limitations. The two limitations are united, and executed in the ancestor, only until such time as the intervening limitations become vested, and then they open and become separate, in order to admit such limitations as they arise. But if the estate limited to the ancestor be merely an equitable

or trust estate, and the subsequent *limitation to his *211 heirs carries the legal estate, the two estates will not incorporate into an estate of inheritance in the ancestor, as would have been the case under the rule in Shelley's case, if they had been of one quality, that is, both legal and both equitable estates; and the limitation to the heirs will operate as a contingent remainder.b

The freehold in the ancestor, and the limitation to his heirs, must be by the same deed or instrument, or they will not

Fearne on Remainders, 36.

Tippin v. Cosin, Carth. 272. 4 Mod. Rep. 380. S. C. Jones v. Lord Say and Seal, 8 Viner, 262. pl. 19. Shapland v. Smith, 1 Bro. 75. Silvester v. Wilson, 2 Term Rep. 444. Mr. Fearne on Remainders, 67, supposes the rule to be the same if the case was reversed, and the ancestor had the legal estate, and the limitation over to his heirs was an equitable estate, as in a devise to A. for life, and after his death to the use of trustees, in trust for the heirs of his body. If such a devise in trust would not be a trust or use executed by the statute of uses, or entitled to the same construction as a legal estate, as I should think that it ought, under the doctrine in Wright v. Pearson, 1 Eden, 119, yet the New-York Revised Statutes would operate to destroy such a trust; for it is declared, (vol. i. 727, 728. sec. 47. 49,) that every disposition of lands by deed or devise, shall be directly to the person in whom the right to the possession and profits shall be intended to be vested, and not to any other to the use of, or in trust for, such person; and if made to one or more persons, to the use of, or in trust for another, no estate or interest, legal or equitable, shall vest in the trustee. The legal estate is attached to the beneficial interest. There would be no difficulty, therefore, under that statute, of the union of the two estates in the case stated by Mr. Fearne, for they would both be legal estates; and upon the doctrine of the English law, the devisee for life would take an estate tail. But another insuperable obstacle to that conclusion occurs under the New-York Revised Statutes, which have destroyed the rule in Shelley's Case, root and branch. It is declared, (New-York Revised Statutes, vol. i. 725. sec. 28,) that where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body, of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them. The limitation, then, in the case stated by Mr. Fearne, instead of being an estate in tail, settles down into a contingent remainder. This is arriving, diverso intuitu, to the same result with the English theory. The extent and consequences of this alteration in the doctrine of real estates, we shall have occasion to consider hereafter.

a

consolidate in the ancestor. If he acquires the freehold by one deed, and the limitation to his heirs be by another, the limitation will continue, as it originally was, a contingent remainder. But if the estate be limited to A. for life by one deed, and afterwards in his lifetime, to the heirs of his body, under the execution of a power of appointment contained in the same deed, the limitations unite according to the general rule; and on this principle, that a limitation under a power contained in a conveyance to uses, operates as a use created by and arising under, the conveyance itself. It is a branch of one and the same settlement. This arises from the retrospective relation which appointments bear to the instrument containing the power.c

Another exception to the fourth class of contingent remainders, is where there is a limitation by a special designation by will to the heirs of a person in esse, as to the heirs of the body of A. now living. The limitation is deemed to be vested in the heirs so designated by purchase, and, consequently, there is no contingent remainder in the case. Heirs are construed here to be words of purchase, and not of limitation, in order to carry into effect the manifest intention of the testa

tor, which, in this instance, controls the common law *213 maxim, that nemo est hæres viventis. *There is also

a class of cases under this branch of the law of re

Moore v. Parker, 1 Lord Raym. 37, where Lord Ch. J. Holt traces back the distinction to 29 Edw. III. Doe v. Fonnereau, Doug. Rep. 487.

b Buller's note, 261, to Co. Litt. 299. b. The observations of Mr. Fearne on this point are with his usual acuteness. Fearne on Remainders, 85.

• Mr. Preston on Abstracts of Title, vol. i. 115, speaks too generally when he says, that all estates, arising from the execution of powers, operate by way of executory devise or shifting use. There is no doubt that a remainder may arise under the execution of a power. Cornish on Remainders, 45.

4 Burchet v. Durdant, 2 Vent. 311. James v. Richardson, 2 Jones' Rep. 99. 2 Lev. 232. S. C. Goodright v. White, 2 Blacks. Rep. 1010. Lord Coke says, (Co. Litt. 24. b,) that if lands be given to A. and the heirs female of his body, and he dies leaving a son and daughter, the daughter shall inherit. But if A. hath a son and daughter, and a lease for life be made, remainder to the heirs female of the body of A., the heir female takes nothing: for she must be both heir and heir female to take by purchase, and her brother, and not she, is heir. The distinction turns on the difference between the operation of words of limitation, and words of purchase. In the first case, the daughter takes by descent, and in the second she takes by purchase, and must answer to the whole description, of being both heir

mainder, which relate to the condition annexed to a preceding estate, and which give rise to the question whether it be not a condition precedent tending to give effect to the ulterior limitations. Mr. Fearne distinguishes such cases by three classes: First, where there are limitations after a preceding estate, which is made to depend on a contingency that never takes effect; and the decisions show, that in order to support the testator's intention, the contingency is deemed to affect only the estate to which it is annexed, without extending to, or running over, the whole *ulterior train of *214 limitations. Secondly, limitations over upon a conditional contingent determination of a preceding estate where such preceding estate never takes effect. Here there is no apparent distinction between the preceding estate and those which follow it, and, consequently, the contingency will extend to, and connect itself with, all the subsequent limitations, and destroy them, as contingent remainders, depending on a contingency which never happens. Thirdly, limitations over upon the determination of a preceding estate by a contingency, which, though such preceding estate takes effect, never happens. In this case the subsequent limitations will take place.d

