This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The Rule in Shelley's Case, as stated in Coke's report of the case which bears that name,23 is 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 heirs are words of limitation of the estate, and not words of purchase." We would prefer, however, for the purpose of a practical understanding and application of the rule, to state it as follows: If, after the limitation of a particular estate of freehold in favor of a person, a remainder is limited in favor of his heirs, or the heirs of his body, such person will take an estate in remainder in fee simple or fee tail, according as the limitation in remainder is in favor of
20. Thomas v. Miller, 161 111. 60, 43 N. E. 848; Drury v. Drury, 271 111. 336, 111 N. E. 140; Smith v. Rice, 130 Mass. 441; Sallivan v. Ga-resche, 229 Mo. 496, 49 L. R. A. (N. S.) 605, 129 S. W. 949; Teets v. Weise, 47 N. J. L. 154; Hall v. La France Fire Engine Co., 158 N. Y. 570, 53 N. E. 513; Jones v. Whichard, 163 N. Car. 241, 79 S. E. 503.
21. Drake v. Brown, 68 Pa. St. 223; White v. McPheeters, 75 Mo. 286. That it may be reached by a creditor in equity, see Jacob v. Howard (Ky.) 22 S. W. 332; Clarke v. Fay, 205 Mass. 228, 27 L. R. A. (N. S.) 454, 91 N. E. 328; Contra. Howbert v. Cauthorn, 100 Va. 649, 42 S. E. 683; Watson v. Dodd, 68 N. Car. 528.
22. Watson v. Adams, 103 Ga. 733, 30 S. E. 577; Smith v. Gilbert, 71 Conn. 149, 71 Am. St. Rep. 163, 41 AM. 284; Young v. Young, 89 Va. 675. 23 L. R. A. 642, 17 S. E. 470; Roundtree v. Roundtree, 26 S. C. 450. 2 S. E. 474.
23. 1 Coke 104a.
R. P.-34 his heirs or the heirs of his body, and the particular estate will merge therein, unless another estate be interposed between the particular estate and the remainder.
In the case of a limitation to A for life, with remainder to his heirs or to the heirs of his body, which is the typical form calling for an application of the rule in Shelley's Case, the effect of the rule, it would seem, as above indicated, is not to operate directly upon the life estate in A, but to give to the remainder the effect of a gift to A, the whole limitation taking effect as if it were to A for life, with remainder to A and his heirs, or to A and the heirs of his body. In the remainder in fee or in tail thus vested in A, the estate limited to him for life will merge, and he will consequently take a fee simple or fee tail in possession, while the heirs or heirs of the body will take nothing.24
If, to take another case, the remainder to the heirs or heirs of the body is conditioned on some event, as in the case of a limitation to A for life, with remainder, if A shall survive B, to A's heirs, or the heirs of his body, A then has an estate for life, and a remainder in fee or in tail conditioned on his survival of B. In such
24. The explanation of the operation of the rule here given is based upon that in 1 Hayes, Conveyancing (5th Ed.) 542-546, and the previous work by the same writer, "Principles for Expounding Dispositions of Real Estate," etc., where, as stated by Gibson, C. J., in Hileman v. Bouslaugh, 13 Pa. St. 3.51, the author "sounded the profoundest depths of the subject." As shown by this writer, to assimilate the limitation "to A for life, with remainder to his heirs," to a limitation to "A and his heirs," as is usually done, gives no assistance whatsoever in the understanding and application of the rule, except when the limitation is in this simple form, with no remainders interposed, and a particular estate in A strictly for his life. Mr. Fearne and Mr. Challis apparently take the same view of the operation of the rule as affecting only the limitation in remainder, making it an estate of inheritance in the ancestor, in which the particular estate is merged in cases proper for merger. See Fearne, Cont. Rem. 28, 33, 37; Challis, Real Prop. 153. See, also, Van Grutten v. Foxwell (1897) App. Cas. 658, 669.
Sec. 148 ]
Rights of Future Possession.
