above; and if such an estate is attempted to be created the law will defeat it, let the intention be ever so plainly manifested. Is it not the policy of the law of this country, at this time, that inheritances should be vested, not in abeyance? That alienation should be favored, not restrained? That the properties and incidents of estates in fee should be preserved the widow given her dower and the husband his curtesy? That creditors should not be deprived of their extents for just debts by the death of the life tenant, when the purchasers of the estate are his natural heirs, and pay nothing for their remainders?

The preservation of the rule answers these questions in the affirmative; its abolition, in the negative. Can there be any doubt as to how the third inquiry of this article should be answered?

Chancellor Kent says the abolition of the rule will facilitate family settlements, and he gives no other reason for abolishing it. So it will, but such settlements have never been favored in this coun

try since the rule of primogeniture was abolished. They are contrary to the policy of our laws, and are very rare. If not mistaken, it was through his influence that New York set the example, which has been followed by so many of the States, of abolishing this famous rule, and though his eloquent requiem has doubtless been read by many, the temptation to insert it here can not be resisted.

"The judicial scholar, on whom his great master, Coke, has bestowed some portion of the 'gladsome light of jurisprudence,' will scarcely be able to withhold an involuntary sigh, as he casts a retrospective glance over the piles of learning, devoted to destruction by an edict as sweeping and unrelenting as the torch of Omar. He must bid adieu for ever to the renowned discussions in Shelley's case, which were so vehement and so protracted as to rouse the sceptre of the haughty Elizabeth. He may equally take leave of the multiplied specimens of profound logic, skilful criticism and refined distinctions, which pervade the varied cases in law and equity, from those of Shelley and Archer, down to the direct collision between the courts of law and equity, in the time of Lord Hardwicke. He will have no more concern with the powerful and animated discussions in Perrin vs. Blake, which awakened all that was noble and illustrious in talent and endowment, through every precinct of Westminster Hall. He will have occasion no longer, in pursuit of the learning of that case, to tread the clear and bright paths illuminated by Sir William Blackstone's illustrations, or to study and admire the spirited and ingenious dissertation of Hargrave, the comprehensive and profound disquisition of Fearne, the acute and analytical essay of Preston, the neat and orderly abridgement of Cruise, and the severe and piercing criticisms of Reeve. What I have, therefore, written on this subject may be considered, so far as my native State is concerned, as an humble monument to the memory of departed learning:" 4 Com., 233. Note (a). By way of contrast, and in conclusion, the following extract from the opinion of the late Chief Justice Gibson, of Pennsylvania, in Hillman vs. Bonslaugh, 1 Harris, 351—is made.

"The rule ill deserves the epithets bestowed on it in the argument. Though of feudal origin, it is not a relic of barbarism, or a part of the rubbish of the dark ages. It is part of a system; an artificial one, it is true, but still a system, and a complete one. The use of it, while fiefs were predominant, was to secure the fruits of the tenure, by preventing the ancestor from passing the estate to the heir, as a purchaser, through a chasm in the descent, disemcum

bered of the burdens incident to it as an inheritance; but Mr. Hargrave, Mr. Justice Blackstone, Mr. Fearne, Chief Baron Gilbert, Lord Chancellor Parker, and Lord Mansfield, ascribe to it concomitant objects of more or less value at this day; among them, the unfettering of estates, by vesting the inheritance in the ancestor, and making it alienable a generation sooner than it would otherwise be. However that may be, it happily falls in with the current of our policy. By turning a limitation for life, with remainder to heirs of the body into an estate tail, it is the handmaid not only of Taltarum's case, but of our statute for barring entails by a deed acknowledged in court; and where the limitation is to the heirs general, it cuts off what would otherwise be a contingent remainder, destructible only by a common recovery. In a masterly disquisition on the principles of expounding dispositions of real estate, Mr. Hayes, who had sounded the profoundest depths of the subject, is by no means clear that the rule ought to be abolished, even by the legislature; and Mr. Hargrave shows, in one of his tracts, that to engraft purchase on descent, would produce an amphibious species of inheritance, and confound a settled distinction in the law of estates. A donor is no more competent to make tenancy for life a source of inheritable succession, than he is competent to create a perpetuity or a new canon of descent. The rule is too intimately connected with the doctrine of estates to be separated from it without breaking the ligaments of property." EDMUND S. MALLORY.

Jackson, Tenn.