rules of law. That qualification applies only to the nature and operation of the estate devised, and not to the construction of the words. A man is not to be permitted by will to counteract the rules of law, and change the nature of property; and, therefore, he cannot create a perpetuity, or put the freehold in abeyance, or make a chattel descendible to heirs, or destroy the power of alienation by a tenant in fee, or in tail. In Doe v. Smith, Lord Kenyon took a distinction between a general and a secondary intention in a will, and he held, that the latter must give way when they interfered. If, therefore, the testator intended that the first taker should take only an estate for life, and that his issue should take as purchasers, yet, if he intended that the estate should descend in the line of hereditary succession, the general intent prevails, and the issue is a word of limitation. To conclude: The rule in Shelley's case survived all the rude assaults which it received in the controversy under Perrin v. Blake, and it has continued down to the present time in full vigour, with commanding authority, and with its roots struck immoveably deep in the foundations of the English law. All the modern cases contain one uniform language, and declare that the words heirs of the body, whether in deeds or wills, are construed as words of limitation, unless it clearly and unequivocally appears, that they were used to designate certain individuals answering the description of heirs at the death of the party.

The rule in Shelley's case has been received and adopted in these United States as part of the system of the common law In South Carolina the rule was early acknow ledged, and, in a recent case, after a long controversy, and conflicting decisions, the Court of Appeals, upon great

a 7 Term Rep. 531.

b Doe v. Colyear, 11 East's Rep. 548. Doe v. Jesson, 2 Bligh, 2. Doe v. Harvey, 4 Barnw. & Cress. 610.

c Dott v. Cunnington, 1 Bay, 453.

consideration, decided a case upon the basis of the authority of the rule in Shelley's case. The rule was also fully admitted as a binding authority in Virginia, in the case of Roy v. Garnett, though it was allowed to be under the control of the testator's intention; and in Maryland it has received the clearest elucidation, and the most unqualified support. In Horne v. Lyeth, the rule, under all its modifications and exceptions, was learnedly and accurately expounded. In that case, a devise of a term for ninety-nine years to A., during her natural life, and, after her death, to her heirs, was held to pass to A. the entire interest in the term. It was admitted by Ch. J. Dorsey, that if it had been a devise of an estate of inheritance, the remainder would have been immediately executed in the ancestor, and he would have been seised of an estate in fee. The word heirs, when used alone, without explanation, is always a word of limitation, and not of purchase, and no presumed intention will control its legal operation. Even superadded words of limitation, engrafted on the first limitation, would not alter the rule, unless they went to alter, abridge, or qualify the words, and to establish a new succession inconsistent with the descent pointed out by the first words, so as to make the next heir the terminus, or stock by reference to whom the future succession was to be regulated. To change the term into a word of purchase, the heirs must not be able to take as heirs, by reason of a distributive direction incompatible with the ordinary course of descent, or the limitation must be directed to the then presumptive heirs of the person on whom the estate for life is limited. This very correct view of the rule of law, admitted the acknowledged exceptions to the rule, in the case of limitations in marriage articles, and of executory trusts, and

a Carr v. Porter, 1 McCord's Ch. Rep. 60.

b2 Wash. Rep. 9.

c4 Harr. & Johns. Rep, 431.

also where the ancestor takes a trust or equitable estate, and the heir the legal estate or an executed use; and, assuming the rule to have been introduced on feudal principles

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yet, to disregard rules of interpretation sanctioned by a succession of ages, and by the decisions of the most enlightened judges, under pretence that the reason of the rule no longer exists, or that the rule itself is unreasonable, would not only prostrate the great landmarks of property, but would introduce a latitude of construction boundless in its range, and pernicious in its consequences."