If there is an intermediate estate interposed between the life estate in the ancestor and the remainder to the heirs, as in the case of a limitation to A for life, remainder to B for life or in tail, remainder to the heirs of A, or to the heirs of A's body, A will then have a remainder in fee or in tail, as in the previous cases. The vested remainder in B, however, interposed betwen A's life estate and his remainder in fee or in tail, will prevent the merger of the life estate in the remainder. In such case, if the remainder in B should terminate before the end of A's life estate, this latter will then merge in the fee simple or fee tail of A.26 If the remainder interposed in favor of B is a contingent and not a vested remainder, while A's life estate and his remainder in fee or in tail are united in him, the former is not absolutely merged in the latter, and they become separated upon the vesting of B's estate.27
The application of the rule is not affected by the presence of a power of appointment, the exercise of which would destroy the limitation in favor of the heirs or heirs of the body. For instance, in the case of a devise to A for life, with power to convey in fee simple, and after A's death to A's heirs, the rule will apply to the same extent as if no power had been given to A.28
25. 1 Hayes, Conveyancing, 544; Fearne, Cont. Rem. 34; 1 Preston, Estates, 316, 319, 333; Eby v. Shank, 196 Pa. 426, 46 Atl. 495.
26. Fearne, Cont. Rem. 29; Challis, Real Prop. 162; 1 Preston, Estates, 266, 346; Colson v. Colson, 2 Atl. c. 246; Quick v.
Quick, 21 N. J. Eq. 13; Carpenter v. Hubbard, 263 111. 571, 105 N E. 688.
27. Fearne, Cont. Rem. 36; 1 Preston, Estates, 346; Bowies' Case, 11 Coke, 79. Stewart v. Kenower, 7 Watts & S (Pa.) 288.
28. Richardson v. Harrison, 16 Q. B. D. 85; Baker v. Scott, 62
The particular estate in the ancestor and the remainder in favor of the heirs must arise under the same instrument, and so the rule will not apply, for instance, when A, being tenant for life, with remainder to the heirs of B, conveys his life estate to B.29 The opinion has been expressed, that an estate created by the exercise of a power contained in the instrument by which the particular estate is created, is to be regarded as arising under the same instrument for the purposes of this requirement.30 This opinion has, however, been questioned.31
The rule does not apply, it has been decided, if the limitation by way of remainder is to the heirs of the body of both the donee of the particular estate and of another person, as when there is a gift to a man for life with remainder to the heirs of the bodies of such man and his present wife.32 This is not the same as a gift to a man with remainder to the heirs of the body of such man by his present wife, since in the former case the heirs are to be ascertained upon the death of the last survivor of the husband and wife, while in the latter case they are to be ascertained upon the death of the husband. In the latter case the rule would apply.33
The rule has been held to apply in the case of a limitation by devise34 in favor of the "heir" or "heir male," in the singular number, of the person first named, as well as when in favor of his heirs or heirs of the body.35
111. 86; Martling v. Martling, 55 N. J. Eq. 771, 39 Atl. 203; Cowing - Dodge, 19 R. I. G05 35 Atl. 309; Brown v. Renshaw, 57 Md. 67.
29. Fearne, Cont. Rem. 71; 1 Preston, Estates, 309; Moor v. Parker, 4 Mod. 316; Adams v. Guerard, 29 Ga. 651.
30. Fearne, Cont. Rem. 74; Challis, Real Prop. 163; Sugden, Powers (8th Ed.) 24; Milhollen v. Rice, 13 W. Va. 367.
31. See 1 Preston, Estates, 310, 324; 1 Hayes, Conveyancing, 542;
2 Jarman, Wills, 1180.
32. Fearne, Cont. Rem. 65; Gossage v. Taylor, Styles, 325; Frog-morton v. Wharrey, 2 W. Bl. 728, 3 Wils. 125, 144; Denn v. Gillot, 2 Term Rep. 435; Cotten v. Mose-ly, 159 N. Car. 1, 40 L. R. A. (N. S.) 768, 74 S. E. 454; Dawson v. Quinnerly, 118 N. C. 118, 24 S. E. 483; Mudge v. Hammill, 21 R. I. 283, 79 Am. St. Rep. 802, 43 Atl. 544; Shaw v. Robinson, 42 S. C. 342, 20 S. E. 161.
33. Litt. Sec. 28; Repps v. Bon-ham, Yelv. 131; 2 Preston. Estates, 444; Wayne v. Lawrence, 58 Ga. 15; Hunting v. Jones, (Tex. Civ. App.) 183 S. W. 858.