CHAPTER VII

RULE IN SHELLEY'S CASE

PROVOST OF BEVERLEY'S CASE.1

(Y. B. 40 Edw. III, 9. [1366.])

Lands were given to one John de Sutton for his life, the remainder, after his decease, to John his son, and Eline, the wife of John the son, and the heirs of their bodies; and in default of such issue, to the right heirs of John the father. John the father died first; then, John and Eline entered into possession. John the son then died, and afterwards Eline his wife, without leaving any heir of her body. R., another son, and heir at law of John de Sutton, the father, then entered. And it was decided by all the Justices that he was liable to pay a relief to the chief lord of the fee, on account of the descent of the lands to himself from John the father. Thorpe, who seems to have been a judge, thus explained the reason of the decision: "You are in as heir to your father, and your brother [father?] had the freehold before; at which time, if John his son and Eline had died [without issue] in his lifetime, he would have been tenant in fee simple."

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WILLIAMS ON REAL PROPERTY (21st Ed.) 346-348: We have seen that, according to feudal law, the grantee of an hereditary fief was considered as being entitled during personal enjoyment only, that is, for his life; while his heir was regarded as having been endowed with a substantial interest in the land. And these conceptions seem to have been imported into English law along with the principle of tenure. In early times after the Conquest therefore, if a grant of land were made to a man and his heirs, his heir, on his death, became entitled; and it was not in the power of the ancestor to prevent the descent of his estate accordingly. He could not sell it without the consent of his lord; much less could he then devise it by his will. The ownership of an estate in fee simple was then but little more advantageous than the possession of a life interest at the present day. The powers of alienation belonging to such ownership, together with the liabilities to which it is subject, have almost all been of slow and gradual growth, as has already been pointed out in different parts of the preceding chap

1 As stated in Williams on Real Property (21st Ed.) pp. 350, 351.

2 The same rule is said to have been mentioned in Abel's Case, 18 Edw. II, 577 (1324), which will be found translated in 7 M. & G. 941, note (c).

ters. A tenant in fee simple was, accordingly, a person who held to him and his heirs; that is, the land was given to him to hold for his life, and to his heirs, to hold after his decease. It cannot, therefore, be wondered at, that a gift, expressly in these terms, "To A. for his life, and after his decease to his heirs," should have been anciently regarded as identical with a gift to A. and his heirs, that is, a gift in fee simple. Nor, if such was the law formerly, can it be matter of surprise that the same rule should have continued to prevail up to the present time. Such indeed has been the case. Notwithstanding the vast power of alienation now possessed by a tenant in fee simple, and the great liability of such an estate to involuntary alienation for the purpose of satisfying the debts of the present tenant, the same rule still holds; and a grant to A. for his life, and after his decease to his heirs, will now convey to him an estate in fee simple, with all its incidents; and in the same manner a grant to A. for his life, and after his decease to the heirs of his body, will now convey to him an estate tail as effectually as a grant to him and the heirs of his body. In these cases, therefore, as well as in ordinary limitations to A. and his heirs, or to A. and the heirs of his body, the words "heirs" and "heirs of his body" are said to be words of limitation; that is, words which limit or mark out the estate to be taken by the grantee. At the present day, when the heir is perhaps the last person likely to get the estate, those words of limitation are regarded simply as formal means of conferring powers and privileges on the grantee-as mere technicalities and nothing more. But, in ancient times, these same words of limitation really meant what they said, and gave the estate to the heirs, or the heirs of the body of the grantee, after his decease, according to the letter of the gift. The circumstance, that a man's estate was to go to his heir, was the very thing which, afterwards, enabled him to convey to another an estate in fee simple. And the circumstance, that it was to go to the heir of his body, was that which alone enabled him, in after times, to bar an estate tail and dispose of the lands entailed by means of a common recovery.

