Rawle (Pa.) 168, 19 Am. Dec. 632; Waddell v. Rattew, 5 Rawle (Pa.) 231; Redfern v. Middleton, Rice (S. C.) 459; Craig v. Warner, 5 Mackey (16 D. C.) 460, 60 Am. Rep. 381; McElwee v. Wheeler, 10 S. C. (Rich.) 392; Faber v. Police, 10 S. C. (Rich.) 376; Watson v. Dodd, 68 N. C. 528; Watson v. Dodd, 72 N. C. 240; Abbott v. Jenkins, 10 Serg. & R. (Pa.) 296; Taylor v. Taylor, 118 Iowa, 407, 92 N. W. 71; Young v. Young, 89 Va. 675, 17 S. E. 470, 23 L. R. A. 642; Nichols v. Guthrie, 109 Tenn. 535, 73 S. W. 107; Henderson v. Hill, 77 Tenn. (9 Lea) 26; Roundtree v. Roundtree, 26 S. C. 450, 471, 2 S. E. 474; Blanchard v. Brooks, 12 Pick. (Mass.) 47.

The remainder given to the "heirs of the body of Sarah" is not vested, because it does not stand ready throughout its existence to take effect in possession whenever and however the preceding estate determines. If before Sarah's death the life estate should terminate by forfeiture or merger or surrender, the remainder would not stand ready, according to its terms, to come into possession. The remainder is contingent, because it is limited on an event (the death of Sarah, when the heirs of her body can be ascertained) which may not happen until after the termination of the life estate, while it may be coincident with the termination of the life estate.

There is no escape from holding that the remainder is contingent, except by construing "heirs of the body of Sarah" as meaning her children living at the date of the deed and those subsequently born, instead of denoting such children and descendants as should survive her. But in our judgment this cannot be done. When it is found that Shelley's Case does not apply, and that the words "heirs of the body" are descriptio personarum of remaindermen who are given an estate in fee simple, the question whether the remainder, which is inevitably contingent according to the legal definition and the maxim that no one can be heir of the living, can be treated as a vested remainder in children alive or as born, must be determined by observing whether or not a definition contrary to the legal one has been furnished by the donor. In Archer's Case no extra legal definition was supplied, and the remainder was held to be, not a remainder that vested in Robert's eldest son when born, but a remainder that was contingent upon a person's surviving Robert who could then answer to the legal description. When the parties to the present controversy were before the Supreme Court of Illinois, that tribunal, after finding that Shelley's Case was inapplicable, ruled that: "There is no ground whatever in this case for saying that the words 'heirs of the body' were intended to have any other than their ordinary definite legal meaning, for there are no words in the deed which in any way qualify them."

This accords with the general holdings that in the absence of a special context there is nothing to do but accept the legal definition. Bayley v. Morris, 4 Ves. Jr. 788; Canedy v. Haskins, 54 Mass. (13 Metc.) 389, 46 Am. Dec. 739; Hamilton v. Wentworth, 58 Me. 101; Frogmor

