No tenure between particular tenant and remainderman.
No rent service.
Powers of alienation may be exercised concurrently.
(s) Litt. s. 215. (t) Ante, p. 232.
(u) Stat. 8 & 9 Vict. c. 106, s. 3; ante, p. 148.
(v) Litt. s. 60; Co. Lite. 134 a.
(.x) Litt. s. 60; 2 Black. Com. 167.
Words used to confer a vested remainder after a life interest.
A vested re-mainder may be conveyed by deed of grant.
In all the cases which we have as yet considered, each of the remainders has belonged to a different person. No one person has had more than one estate. A., B. and C. may each have had estates for life; or the one may have had a term of years, the other an estate for life, and the last a remainder in tail, or in fee simple. But no one of them has as yet had more than one estate. It is possible, however, that one person may have, under certain circumstances, more than one estate in the same land at the same time, - one of his estates being in possession, and the other in remainder, or perhaps all of them being remainders. The limitation of a remainder in tail, or in fee simple to a person who has already an estate of freehold, as for life, is governed by a rule of law, known by the name of the rule in Shelley's case, - so called from a celebrated case in Lord Coke's time, in which the subject was much discussed (z), - although the rule itself is of very ancient date (a). As this rule is generally supposed to be highly technical, and founded on principles not easily to be perceived, it may be well to proceed gradually in the attempt to explain it.
Definition of a vested remainder.
One person may have more than one estate.
Rule in Shelley's case.
(y) , Fearne, Cont. Item. 216; 2 Prest. Abst. 113.
(z) Shelley's case, 1 Rep. 94, 104.
We have already seen, that, in ancient times, the feudal holding of an estate granted to a vassal continued only for his life (b). And from the earliest times to the present day a grant or conveyance of lands, made by any instrument (a will only excepted), to A. B. simply, without further words, will give him an estate for his life, and no longer. If the grant was anciently made to him 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 chapters (c). 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 (d). At the present day, when the heir is perhaps the last person likely to get the estate, these 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 (e). 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.
Feudal holdings anciently for life only.
To A. for his life, and after his decease to his heirs.
(a) Year Book, 18 Edw. II. 577, translated 7 Man. & Gran. 944, n. (c); 38 Edw. III. 26 b; 40 Edw. III. 9.
(b) Ante, p. 17.
(c) Ante, pp. 17, 34 - 40, 59 - 62.
Words of limitation.
(d) See ante, pp. 139, 140; Perrin v. Blake, ante, pp. 205,206.
(e) Ante, p. 41.
Having proceeded thus far, we have already mastered the first branch of the rule in Shelley's case, namely, that which relates to estates in possession. This part of the rule is, in fact, a mere enunciation of the proposition already explained, that when the ancestor, by any gift or conveyance, takes an estate for life, and in the same gift or conveyance, an estate is immediately limited to his heirs in fee or in tail, the words " the heirs" are words of limitation of the estate of the ancestor. Suppose, however, that it should anciently have been wished to interpose between the enjoyment of the lands by the ancestor and the enjoyment by the heir, the possession of some other party for some limited estate, as for his own life. Thus, let the estate have been given to A. and his heirs, but with a vested estate to B. for his own life, to take effect in possession next after the decease of A., - thus suspending the enjoyment of the lands by the heir of A., until after the determination of the life estate of B. In such a case it is evident that B. would have had a vested estate for his life, in remainder, expectant on the decease of A.; and the manner in which such remainder would have been limited would, as we have seen (f), have been to A. for his life, and after his decease to B. for his life. The only question then remaining would be as to the mode of expressing the rest of the intention, - namely, that, subject to B.'s life estate, A. should have an estate in fee simple. To this case the same reasoning applies, as we have already made use of in the case of an estate to A. for his life, and after his decease to his heirs. For an estate in fee simple is an estate, by its very terms, to a man and his heirs. But, in the present case, A. would have already had his estate given him by the first limitation to himself for his life; nothing, therefore, would remain but to give the estate to his heirs, in order to complete the fee simple. The last remainder would, therefore, be to the heirs of A.; and the limitations would run thus: "To A. for his life, and after his decease to B. for his life, and after his decease to the heirs of A." The heir, in this case, would not have taken any estate independently of his ancestor any more than in the common limitation to A. and his heirs: the heir could have claimed the estate only by its descent from his ancestor, who had previously enjoyed it during his life; and the interposition of the estate of B. would have merely postponed that enjoyment by the heir, which would otherwise have been immediate. But we have seen that the very circumstance of a man's having an estate which is to go to his heir will now give him a power of alienation either by deed or will, and enable him altogether to defeat his heir's expectations. And, in a case like the present, the same privilege will now be enjoyed by A.; for, whilst he cannot by any means defeat the vested remainder belonging to B. for his life, he may, subject to B.'s life interest, dispose of the whole fee simple at his own discretion. A. therefore will now have in these lands, so long as B. lives, two estates, one in possession and the other in remainder. In possession A. has, with regard to B., an estate only for his own life. In remainder, expectant on the decease of B., he has, in consequence of his life interest being followed by a limitation to his heirs, a complete estate in fee simple. The right of B. to the possession, after A.'s decease, is the only thing which keeps the estate apart, and divides it, as it were, in two. If, therefore, B. should die during A.'s life, A. will be tenant for his own life, with an immediate remainder to his heirs; in other words he will be tenant to himself and his heirs, and will enjoy, without any interruption, all the privileges belonging to a tenant in fee simple.