Rule in Shelley's case, as to estates in possession.
As to estates in remainder.
(f) Ante, p. 241.
By parity of reasoning, a similar result would follow, if the remainder were to the heirs of the body of A., or for an estate in tail, instead of an estate in fee simple. The limitation to the heirs of the body of A. would coalesce, as it is said, with his life estate, and give him an estate tail in remainder, expectant on the decease of B.; and if B. were to die during his lifetime, A. would become a complete tenant in tail in possession.
The example we have chosen, of an intermediate estate to B. for life, is founded on a principle evidently applicable to any number of intermediate estates, interposed between the enjoyment of the ancestor and that of his heir. Nor is it at all necessary that all these estates should be for life only; for some of them may be larger estates, as estates in tail. For instance, suppose lands given to A. for his life, and after his decease to B. and the heirs of his body, and in default of such issue (which is the method of expressing a remainder after an estate tail), to the heirs of A. In this case A. will have an estate for life in possession, with an estate in fee simple in remainder, expectant on the determination of B.'s estate tail. An important case of this kind arose in the reign of Edward III. (g). 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.
Remainder to the heirs of the body.
Any number of estates may interpose.
Intermediate estate tail.
(g) Provost of Beverley's ease, Year Book, 40 Edw. III. 9. See 1 Prest. Estates, 304.
And it was decided by all the justices that he was liable to pay a relief (h) 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."
The same principles will apply where the first estate is an estate in tail, instead of an estate for life. Thus, suppose lands to be given to A. and the heirs male of his body begotten, and in default of such issue, to the heirs female of his body begotten (i). Here, in default of male heirs of the body of A., the heirs female will inherit from their ancestor the estate in tail female, which by the gift had vested in him. There is no need to repeat the estate which the ancestor enjoys for his life, and to limit the lands, in default of heirs male, to him and to the heirs female of his body begotten. This part of his estate in tail female has been already given to him in limiting the estate in tail male. The heirs female, being mentioned in the gift, will be supposed to take the lands as heirs, that is, by descent from their ancestor, in whom an estate in tail female must consequently be vested in his lifetime. For, the same rule, founded on the same principle, will apply in every instance; and this rule is no other than the rule in Shelley's case, which lays it down for law, that when the ancestor, by any gift or conveyance, takes 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 words "the heirs" are words of limitation of the estate of the ancestor. The heir, if he should take any interest, must take as heir by descent from his ancestor; for he is not constituted, by the words of the gift or conveyance, a purchaser of any separate and independent estate for himself.
Where the first estate is an estate tail.
Rule in Shelley's case.
(h) See ante, pp. 116,118,120.
(i) Litt. s. 719; Co. Litt. 376 b.
The rule, it will be observed, requires that an estate of freehold merely should be taken by the ancestor, and not necessarily an estate for the whole of his own life or in tail. In the examples we have given, the ancestor has had an estate at least for his own life, and the enjoyment of the lands by other parties has postponed the enjoyment by his heirs. But the ancestor himself, as well as his heirs, may be deprived of possession for a time; and yet an estate in fee simple or fee tail may be effectually vested in the ancestor, subject to such deprivation. For instance, suppose lands to be given to A., a widow, during her life, provided she continue a widow and unmarried, and after her marriage, to B. and his heirs during her life, and after her decease, to her heirs. Here, A. has an estate in fee simple, subject to the remainder to B. for her life, expectant on the event of her marrying again (k). For to apply to this case the same reasoning as to the former ones, A. has still an estate to her and to her heirs. She has the freehold or feudal possession, and after her decease, her heirs are to have the same. It matters not to them that a stranger may take it for a while. The terms of the gift declare that what was once enjoyed by the ancestor shall afterwards be enjoyed by the heirs of such ancestor. These very terms then make an estate in fee simple, with all its incidental powers of alienation, controlled only by the rights of B. in respect of the estate conferred on him by the same gift.
But if the ancestor should take no estate of freehold under the gift, but the land should be granted only to his heirs, a very different effect would be produced. In such a case a most material part of the definition of an estate in fee simple would be wanting. For an estate in fee simple is an estate given to a man and his heirs, and not merely to the heirs of a man. The ancestor, to whose heirs the lands were granted, would accordingly take no estate or interest by reason of the gift to his heirs. But the gift, if it should ever take effect, would be a future contingent estate for the person who, at the ancestor's decease, should answer the description of heir to his freehold estates. The gift would accordingly fall within the class of future estates, of which an explanation is endeavoured to be given in the next chapter (/).
Ancestor need not have an estate for the whole of his life.
Where the ancestor takes no estate of freehold.
(k) Curtis v. Price, 12 Ves. 89.
(l) The most concise account of the rule in Shelley's case, together with the principal distinctions which it involves, is that given by Mr. Watkins in his Essay on the Law of Descents, pp. 154 et seq. (194, 4th ed.)