KALES FUT.INT.-20

ton v. Wharrey, 2 Wm. Black Rep. 728; Mudge v. Hammill, 21 R. I. 283, 43 Atl. 544, 79 Am. St. Rep. 802; Harvey v. Ballard, 252 Ill. 57, 96 N. E. 558; Thurston v. Thurston, 6 R. I. 296, 300; Mercer v. Safe Deposit Co., 91 Md. 102, 117, 45 Atl. 865; Kirby v. Brownlee, 7 O. C. D. 460, 463; Hanna v. Hawes, 45 Iowa, 437, 440; Zuver v. Lyons, 40 Iowa, 513; Crosby v. Davis, 2 Clark (Pa.) 403; Wood v. Burnham, 6 Paige (N. Y.) 513; Tallman v. Wood, 26 Wend. (N. Y.) 9; Jarvis v. Wyatt, 11 N. C. 227; Lemacks v. Glover, 1 Rich. Eq. (S. C.) 141; Tucker v. Adams, 14 Ga. 548; Sharman v. Jackson, 30 Ga. 224; Smith v. Butcher, L. R. 10 Ch. Div. 113; Lord v. Comstock, 240 Ill. 492, 88 N. E. 1012; Jones v. Rees, 6 Pennewill (Del.) 504, 69 Atl. 785, 16 L. R. A. (N. S.) 734; Johnson v. Jacob, 74 Ky. (11 Bush) 646; Hall v. La France Fire Engine Co., 158 N. Y. 570, 53 N. E. 513; Putnam v. Gleason, 99 Mass. 454; Richardson v. Wheatland, 48 Mass. (7 Metc.) 169; Read v. Fogg, 60 Me. 479; Williamson v. Williamson, 57 Ky. (18 B. Mon.) 329; Fulton v. Harman, 44 Md. 251, 264; Horsley v. Hilburn, 44 Ark. 458; In re Estate of Kelso, 69 Vt. 272, 37 Atl. 747; In re Well's Estate, 69 Vt. 388, 38 Atl. 83; Hall v. Leonard, 1 Pick. (Mass.) 27; Morris v. Stephens, 46 Pa. 200; Winslow v. Winslow, 52 Ind. 8.

In the cases cited by plaintiff to support the contention that "heirs of the body" should be construed to mean "children alive or as born" there was either a special context or when the question of rights arose the "children" were in fact survivors answering to the description of heirs of the body. Doe v. Laming, 2 Burr. 1100; Doe v. Graff, 11 East, 668; Gretton v. Haward, 6 Taunt. 94; Crump v. Norwood, 7 Taunt. 362; Right v. Creber, 5 B. & C. 866; De Vaughn v. Hutchinson, 165 U. S. 566, 17 Sup. Ct. 461, 41 L. Ed. 827.

We therefore conclude that the Supreme Court of Illinois, when considering the deed now in question, correctly determined and applied the Illinois law as it stood in 1862; that is, the common law of England and the general acts of Parliament in aid thereof, prior to 1606, as modified by the Illinois statute of descent.

Plaintiff, citing no Illinois cases prior to 1862, insists that the Illinois. decision between these parties is opposed to Butler v. Huestis, 68 Ill. 594, 18 Am. Rep. 589, decided in 1873, and has been virtually overruled by Moore v. Reddel, 259 Ill. 36, 102 N. E. 257, decided in June, 1913.

Though there were no apposite Illinois decisions before 1862, the law of Illinois, a common-law state, is to be regarded as settled in 1862 in accordance with the settled common law. Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428. If this Fassett deed in 1862 conferred upon defendants a contingent remainder in fee simple under the law then in force, that right in real estate could not be impaired or destroyed by subsequent legislation or subsequent decision.

Moore v. Reddel, if it does conflict with Etna Life Ins. Co. v. Hoppin, can be allowed no effect. On this writ the question is whether the trial court committed error in looking to the evidences of the Illinois

law in force in 1862. Error cannot be predicated on the trial court's failure to foresee that the Supreme Court of Illinois would not merely overturn a rule of property as declared shortly before by the same judges, but would undertake to abrogate the common law-a right reserved by chapter 28, § 1, exclusively to the Legislature. Morgan v. Curtenius, 20 How. 1, 51 L. Ed. 823; Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359; Security Trust Co. v. Black River National Bank, 187 U. S. 211, 23 Sup. Ct. 52, 47 L. Ed. 147; Western Union Tel. Co. v. Poe (C. C.) 64 Fed. 9; King v. Dundee (C. C.) 28 Fed. 33.

