On account of the liability of contingent remainders to destruction by the determination of the preceding estate, a device was introduced to prevent this result, as follows: After the limitation of a particular estate,-for instance, an estate to A. for life,-the remainder was given to trustees to preserve contingent remainders during the life of A., and then other remainders over as in the usual limitations. In these cases, if by any means A.'s life estate was determined before his death, the trustees would hold the estate until his death, when the other remainders would take effect as though A. had not lost his estate. The trustees were held to take vested remainders under these limitations; otherwise their estates would be destroyed like other contingent remainders.89 The statute of uses does not execute the estate of the trustees.90 If the trustees should do anything to destroy their own estate, and thereby defeat the contingent remainders depending thereon, they would be guilty of a breach of trust, and liable for the damages suffered by the remainder-men.91
174. If an estate of freehold be limited to a person, and by the same instrument an estate be limited in the form of a remainder, -whether immediately after the estate, or after other estates interposed, to the heirs, or to the heirs of the body, of the same person, the words "heirs," or "heirs of the body," are words of limitation of an estate of inheritance in the ancestor, and the heirs can take only by descent, and not as purchasers.92
A grant "to A. and to his heirs," and a grant "to A. for life, and after his decease to his heirs," according to the primitive force and effect of the expressions, were manifestly identical, inasmuch as they both conferred life estates upon A., and upon the persons designated as his heirs in succession. They were still construed as identical, notwithstanding the change in the position and interest of the heir consequent upon the enlarged power of alienation in the ancestor. The limitation "to the heirs," in both cases, ceased to confer directly any estate upon the persons answering to that designation, and was referred to the estate of the ancestor, which, though expressed to be, in the first place, for life, it enlarged to an estate of inheritance, so that the heir took only by descent. This is the origin and simplest form of the rule in Shelley's Case.
89 Smith v. Packhurst, 3 Atk. 135.
90 Vanderheyden v. Crandall, 2 Denio (N. Y.) 9.
91 2 Bl Comm. 171. For a full account of trustees to preserve contingent remainders, see Webster v. Cooper, 14 How. 488.
92 Leake, Land, 343.
The limitations with which we have to do in considering this rule are not, as is seen from the definition, remainders, but they are remainders in form. The rule above stated is called the rule in Shelley's Case because it was applied in an early case by that name,93 though the rule did not originate in that case. As indicated by the statement of the rule given in the black letter, where a remainder is given to the heirs, or the heirs of the body, of the one who by the same instrument is given the particular estate, the word "heirs" is a word of limitation, and not of purchase; and the first taker has a fee simple, or a fee tail, as the case may be, instead of a life estate followed by a remainder, as the form of limitation would indicate.94 The rule in Shelley's Case applies to leaseholds as well as to freeholds.95 The limitations must be all in one instrument,96 but for this purpose a resulting use in the first taker is sufficient.97 But if one limitation is in a will, and the other in a codicil to the will, the rule applies.98 If the word "heirs" is added to the first word "heirs," as where the limitation is to A. for life, remainder to his heirs and their heirs forever, the second word "heirs" is of no effect, and A. takes a fee simple.99 The rule operates upon limitations of equitable estates as well as of legal, but both the remainder and the particular estate must be of the same kind.100 In a devise, the word "children," "sons," or "issue" may be equivalent to the word "heirs"; and, if such appears to be the intention of the testator, the rule will operate the same as if the word "heirs" had been used.101 On the other hand, the word "heirs" may be used as a word of purchase, where it designates certain ascertained persons, as children. In these cases the rule does not apply, and the person designated as heir takes a remainder.102 Nor is the rule applicable when the remainder is limited to the heirs of another than the person who takes the particular estate; for instance, where a life estate is given to A., with a remainder to the heirs of A. and B., his wife.103 An express direction, in the deed or will containing a limitation of a form within the rule in Shelley's Case, that the rule shall not operate, will be ineffectual. And the one who takes the preceding estate may convey a fee simple, or a fee tail, as the case may be, without regard to the heirs.104 And
93 Shelley's Case, 1 Coke, 88b, 93b; Moore, 136. A good discussion of the case will be found In Challls, Real Prop. 123.
94 Kleppner v. Laverty, 70 Pa. St. 70; Carson v. Fuhs, 131 Pa. St. 256, 18 Atl. 1017; Butler v. Huestis, 68 111. 594; Hageman v. Hageman, 129 111. 164, 21 N. E. 814; Leathers v. Gray, 101 N. C. 162, 7 S. E. 657; Waters v. Lyon, 141 Ind. 170, 40 N. E. 662; Taney v. Fahnley, 126 Ind. 88, 25 N. E. 882; Langley v. Baldwin, 1 Eq. Cas. Abr. 185. Cf. Turman v. White, 14 B. Mon. (Ky.) 560; Pratt v. Leadbetter, 38 Me. 9; Hamilton v. Wentworth, 58 Me. 101; Pen-in v. Blake, 1 W. Bl. 672. Bue see note on this case In
5 Gray, Cas. Real Prop. 99.
95 Ogden's Appeal, 70 Pa. St 501; Hughes v. Nlcklas, 70 Md. 484, 17 Atl. 398; Seeger v. Leakln, 76 Md. 500, 25 Atl. 862; Horne v. Lyeth, 4 Har.
& J. (Md.) 431.
96 Adams v. Guerard, 29 Ga. 651; Moor v. Parker, 4 Mod. 316.
§ 174) rule in shelley's case.
97 Pibus v. Mitford, 1 Vent 372.
98 Hayes v. Foorde, 2 W. Bl. 698.
99 Mills v. Seward. 1 Johns. & H. 733.
100 Croxall v. Shererd, 5 Wall. 268; Ward v. Amory, 1 Curt. 419, Fed. Cas. No. 17,146; Baile v. Coleman, 2 Vern. 670; Garth v. Baldwin, 2 Ves. Sr. 646.
101 Jackson v. Jackson, 127 Ind. 346, 26 N. B. 897; Roe v. Grew, 2 Wils. 322; Doe v. Cooper, 1 East, 229. But see Adams v. Ross, 30 N. J. Law, 505; Henderson v. Henderson, 64 Md. 185, 1 Atl. 72.
102 Righter v. Forrester, 1 Bush (Ky.) 278; Mitchell v. Simpson, 88 Ky. 125, 10 S. W. 372; Papillon v. Voice, 2 P. Wms. 471; Jordan v. Adams, 9 C. B. (N. S.) 483; Cowell v. Hicks (N. J. Ch.) 30 Atl. 1091. But see Jesson v. Wright, 2 Bligh, 1.
103 Shaw v. Robinson, 42 S. C. 342, 20 S. E. 161; Frogmorton v. Wharrey, 2 W. Bl. 728. Cf. Archer's Case, 1 Coke, 66b.
104 Cf. Thong v. Bedford, 4 Maule & S. 362. But see Jenkins v. Jenkins, 96 N. C. 254, 2 S. E. 522; Fields v. Watson, 23 S. C. 42; Earnhart v. Earn-hart, 127 Ind. 397, 26 N. E. 895.
The heirs will take the estate by inheritance only in case he does not dispose of it in his lifetime, or by will. In some states the rule in Shelley's Case has been abolished by statute,105 and the heirs take a contingent remainder, according to the form of the limitation.106