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 existence of a limitation in favor of the heirs, or heirs of the body, of the donee of a prior life estate, does not properly call for the application of the Rule in Shelley's case unless the word "heirs" can be regarded as meaning an indefinite number of persons to take in succession, "the whole line of inheritable succession," as distinguished from those individuals who might answer to the designation of "heirs" at some particular time.59 The question has consequently arisen with some degree of frequency whether the presence of qualifying words in the particular conveyance or devise, in connection with "heirs" or "heirs of the body," had the effect of calling for a construction of these latter expressions as meaning, not a line of succession but merely those persons who might be the heirs of the ancestor named at the time of his death. The English cases are to the
56. Papillon v. Voice, 2 P. Wms. 471, 5 Gray's Cas. 95; Langley v. Baldwin, 1 Eq. Cas. Abr. 185, pi. 29.
57. Perrin v. Blake, 4 Burrow, 2579, 1 W. Bl. 672; 6 Cruise, Dig. tit. 38, c. 14, Sec.Sec. 70, 71; Martling v. Martling, 55 N. J. Eq. 771, 39 Atl. 203.
58. Doe d. Thong v. Bedford, 4 Maule & S. 362; See Thomas v.
Higgins, 47 Md. 439; Crockett v. Robinson, 46 N. H. 454; Stephenson v. Hagan, 15 B. Mon. (Ky.) 282; Moore v. Brooks, 12 Gratt. (Va.) 135.
59. Co. Litt. 376b, Butler's note; Fearne, Cont. Rem. 188; 1 Preston, Estates, 282; 1 Hayes, Conveyancing (5th Ed.) 543; De Vaughn v. Hutchinson, 165 U. S.
566, 41 L. Ed. 827; Vogt v. Graff, 222 U. S. 404, 56 L. Ed. 249; Gordon v. Cadwalader, 164 Cal. 509, 130 Pac. 18; Aetna Life Ins. Co. v. Hoppin, 249 111. 406, 94 N. E. 6C9; Stephenson v. Hagau, 15 B. Mon. (Ky.) 282; Hall v. Gradwohl, 113 Ind. 293, 77 Atl. 480; Peer v. Hen-nion, 77 N. J. L. 693, 29 L. R. A. (N. S.) 945, 76 Atl. 1084; Puckett v. Morgan, 158 N. C. 344, 74 S. E. 15; Kuntzleman's Estate, 136 Pa. 142, 20 Am. St. Rep. 909, 20 Atl. 645; Burges v. Thompson, 13 R. I. 712; Rowe v. Moore, 89 S. C. 561, 72 S. E. 468; Taylor v. Cleary, 29
Gratt. (Va.) 448.
60. 2 Jarman, Wills, 1205; Fearne, Cont. Rem. 181.
61. 1 Preston, Estates, 349; 2 Jarman, Wills, 1208; Shelley's Case, 1 Co. Rep. 96; Tucker v. Adams, 14 Ga. 548; Leathers v. Gray, 96 N. Car. 548, 2 S. E. 455.
62-63. 2 Jarman, Wills, 1172; Evans v. Evans (1892) 2 Ch. 173. But a limitation by way of remainder to the heir male "forever" has been regarded as within the rule. Silcocks v. Silcocks (1916) 2 Ch. 161, discussed 15 Mich. Law Rev. at p. 361.
The distinction thus made between the effect of words of limitation attached to the word "heirs" in the plural and the effect of such words when attached to the word "heir" in the singular appears to arise from the fact that, under the English system of primogeniture, there is only one heir at any particular time, and consequently to give to the plural expression a meaning other than that of the whole line of inheritable succession would involve in effect the substitution therefor of the singular expression, a consideration which can obviously not apply when the singular and not the plural expression occurs in the conveyance or devise.64 In this country, where, by reason of the abolition of primogeniture, more than one heir can exist at a single time, the distinction referred to might seem to be inapplicable, and words of limitation attached to the expression "heirs" or "heirs of the body," might well be regarded as indicating that such words designate the heirs living at the ancestor's death. Such a view has been applied in at least one jurisdiction,65 but ordinarily the courts in this country have adopted without question the rule of the English decisions, that the insertion of words of limitation in connection with the expression "heirs" or "heirs of the body," will not exclude the rule.66 And likewise the fact that the gift to the heirs,67 or to the heirs of the body,68 is expressed to be in fee simple or forever has not been regarded as affecting the application of the rule.
64. See the admirable editorial note in 27 Harv. Law Rev. at p. 673.
65. Aetna Life Ins. Co. v. Hop-pin. 249 111. 406, 94 N. B. 669; Benson v. Tanner, 276 111. 594, 115 N. E. 191; Aetna Life Ins. Co. v. Hop-pin, 214 Fed. 928. See Daniel v. Whartenby, 17 Wall. (U.S.) 639, 21 L. Ed. 661; De Vaughn v. Hutchison, 165 U. S. 566, 41 L. Ed. 827; Tucker v. Adams, 14 Ga. 548; Shreve v. Shreve, 43 Md. 382; Burges v. Thompson, 13 R. I. 712.
66. Schoonmaker v. Sheely, 3
Denio (N. Y.) 485; Gaorge v. Morgan, 16 Pa. 95; Carroll v. Burns, 108 Pa. 386; Andrews v. Lowthrop, 17 R. I. 60, 20 Atl. 97; Clark v. Neves, 76 S. C. 484, 12 L. R. A. (N. S.) 298, 57 S. E. 614; Hail v. Smith, 25 Gratt. (Va.) 70.
67. Bishop v. Selleck, 1 Day, 299; Fowler v. Black, 136 111. 363, 11 L. R. A. 670, 26 N. E. 596; Bonner v. Bonner, 28 Ind. App. 147, 62 N. E. 497; Brown v. Bryant. 17 Tex. Civ. App. 454, 44 S. W. 399; Manchester's Petition, 22 R. I. 636, 49 Atl. 36.
It has been quite frequently decided that the rule is not excluded by the addition to "heirs" or "heirs of the body," of words indicating that the heirs or heirs of the body are to take concurrently or distributively, which they could not do if "heirs" means the line of in heritable succession and not individuals living at some particular time. That is, the presumption that the word heirs is used in its technical sense is not overcome by the addition of inconsistent words of that character, as when it is stated that the heirs or heirs of the body are to take "share and share alike,"69 that the property shall be equally divided between them,70 or that they shall take in the proportions which the ancestor may appoint.71