GOODEVE, LAW OF REAL PROPERTY (4th Ed., by Ephinstone, Clark & Dickson) 239, 240: We do not know by what reasoning the rule [in Shelley's Case] was originally established; but the following considerations will show that it would be impossible for any person who understood the meaning of the words employed to deny the existence of the rule. Ever since the Conquest, English lawyers were acquainted with the difference between a conveyance "to A." and a conveyance of land "to A. and his heirs." In the first case, A.'s interest determined on his death; in the second case, it passed on his death to his heirs. Then the case arose of a conveyance "to A., with remainder to his heirs." Now what is the meaning of "the heirs of A."? (Evans v. Evans (1892) 2 Ch. 173.) It means an indefinite succession of persons,

each of whom will succeed to the land of which A. dies seised (or according to the present law of which A. was the purchaser, and dies seised), unless some prior heir alienates it, or according to the old law, becomes attainted. It is sometimes forgotten that although before the Inheritance Act, 1833 (3 & 4 Will. IV, c. 106, 9 L. Q. R. 2), heirship was traced from the person last seised, yet every blood relation of the purchaser was necessarily one of his heirs, except where he was excluded by the rule as to the half-blood. It follows therefore that, unless both the purchaser and his father and mother were bastards, the number of persons each of whom might be his heir was infinite; and as there can be only one heir at the same time, each of these persons became the heir in succession one after the other. There was no manner known to the common law in which these persons could take by purchase. The only estates which could be held by more than one person as purchaser were estates in joint tenancy and tenancy in common. The estate of the heirs could not be in joint tenancy, for the estates of joint tenants must, according to the common law, arise at the same time and not in succession; it could not be tenancy in common, because, although the estates of tenants in common may arise at different times, still persons cannot be tenants in common unless they are tenants at the same time, which is impossible in the case of heirs. If, therefore, it is not possible for the heirs to take by purchase, the only possible manner in which they can take is by descent; in other words, A. the ancestor must take the fee simple.

CHALLIS' REAL PROPERTY (3d Ed.) p. 152: In the limitations now under consideration, there occurs always an estate of freehold limited to a specified person, and a subsequent limitation, whether immediate or remote, expressed to be made to the heirs, or to some class of the heirs, of the same person. The prior estate and the subsequent limitation must both arise under or by virtue of the same instrument. Grammatically, the construction of the second limitation might be, to give a remainder by purchase to the specified heirs. And since the person whose heirs they are, or rather, are to be, is living at the date of the limitation, such a remainder, if taken by the heirs as purchasers, would be a contingent remainder of Fearne's fourth class, being a limitation in remainder to a person not yet ascertained or not yet in being. (Vide supra, p. 131.) But the law puts upon the limitation to the heirs a different construction, not giving to them any estate at all by purchase, but taking account of the mention of the heirs only for the purpose of giving a corresponding estate to the specified ancestor. Therefore, it is commonly said, that in limitations coming within the rule in Shelley's Case, the word "heirs" is not a word of purchase but a word of limitation.

ID., p. 166: The question as to the origin, or true grounds, of the rule in Shelley's Case, has given rise to much speculation, into which it is not desirable to enter at length. Considering that, at the time when the rule arose, tenure was the mainstay of our political constitution, and that the preservation of the fruits of tenure was notoriously a principal aim of the law, and that settlements giving an estate for life to the ancestor with a remainder to his heir, if they had been permitted to take effect by way of remainder, would have enabled a family to enjoy all the advantages of a descent, while evading the feudal burdens by which a descent was accompanied: the opinion seems to be more than plausible, that the true origin of the rule is to be found in the policy of feudalism. (See 1 Prest. Est. 295–309.)

1 HAYES ON CONVEYANCING (5th Ed.) 542-546: The rule assumes and founds itself upon two pre-existing circumstances,-a freehold in the ancestor, and a remainder to the heirs. The absence of either of these ingredients repels the application of the rule; their concurrence irresistibly invites it. When the rule supposes the second limitation to be a remainder, it plainly excludes,-1, the case of limitations differing in quality, the one being legal and the other equitable; 2, the case of limitations arising under distinct assurances; and, 3, the

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3 This is at all events the policy of the Statute of Marlebridge, 52 Hen. III, c. 6, enacting that the lord should not lose his wardship by a feoffment made in the tenant's lifetime to the tenant's heir, being within age; and the language of the statute shows that this and other like devices for evading feudal burdens were then well known. This enactment was not merely leveled at covinous feoffments, where the feoffor continued afterwards in receipt of the profits, but extended to bona fide feoffments to the heir's use. (Bacon, Uses, p. 25, ad init.) [See Van Grutten v. Foxwell, (1897) A. C. 659, where the origin of the rule was discussed. The true view seems to be that the rule was an inevitable result of the doctrines of the ancient common law. At the time when the rule was established, contingent remainders were not recognized as lawful limitations; consequently it was impossible to give effect to a limitation to the heirs of a person, unless they took by descent (Williams, R. P. [3d Ed.] 218, note); and even if such a limitation had been legal it would have been impossible to give literal effect to it, because this would have involved giving the heirs estates in succession by purchase (see Goodeve, R. P. [5th Ed.] p. 224). The only way of carrying out the intention of the settlor was to give the ancestor an estate of inheritance. So far, therefore, from having been invented in order to defeat the intention of settlors, the object of the rule was benignant, namely to give effect to the intention as far as possible.]

