children died under age; and a question arose whether her portion became vested 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 60,000l. 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. nature of the WHERE an estate was conveyed to A. for life, with a Origin and remainder to the heirs, or heirs of the body of A.; if rule. the construction had been according to the strict meaning of the words, A. would have only taken 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. For, 1. The Lord of the fee would have been defrauded of Tit. 1. § 43. How mediate limitations are vested. the wardship and marriage of the heir, who would take as a purchaser, without claiming any thing from his ancestor by hereditary succession. II. The remainder to the heirs or heirs of the body of A., being contingent, till the death of the ancestor, the inheritance would be in abeyance: and it has been observed, that this was never allowed but in cases of absolute necessity. III. If the remainder were construed to be contingent, no alienation of the inheritance could take place during the life of the ancestor. 2. 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 2 Rep. 104. a. of freehold, and in the same gift or conveyance an 1 Inst. 22. b. 319. b. Harg. tracts, 501. Ante, c. 20. § 88. 1 Rep. 93. estate is limited, either immediately or mediately, 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. 3. The case from which this rule took its name, and in which it was finally established, was thus. Shelley's case, 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 twenty-four 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. Shelley v. Rep. 104. a & b 4. 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: for this Vide Morris v. reason the subsequent words were words declaratory, Ward, Tit. 38. and did not restrain the former words. 5. 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 c. 14. construction, for the purpose of carrying into effect the general intent of the parties: and therefore that it Harg. Tracts, is merely what Sir W. Blackstone calls a rule of in 493. Ab. vol. 2. 418. terpretation 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. 6. Serjeant 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, Cont. Rem. 33. because 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 attaching in himself. Curtis v. Curtis, 12 Ves. 89. Tit. 11. c. 4. 1 Inst. 319. b. 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 own life, by implication; and that the subsequent limitation to his heirs male was executed in him, and united to the estate for life; so that he became tenant in tail. 9. The rule expressly requires, that the particular estate should be a freehold. Therefore where the ancestor takes only an estate for years, another person being the grantor, a remainder to his heirs, or the heirs of his body, will not vest in himself, but in such heirs, by purchase. cited 1 P. Wms. 10. A settlement was made upon a marriage by a Tippin's case, third person, to the use of the husband for ninety-nine 359. years, remainder to trustees during the life of the husband, to support contingent remainders, remainder to the wife for life, remainder to the first and other sons of the marriage, remainder to the heirs of the body of the husband, remainder to the right heirs of the husband. It was admitted that the remainder in fee to the husband was contingent, because he only took the particular estate for years; and the estate did not originally move from him; for if it had, the remainder limited to his right heirs would have been the old reversion. Rem. 37, 8. 11. Where the subsequent limitation is immediate, it becomes executed in the ancestor, forming, by its union with his particular freehold, one estate of inheritance in possession. But where such limitation is Fearne, Cont. mediate, it is then a remainder vested in the ancestor, who takes the freehold, not to be executed in possession till the determination of the preceding mesne estates. But an intervening limitation for years will Bates v. Bates, not prevent the subsequent limitation from being im- 326. mediately vested. 1 Ld. Raym. Bowles's case, 12. Where the limitations intervening between the Fearne, Id. 42. first estate for life, and the limitations to the heirs of Tit. 16. c. 1. the body are contingent, the estate for life is not merged; because the intervening limitations would be thereby destroyed; but the two limitations are Meredith v. united, and executed in the ancestor, only till such Leslie, Tit. 36. time as the intervening limitations become vested; and then they open and become separate, in order to admit such intervening limitations when they arise. several limita Rem. 40. 13. Where there is a joint limitation of the freehold of joint and to several persons, followed by a joint limitation of the tions. inheritance in fee simple to them; as an estate to A. Fearne, Cont. and B. for their lives, or in tail, and afterwards to their heirs, so that both limitations are of the same quality, that is, both joint, it seems the fee vests in |