This case is at an end, but it may perhaps be not unfitting to say that we believe plaintiff is mistaken in asserting a conflict between the cases named. In Butler v. Huestis, in Moore v. Reddel, and in the additional case of Winchell v. Winchell, 259 Ill. 471, 102 N. E. 823, the foundational finding was that a fee tail was created, on which section 6 of chapter 30 would operate. "As to limitations controlled by that section, the only use made of the rule [in Shelley's Case] is for the purpose of determining whether by the common law a fee tail would have been created." Winchell v. Winchell, supra. Construction of section 6 of chapter 30 was within the province of the Supreme Court of Illinois; and if, in interpreting the legislative will in abrogating the common law respecting entails, the court found that "heirs of the body" of the first taker was intended by the Legislature to mean “children alive or as born," such statutory construction throws no light on the meaning of "heirs of the body" at common law in an instrument where the rule in Shelley's Case fails to bring section 6 into play. This substantially was stated in Ætna Life Ins. Co. v. Hoppin. The court there recited the settled construction of section 6, citing the cases cited in Moore v. Reddel, and then proceeded to say that: "These cases are not decisive of this case, which does not involve the application of the statute, but is merely a question of the construction of the conveyance without reference to any statute."

And the correctness of the position taken in Ætna Life Ins. Co. v. Hoppin with respect to the scope and meaning of section 6 was recognized in Moore v. Reddel. We perceive no conflict between the two lines of decisions, and we believe none was intended.

The judgment is affirmed.20

20 In the following cases, where the only superadded words of limitation did not contain the word "heirs," the rule was held to apply: Moore v. Reddel, 259 Ill. 36, 102 N. E. 257, post, p. 309 ("assigns forever"); Fowler v. Black, 136 Ill. 363, 26 N. E. 596, 11 L. R. A. 670 ("in fee simple by his [the life tenant's] heirs and their assigns forever"); Winter v. Dibble, 251 Ill. 200, 95 N. E. 1093 ("in fee simple absolute"); Clark v. Neves, 76 S. C. 484, 57 S. E. 614, 12 L. R. A. (N. S.) 298; Chamberlain v. Runkle, 28 Ind. App. 599, 63 N. E. 486; Teal v. Richardson, 160 Ind. 119, 66 N. E. 435.

But see the following cases where the superadded words of limitation did not contain the word "heirs" but only such expressions as "in fee simple," or "assigns forever," and where the rule was held not to apply. Wescott v.

PROPOSED LEGISLATION

Where any grant or devise hereafter taking effect of any property shall limit an estate for life or of freehold to any person and an estate in remainder to the heirs (or the heirs of any particular description) of such person, such person shall not be deemed to take an estate of inheritance, and the persons who, upon the taking effect of such remainder in possession, shall be the heirs (or the heirs of the class described as the same may be) of such person, shall take by virtue of the remainder so limited to them: it being the intent of this provision to abrogate the rule of law commonly known as the rule in Shelley's Case.21

Meeker, 144 Iowa, 311, 122 N. W. 964, 29 L. R. A. (N. S.) 947; Archer v. Brockschmidt, 5 Ohio N. P. 349; Tucker v. Adams, 14 Ga. 548.

NOTE ON THE APPLICATION OF THE RULE IN SHELLEY'S CASE TO PERSONAL PROPERTY.-The rule in Shelley's Case does not apply to limitations of personal property. Where, therefore, personal property is limited to A. for life and then to A.'s heirs, A. takes a life estate only, with a contingent future interest to the persons described: Smith v. Butcher, L. R. 10 Ch. Div. 113; In re Russell, 52 L. T. R. 559; Lord v. Comstock, 240 Ill. 492, 88 N. E. 1012; Gross v. Sheeler, 7 Houst. (Del.) 280, 31 Atl. 812; Jones v. Rees, 6 Pennewill (Del.) 504, 69 Atl. 785, 16 L. R. A. (N. S.) 734. See, also, Siceloff v. Redman's Adm., 26 Ind. 251, 262.