and female. Mr. Hargrave, in a long and learned note, (note 145,) undertakes to vindicate the reasonableness and solidity of this distinction of Lord Coke, against the severity of modern criticism. Mr. Fearne, (p. 277,) refers with great approbation to this note of Mr. Hargrave; but I notice it only as one strong illustration of the fact, that the English law of real property has, in the lapse of ages, become incumbered with much technical and abstruse refinement, which destroys its simplicity and good sense, and renders it almost impossible for ordinary minds to obtain the mastery of the science. Lord Chancellor Cowper's scorn of this distinction is very apparent in his powerful and spirited opinion in Brown v. Barkham, (Prec. in Ch. 461,) where he says, that “it has no foundation in natural reason, but is raised and supported purely by the artificial reasoning of lawyers." Lord Hardwicke, also, when the same case was brought before him, on a bill of review, declared himself "fully convinced of the unreasonableness of the rule," though he bowed to the authority of it.

Napper v. Sanders, Hutton, 119. Tracy v. Lethieulier, 3 Atk. Rep. 774. Amb. 204. S. C. Horton v. Whitaker, 1 Term Rep. 346.

• Davis v. Norton, 2 P. Wms. 390. Doe v. Shippard, Doug. Rep. 75.

d Scatterwood v. Edge, 1 Salk. Rep. 229. Avelyn v. Ward, 1 Ves. 422. Lord Hardwicke decided, in Tracy v. Lethieulier, in favour of a vested remainder after a conveyance of a conditional or determinable fee. This abstruse point is learnedly discussed in the American Jurist for January, 1843. To those who wish to pursue 15

VOL. IV.

IV. Of the rule in Shelley's Case.

The rule in Shelley's case has been already alluded to, but it occupies so prominent a place in the history of the law of real property, that it ought not to be passed over without more particular attention. In Shelley's Case, the rule was stated, on the authority of several cases in the Year Books, to be, "that when the ancestor, by any gift or conveyance, *215 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." Mr. Preston, in his elaborate essay on the rule,b gives us, among several definitions, one of his own, which appears to be full and accurate. "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, create 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 the ancestor takes the freehold by express limitation, or by resulting use, or by implication of law; in either case the subsequent remainder to his heirs unites with, and is executed on, his estate for life. Thus, where A. was seised in fee, and

into greater detail these abstruse distinctions, I refer to Mr. Fearne's analysis of the cases which declare and enforce them, in order to carry into effect the intention of the testator. Fearne on Rem. 300-317. It would certainly be incompatible with the general purpose of these essays, to be raking in the ashes of antiquated cases, and critically shifting dry facts and circumstances arising on wills and settlements, merely to arrive at some technical reasoning, adapted to promote the testator's or the settler's views. As far as it is necessary, on this subject, it is happily done to our hand, by the acute investigations of Mr. Fearne himself.

■ 1 Co. 104.

b Preston on Estates, vol. i. 263-419.

I have ventured to abridge the definition in a slight degree, and with some small variation in the expression, without intending to impair its precision.

covenanted to stand seised to the use of his heirs male, it was held, that as the use during his life was undisposed of, it of course remained in him for life by implication, and the subsequent limitation to his heirs attached to him.a

The cases from the Year Books, as cited in Shelley's Case, are 40 Edw. III., 38 Edw. III., 24 Edw. III., 27 Edw. III.; and Mr. Preston gives at large a translation of the first of these cases, as being one precisely in point in favour *of the rule. Sir William Blackstone, in his opinion *216 in the case of Perrin v. Blake, relies on a still earlier case, in 18 Edw. II., as establishing the same rule. It has certainly the pretension of high antiquity, and it was not only recognised by the court in the case of Shelley, but it was repeated by Lord Coke, in his Institutes, as a clear and undisputed rule of law, and it was laid down as such in the great abridgments of Fitzherbert and Rolle. The rule is equally applicable to conveyances by deed, and to limitations in wills, whenever the limitation gives the legal, and not the mere trust or equitable title. But there is more latitude of construction allowed in the case of wills, in furtherance of the testator's intention; and the rule seems to have been considered as of more absolute control in its application to deeds. When the rule applies, the ancestor has the power of alienation, for he has the inheritance in him; and when it does not apply, the children or other relations, under the denomination of heirs, have an original title in their own right, and as purchasers by that name. The policy of the rule was, that no person should be permitted to raise in another an estate which was essentially an estate of inheritance, and at the same time make the heirs of that person purchasers.

Various considerations have been supposed to have con

• Pibus v. Mitford, 1 Vent. 372. Hayes v. Forde, 2 Blacks. Rep. 698. Fearne on Remainders, 42. 52, 53. It was held, in Doe v. Welford, 12 Adolph. & Ellis, 61, on the authority of Baron Gilbert, in 6 Bacon's Abr. 7th edit. 655, tit. Remainder and Reversion, B. 2, and of Fearne on Cont. Rem. 29, that a remainder in tail, given to a party who takes a previous life estate by the same event, does not exclude intermediate estates, under any just construction of the rule in Shelley's Case.

The case of the Provost of Beverly, 40 Edw. III. Preston on Estates, vol. i. 304.

Harg. Law Tracts, 501.

d Fitz. Abr. tit. Feoffment, pl. 109. Co. Litt. 22. b. 319. b. 2 Rol. Abr. 417.