It was further declared in the same case, that the rule in Shelley's case applied to leasehold estates, as well as to estates of inheritance, and that in the bequest of chattels, a gift to A. for life, with remainder to his heirs, or to the heirs of his body, would carry the entire interest. The word issue, in grants, was exclusively a word of purchase, and in devises of real estate it often means children, and is then a word of purchase, though it may be used either as a word of limitation or of purchase. Afterwards, in Lyles v. Digge, the rule was recognised as equally applicable to limitations in wills, and conveyances by deed, and a case was withdrawn from its operation on the acknowledged exception, in the instance where the testator shows a manifest intent to give the first taker only an estate for life, by using superadded words of explanation and limita- . tion, in the selection of sons of the first taker in succession, and the heirs of their bodies successively, and making those sons evidently the stock of a new line of descent.

b

In Pennsylvania, in the case of James' claim, the rule was recognised in a decided manner, and the word issue, in a case of a devise of an estate of inheritance to A. for life, remainder to his lawful issue, was held to be a word of limitation, and that A. consequently took an estate tail.

a 6 Harr. & Johns. Rep. 364.

b 1 Dallas' Rep. 47.

Afterwards, in Findley v. Riddle, there was a devise to A. for life, and if he died leaving lawful issue, to his heirs as tenants in common, and their respective heirs and assigns; and the court, under the circumstances, in furtherance of the intent, held the words of limitation to be words of purchase, and that A. took only an estate for life, with a contingent remainder to his heirs. The English doctrine on the subject of Shelley's rule, with all its refinements and distinctions, was fully admitted, but with an evident leaning towards the doctrine of the K. B. in Perrin v. Blake, in favour of the manifest intent of the testator. The English rule was entirely recognised in Connecticut in the ease of Bishop v. Selleck. This was in 1804, but, recently, we are informed, that the rule has been abrogated by statute;" and in Massachusetts, by statute, in the year 1791, the rule was abolished, as to wills, by a provision declaring, that "a devise to a person for life, and after his death to his children, or heirs, or right heirs, in fee, shall vest an estate for life only in such devisee, and a remainder in fee in his children," &c. It is to be inferred, that the rule in Shelley's case exists in that state in full force as to deeds.

In New-York, the rule, according to the English view of it, was considered, in the case of Brant v. Gelston,d to be of binding authority; and so it continued to be until the revisers lately recommended its abolition, as being a rule "purely arbitrary and technical," and calculated to defeat the intentions of those who are ignorant of technical language. The New-York Revised Statutese have accord

c 3 Binney's Rep. 139.

b 1 Day's Rep. 299.

c 5 Conn. Rep. 100. I have not seen the statute, and am not informed to what extent it goes with the rule.

d 2 Johns. Cas. 384.

e N. Y. Revised Statutes, vol. i. 725. sec. 28.

ingly declared, 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 abolition of the rule applies equally to deeds and wills, and, in its practical operation, it will, in cases where the rule would otherwise have applied, change estates in fee into contingent remainders, and it will tie up property from alienation during the life of the first taker, and the minority of his heirs. But this, it may perhaps be presumed, was the actual intention of the party in every case in which he creates an express estate for life in the first taker, for otherwise he would not have so limited it. It is just to allow individuals the liberty to make strict settlements of their property in their own discretion, provided there be nothing in such dispositions of it affecting the rights of others, nor inconsistent with public policy, or the settled principles of law. But this liberty of modify ing at pleasure the transmission of property, is in many respects controlled, as in the instance of a devise to a charity, or to aliens, or as to the creation of estates tail; and the rule in Shelley's case only operated as a check of the same kind and to a very moderate degree. Under the existence of the rule, land might be bound up from circulation for a life, and twenty-one years afterwards, only the settlor was equired to use a little more explicitness of intention, and a more specific provision. The abolition of the rule facilitates such settlements, though it does not enlarge the individual capacity to make them; and it is a question for experience to decide, whether this attainable advantage will overbalance the inconvenience of increasing fetters upon alienation, and shaking confidence in law, by such an entire and complete renunciation of a settled rule of VOL. IV. 29