"isting at any time after the 31st day of December, 1844, "shall be, and if created before the passing of that Act, "shall be deemed to have been,- capable of taking effect, “notwithstanding the determination, by forfeiture, sur"render or merger, of any preceding estate of freehold, in "the same manner, in all respects, as if such determination "had not happened” (h).

In connection also with the subject of contingent remainders, occurs that remarkable rule of construction so familiar in our books under the appellation of the Rule in Shelley's case (i).

This rule is propounded in Lord Coke's Reports in the following form-that wherever a man 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 word heirs is a word of limitation, and not of purchase (j). In other words, it is to be understood as expressing the quantity of estate which the party is to take, and not as conferring any distinct estate on the persons who may become his representatives.

(i) See the elaborate dissertation on this rule by Mr. Fearne, Fearne, by Butler, 28-208, 9th ed.; the observations on the rule by Mr. Hargrave, in Harg. Law Tracts, and the argument of Mr. Justice Blackstone, in Perrin v. Blake, ibid. The instances which call for the application of this rule are very numerous in our law. But they occur much more frequently where the limitation is by will, than where it is by deed. The following are among the many

modern cases on the subject: Roe v. Bedford, 4 Mau. & Sel. 362; Doe v. Jesson, 5 Mau. & Sel. 95; Doe v. Jones, 1 Barn. & Cres. 243; Doe v. Harvey, 4 Barn. & Cres. 610; Right v. Creber, 8 Dow. & Ry.718; Douglas v. Congreve, 4 Bing. N. C. 1; Harrison v. Harrison, 7 Man. & G. 938; Doe d. Cannon v. Rucastle, 8 C. B. 876.

(j) Shelley's case, 1 Rep. 104 a. As to the terms in which the rule is expressed, see Fearne, by Butler, 76, 9th ed. The rule would seem still to apply, though the ancestor's estate of freehold is of a nature that may determine in his lifetime; Brook's Estates, 76; Fearne, ubi sup. p. 29; Curtis v. Price, 12 Ves. 89.

This indeed is the ordinary force of the word heirs; for, as may be inferred from the former remarks on the subject of estates of inheritance, if land is given to a man and his heirs, he takes a fee simple (k); if to him and the heirs of his body, a fee tail(); in which cases, the word plainly operates as a mere limitation of the quantity of his estate. But where land is given to A. B. for his life, and on his decease to his heirs, or to the heirs of his body; it might be supposed, from the doctrines we have been considering with respect to remainders, that this confers a separate estate on his representatives; and that he will take for his own life only, with contingent remainder to his heirs; or to the heirs of his body; according to the apparent purport of the grant. And such ulterior limitation would in fact be a contingent remainder to them, if the previous life estate had been limited, not to A. himself, but to another person. By the effect, however, of the rule which we are considering, the heirs or heirs of the body of A., will not take in remainder, (in the case supposed,) nor will A. himself take a mere life estate, but a remainder also in fee or tail; and as that remainder will absorb, according to the law of merger(m), his life interest, the result upon the whole conveyance will be to give him an estate in fee (or in tail, as the case may be) in possession. And upon the same principle, if another particular estate, by way of vested remainder upon A.'s life estate (for example, a life estate to B.) be interposed before the ulterior limitation to A.'s heirs, or the heirs of his body, that ulterior limitation will take effect in A. himself; but as a vested remainder only in fee or tail, because the intervening estate will in that case prevent a merger. If the estate interposed, indeed, be not a vested but a contingent remainder, A. will take (as in the case first supposed) the entire fee; for while the contingency is in suspense, there is nothing to prevent the consolidation of his life estate with the ulterior limitation to his heirs; (m) Vide sup. p. 322.

(k) Vide sup. p. 238. (1) Vide sup. p. 247.

yet he takes it sub modo only, and in such manner that it will open and let in the intermediate estate when the contingency happens (n).

It is to be observed, that the interest which, by the effect of this rule passes to the ancestor, is of a kind very different from that which would belong to him if the words were to receive their more obvious construction. According to the rule, he becomes, in the first case we have supposed, proprietor of the whole fee, which it is consequently in his power to aliene at his pleasure (subject, where the estate is in tail, to the ordinary restrictions); and in the two other cases, his interest is of the same description, except as regards the intervening estates: while, on the other hand, if he took an estate for life only (though with remainder to his heirs), he could aliene for no longer period than his own life, and he would have no control over the inheritance.

With respect to the reason of the rule, it is involved in much obscurity (o). But according to the prevalent opinion, it was established with a view to the protection of the feudal lord, who would have been defrauded, it is said, of his wardship and other perquisites, if the heir had been allowed to take by way of remainder, and not by hereditary succession. And the argument by which it is best supported seems to be in substance as follows: that where by the same conveyance land is given to a person for his life, and afterwards to the heirs of the same person, it is reasonable to presume that he is himself intended in both cases as the sole object of the gift; and that no benefit is designed to his heirs, except what they may derive by operation of law from his own antecedent seisin.

We shall conclude this chapter with notice of a legislative provision which applies alike to estates in remainder

(n) Fearne, by Butler, 29, 9th ed.; Lewis Bowles's case, 11 Rep. 79 b. (0) See Fearne, by Butler, 83, 9th ed.; argument of Mr. Justice Black

stone in the case of Perrin v. Blake, in Hargrave's Law Tracts; Reeves's Hist. Eng. Law, vol. iii. p. 8.

and to those in reversion. [In order to assist such persons as have any estate in remainder, reversion, or expectancy after the death of others, against fraudulent concealment of their deaths, it is enacted by the statute 6 Anne, c. 18, that all persons on whose lives any lands or tenements are holden shall (upon application to the Court of Chancery and order made thereupon) once in every year, if required, be produced to the court or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements till the party shall appear to be living (p).]

(p) See Ex parte Grant, 6 Ves. 512; Ex parte Whalley, 4 Russ.

561; Re Isaac, 4 Myl. & Cr. 11; Re Lingen, 12 Sim. 104.

CHAPTER VIII.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON.

[WE come now to treat of estates, with respect to the number and connection of their owners, the tenants who occupy and hold them (a). And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in coparcenary, and in common.

I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort,] unless the contrary is expressed; [and in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. We shall therefore proceed to consider the other three species of estate, in which there are always a plurality of tenants.]

All the three last-mentioned species of estate have this common characteristic,-that the tenants hold pro indi

(a) Vide sup. p. 235.