But where personal property is limited to A. for life and then to the heirs of A.'s body, it is settled by the English cases (Theobald on Wills [6th Ed.] p. 642) and in many American jurisdictions, that A. takes an absolute interest. Dott v. Cunnington, 1 Bay (S. C.) 453, 1 Am. Dec. 624; Polk v. Faris, 9 Yerg. (Tenn.) 209, 30 Am. Dec. 400; Pressgrove v. Comfort, 58 Miss. 644; Hampton v. Rather, 30 Miss. 193; Powell v. Brandon, 24 Miss. 343; Smith v. McCormick, 46 Ind. 135; Watts v. Clardy, 2 Fla. 369; Mason v. Pate's Ex'r, 34 Ala. 379; Machen v. Machen, 15 Ala. 373. See, also, Knox v. Barker, 8 N. D. 272, 78 N. W. 352; Horne v. Lyeth, 4 Har. & J. (Md.) 431. This must rest upon the conclusion that a prima facie guide to construction has been fixed by the authorities that an absolute interest was intended to be created. Of course, at this day, such a prima facie rule is artificial and contrary to the fact. Hence it may be expected to yield readily to a context which tends to show that a life interest only was intended (see Gray Rule against Perpetuities [2d Ed.] § 647, n. 3; Bucklin v. Creighton, 18 R. I. 325, 27 Atl. 221; Evans v. Weatherhead, 24 R. I. 502, 53 Atl. 866; Dull's Estate, 137 Pa. 112, 20 Atl. 418; Bennett v. Bennett, 217 Ill. 434, 75 N. E. 339, 4 L. R. A. [N. S.] 470, semble), or to be abandoned entirely (Crawford v. Wearn, 115 N. C. 540, 20 S. E. 724; Clemens v. Heckscher, 185 Pa. 476, 40 Atl. 80).

21 Prepared by Professor Ernst Freund and embodied in the draft of a bill presented to the Illinois Legislature at its sessions in 1907 and 1909. See, also, 1 Ill. Law Rev. 374–376.

CHAPTER VIII

THE STATUTORY REMAINDER CREATED BY THE STATUTE ON ENTAILS

MOORE v. REDDEL.

(Supreme Court of Illinois, 1913. 259 Ill. 36, 102 N. E. 257.) 1 CARTWRIGHT, J. The record in this case presents the question whether the remainder limited by a deed from Joshua Brown to the heirs of the body of his son, Marshall Brown, was vested in the children of the grantee before his death, or was contingent, and the decision depends upon the following facts:

On October 5, 1881, Joshua Brown executed the deed conveying the real estate, from and after his death, to Marshall Brown, "to have and to hold to him, the said Marshall Brown, for and during the term of his natural life, but without power to sell, alienate, mortgage or in any manner incumber said estate or render same liable for the debts of said Marshall Brown, with remainder to the heirs of the body of said Marshall Brown and their assigns forever." Joshua Brown died in 1897, and Marshall Brown took possession of the land. Marshall Brown was married, and was the father of the following named children: Ida R. Moore, Elsie B. Hauptman, Flora Williams, Jessie Brown, Russell Brown, William H. Brown, and Marshall F. Brown, Jr. On February 14, 1901, Marshall Brown and his wife, Ida R. Moore and husband, Elsie B. Hauptman and husband, Flora Williams and husband, Jessie Brown, Russell Brown, and William H. Brown executed their warranty deed of the premises to William E. McReynolds for a consideration of $13,600. Marshall F. Brown, Jr., was a minor 15 years of age, and the grantors in the deed to McReynolds covenanted with him that they would cause the interest of the minor to be conveyed to him by proceedings in the county court of McLean county. Sarah L. Brown, mother of Marshall F. Brown, Jr., was his guardian, and by proceedings in the county court his interest in the land was conveyed to McReynolds by a guardian's deed dated April 16, 1901, for a consideration of $1,101. On June 10, 1907, Ida R. Moore died intestate in the lifetime of her father, Marshall Brown, leaving Charles H. Moore, Rolland Moore, and Florence Moore, her children, the heirs of her body. November 27, 1907, Marshall Brown died, leaving Elsie B. Hauptman, Flora Williams, Jessie Brown, Russell Brown, William H. Brown, and Marshall F. Brown, Jr., his only surviving children, and the three grandchildren. 1 Only the opinion of the court is given.