Page images
PDF
EPUB

this marriage an eldest son, and six younger children; no appointment was made. By a private act of parliament the lands purchased with the 60,000l. were vested in the eldest son, upon his securing the por tions of the younger children: one of the younger children died under age; and a question arose whether her portion became yested in the surviving younger children, or went to the eldest son.

Lord Apsley said, the words of the articles imported that cross remainders should be limited to the younger children; it being perfectly plain that the eldest son was never intended to take any share of the 60,000 7. so long as there remained a younger child in being, to take: for if there had been one younger child only, that child must have taken the whole. And decreed accordingly.

TITLE XXXII.

DEED.

CHAP. XXII.

Construction.-Of the Rule in Shelley's Case.

1. Origin and Nature of the Rule. 11. How mediate Limitations are vested.

13. Of joint and several Limita

tions.

19. Both Estates must be by the same Instrument.

25. And be of the same Nature. 28. The Rule not extended to the Words Son, Child, &c.

29. Nor to the Word Heir in the Singular Number.

32. Nor to Marriage Articles.
49. Settlements in pursuance of
Articles rectified.

54. Except in Cases of Creditors.
56. The Rule not formerly applied
in Cases of Terms for
Years.

60. But is now applied.

63. Unless a contrary Intention
appear.

WHERE

SECTION 1.

Nature of the

Rule.

HERE an estate was conveyed to A. for life, Origin and with a remainder to the heirs, or the heirs of the body of A.; if the construction had been made according to the strict meaning of the words, A. would have taken only an estate for life, and the words heirs, or heirs of the body of A., would have been considered as words of purchase, giving a contingent remainder to the heirs or heirs of the body of A. But it was found that this would be attended with several inconveniences.

2. 1°. The lord of the fee would be defrauded of the wardship and marriage of the heir, who would take as a purchaser, without claiming any thing VOL. IV. B b

48.

from his ancestor by hereditary succession. 20. The remainder to the heirs, or heirs of the body, being

contingent till the death of the ancestor, the inheritTit. 1. § 47, ance would be in abeyance: and it has been observed, that this was never allowed but in cases of absolute necessity. 3°. If the remainder were construed to be contingent, no alienation of the inheritance could take place during the life of the ancestor.

[blocks in formation]

3. To remedy this, it appears to have been very early established, as a rule of 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; that always in such cases (the heirs) are words of limitation of the estate, and not words of purchase." From which it follows, that such remainder is immediately executed in possession, in the ancestor so taking the freehold, and is not contingent.

4. The case from which this rule took its name, and in which it was finally established, was thus. E. Shelley being tenant in tail, suffered a recovery, and declared the uses of it to himself for life, without impeachment of waste, remainder to a trustee for 24 years, remainder to the heirs male of the body of E. Shelley, and the heirs male of the body of such heirs male, remainder over. It was resolved by the Chancellor, and all the Judges of England, except one, that the words heirs male of the body of E. Shelley, should be construed to operate as words of limitation, and not as words of purchase; therefore that E. Shelley took an estate tail.

5. In this case it was said arguendo, that "if it should be admitted that in regard of the said subsequent words (heirs male of the body of such heirs

male) the right heirs male should have by purchase, to them and the heirs male of their bodies, then a violence would be offered, as well to the words, as to the meaning of the party; for if the heir male of the body of Edward Shelley should take as a purchaser, then all the other issue male of the body of Edward Shelley would be excluded to take any thing by the limitation; and it would be against the express limitation of the party. For the limitation was to the use of the heirs male of the body of Edward Shelley, and of the heirs male of their bodies begotten; and for default of such issue, to divers persons in remainder. So if Richard Shelley, being the heir male of the body of Edward Shelley at the time of his death, should take by purchase, then the heirs male of the body of Richard Shelley only would be inheritable, and no other of the sons of Edward Shelley, nor their heirs male; and consequently if Richard Shelley should die without issue male, the land would remain over to strangers, and all the other sons of Edward Shelley, which he then had, and might afterwards have, and their issues, would be utterly disinherited, because the words were in the plural number, heirs male of the body of Edward Shelley: the former construction would be against the very letter of the indentures, for by that means the plural number would be reduced to the singular number, that is to say, to one heir male of the body of Edward Shelley only and forasmuch as the first words, viz. heirs male of the body of Edward Shelley, include the subsequent words, viz. the heirs male of their bodies; for every heir male begotten of the body of the heir male of Edward Shelley, was, in construction of law, an heir male of the body of Edward Shelley himself:

v. Ward,

C.

Vide Morris for this reason the subsequent words were words Tit. 38. c. 14. declaratory, and did not restrain the former words. It appears from this passage, that besides the feudal reasons generally given for this rule, another existed; namely, that it was adopted as a rule of construction for the purpose of carrying into effect the general intent of the parties: and therefore that it is Harg. Tracts, merely what Sir W. Blackstone calls a rule of interpretation or evidence, to ascertain the intention of the parties; by annexing particular ideas of property to particular modes of expression; not a rule of law, of an essential, permanent, and substantial kind, which cannot be transgressed by intention.

493.

Ab. vol. 2. 418.

6. Roll has attempted a distinction respecting this rule, by saying, that where the freehold is so limited to the ancestor, and a mediate remainder to his right heirs, that all the intermediate estates, between that and the limitation to his heirs, as well as his own estate, may determine during his life; in that case the limitation to his heirs is in abeyance; because Cont. Rem. he can have no heir to take the remainder. But Mr. Fearne has controverted this distinction, and shown that the possibility of the freehold's determining in the lifetime of the ancestor who takes it, does not prevent the subsequent limitation to his heir from 12 Ves. 89. attaching in himself.

33.

Curtis v.
Curtis,

Tit. 11. c. 4. 9 37.

7. It is immaterial with respect to this rule whether the ancestor takes an estate of freehold by an express limitation; or by an implication arising from the deed in which the estate is limited to his heirs, or the heirs of his body. In either case the rule is applied, and the subsequent limitation vests in himself.

8. Thus, in the case of Pybus v. Mitford, it was determined that the covenantor took an estate for his

« PreviousContinue »