Although it be determinable, e. g. by marriage. Curtis v. Price, 12 Ves. 89 (1805).-Ed.

Harvey v. Ballard, 252 Ill. 57, 96 N. E. 558, accord. But where both estates are equitable the rule applies. Wright v. Pearson, 1 Edw. 119; Jones v. Morgan, 1 Bro. C. C. 206, overruling Bagshaw v. Spencer, 1 Ves. 142.--Ed. • Moore v. Parker, 4 Mod. 316.—Ed.

case of an executory limitation, by way of devise or use; and, consequently, upon principle, the case of a limitation arising under an appointment of the use; but authority seems to have established an anomalous exception in regard to appointments. Again, as the second limitation must be a remainder to the heirs, it follows, that, with limitations to sons, children, or other objects, to take, either as individuals or as a class, under what is termed a descriptio personæ, as distinguished from a limitation embracing the line of inheritable succession, the rule has no concern whatever. In order to find whether the second limitation is a remainder to the heirs or not, we must resort to the general rules and principles of law. The rule being a maxim of legal policy, conversant with things and not with words, applies whenever judicial exposition determines that heirs are described, though informally, under a term correctly descriptive of other objects, but stands excluded whenever it determines that other objects are described, though informally, under the term "heirs." Thus, even the word "children," aided by the context, or the word "issue," uncontrolled by the context, may have all the force of the word "heirs," and then the rule applies; while the word "heirs," restrained by the context, may have only the force of the word "children," and then the rule is utterly irrelevant. These are preliminary questions, purely of construction, to be considered without any reference to the rule, and to be solved by, exclusively, the ordinary process of interpretation. This point, kept steadily in view, would have prevented infinite confusion.

The operation of the rule is twofold: First, it denies to the remainder the effect of a gift to the heirs; secondly, it attributes to the remainder the effect of a gift to the ancestor himself. It is, therefore, clear that the rule not only defeats the intention, but substitutes a legal intendment directly opposed to the obvious design of the limitation. A rule which so operates cannot be a rule of construction. As a consequence of transferring the benefit of the remainder from the heirs, who are unascertained, to the ancestor, who is ascertained, the inheritance, limited in contingency to the heirs, may become vested in the ancestor; and, as another consequence of the same process, the ancestor's estate of freehold may merge in the inheritance. Thus-1. If land be limited to A. for life, remainder to his heirs or to the heirs of his body, the primary effect will be to give him an estate of freehold (liable, of course,

Papillon v. Voice, 2 P. Wms. 471 (1728); Leonard v. Sussex, 2 Vern. 526 (1705); 1 Prest. Estates, 355. See 8 Ill. Law Rep. 153.

Where there is a direction to trustees to convey to A. for life, with a remainder to the heirs of A., or a remainder to the heirs of A.'s body, it is regularly held that there is an executory trust, and that a settlement will be directed which will prevent the application of the rule in Shelley's Case. Theobald on Wills (7th Ed.) 725, 726; Papillon v. Voice, 2. P. Wms. 471; Parker v. Bolton, 5 L. J. Ch. 98; Duncan v. Bluett, Ir. Rep. 4 Eq. 469; Hawden v. Hawden, 23 Beav. 551; Stoner v. Curwen, 5 Sim, 264; Bastard v. Proby, 2 Cox, 6; Rochfort v. Fitz Maurice, 2 D. & War. 1; Tallman v. Wood, 26 Wend. (N. Y.) 9; Wood v. Burnham, 6 Paige (N. Y.) 513; Hanna v. Hawes, 45 Iowa, 437; Saunders v. Edwards, 55 N. C. 134; Berry v. Williamson, 11 B. Mon. (Ky.) 245, 258, 261. But see Wicker v. Ray, 118 Ill. 472, 8 N. E. 835.—Ed.