feoffee hath no reversion, but in nature of a remainder, albeit the feoffor have the estate tail executed in him by the statute, and the feoffee is in by the common law, which is worthy of observation. 23 a. On ferment to uses without consideration, the use undisposed of 28 H. 8. Dier 12. (3 Co. 81 b. Cro. Jam. 201. Post, 271 b.) To conclude this point, (m) whosoever is seised of land, hath not only the estate of the land in him, but the right to take profits, which is in nature of the use, and therefore when he makes a feoffient in fee without valuable consideration to divers particular uses, so much of the use as he disposeth not, is in him as his ancient use in point of reverter. As if a man be seised of two acres, the one holden by knight-service by priority, and the other by knightservice holden by posteriority, and maketh a feoffment in fee of both acres to the use of himself and his heirs, the old use continues in him, and the priority and posteriority re main. So it is of lands of the part of the mother, the use E. 4. 7. 1 Co. 76. shall go to the heir of the part of the mother, which 84. 85. 100, &c. Chudley. 2 Co. 56, could not be, if it were not the old use, but a thing newly 57. 58. 77. 78. created. The like law of lands of the custom of borough English, gavelkind, &c. (9). By section 719, it appeareth, that (n) whensoever the ancestor taketh any estate of freehold, a limitation after in the same conveyance to any of his heirs, are words of limitation, and not of purchase, albeit in words it be limited by way of remainder (P); and therefore (if land be given to a (9) See further on this subject the several books cited post, 12 b. in n. 2. to which add Prec. in Chia. 22. 319. and Plowd. 545. and note f. in the English translation of Plowden. It may be an useful bint to observe, that the English edition of Mr. Plowden's Commentaries, which most deservedly bear as high a character as any book of (P) The rule mentioned in the text is usually called, the rule in Shelley's case. As this rule is intimately connected with the doctrine contained in the present chapter, it may be desirable in this place to consider the manner in which it is applied in the construction,-ist. Of deeds; 2dly. Of surrenders of copyholds; and Sdly. Of devises. 1st. Of the application of the rule in Shelley's case in the construction of deeds. Where an estate was conveyed to A. for life, remainder to the heirs, or 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 remainder to the heirs, &c. of A. would have been considered as words of purchase, giving a contingent remainder to the heirs, &c. of A., according to the rule of law, that nemo est hæres 5 4 Co. 22. & Co. S 43. 376b. takes an estate of freehold, a limitation after, And where the ancestor in the sume conreyance, to his heirs, vests in (n)24E. 3. 36. 27 E. S. 628.) 1 H. 6. 4. 11 H. 6. 13. 14. 28 H. 6. man, and to the heirs male of his body begotten, and for Devise 18. Statham. default of such issue, the remainder thereof to his heirs se Devise Pl. Com. 414. 20 H. 6. 43. Vid. virentis; but such a construction would have been attended with these inconveniences: 1st. The lord of the fee would have been deprived of the wardship and marriage of the heir, because, in that case, the heir would have taken as a purchaser, without claiming any thing from his ancestor by descent. 2dly. The remainder to the heirs, or heirs of the body, being contingent until the death of the tenant for life, the inhe ritance would have been in suspension or abeyance which was never allowed but in cases of absolute necessity; because the abeyance of the inheritance created a suspension of various operations of law, particularly of the remedies for the recovery of lands by real actions. And Sdly. if the remainder, in those cases, had been construed to be contingent, no alienation could have taken place in the life-time of the ancestor. To obviate which inconveniences, was the origin of the rule of law, laid down in Shelley's case, viz. 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." 1 Co. 104 a. Whence it follows, that such remainder is immediately executed in possession, in the ancestor so taking the freehold, and is not contingent or in abeyance. Bl. Arg. Harg. Tracts, 498. 510. 4 Cru. Dig. 470, 1. Serjeant Rolle, indeed, takes 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 he can have no heir to take the remainder. 2 Rol. Abr. 418. But Mr. Fearne has controverted this distinction, and shewn that the possibility of the freehold's determining in the life-time of the ancestor, who takes it, does not prevent the subsequent limitation to his heirs from attaching in himself. Fearn. Cont. Rem. 32. Et vid. Curtis v. Price, 12 Ves. 89. With respect to the mode in which mediate limitations are vested, it is observable, that where the subsequent limitation is immediate, it then becomes executed in the ancestor, forming by its union with his particular freehold one estate of inheritance in possession: but where such limitation is mediate, it is then a remainder vested in the ancestor, who takes the freehold, not to be executed in possession, until the determination of the preceding mesne estates. Fearn. Cont. Rem. 58. And where the limitations intervening between the first estate for life, and the limitation to the heirs of the body, are contingent, the estate for life is not merged, because the intervening limitations would be thereby destroyed; but the two limitations are united and executed in the ancestor only, until such time as the intervening limitations become vested; and then open and become separated, in order to admit such intervening limitations as they arise. Laris Bowles's case, 11 Co. 79. Fearn. Cont. Rem. 42. With regard to joint and several limitations, Mr. Fearne observes, that where there is a joint limitation of the freehold to several, followed by a joint limitation of the inheritance in fee-simple to them; as an estate to A. 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 them jointly. Fearn. Cont. Rem. 40. Ante, vol. 1. p. 744, n. (N). And so if the limitation of the freehold be to baron and feme jointly, remainder to the heirs of their bodies, it is an estate-tail executed in them; as they are capable of issue, to whom such joint inheritance can descend. Brook. Estate, p. 75. But if the limitation of the freehold be not joint, but successive, as to one for life, remainder to the other for life, remainder to the heirs of their bodies; there it seems the ultimate limitation is not executed in possession, but gives them a joint remainder in tail. Stephens v. Bretridge, T. Raym. 36. 1 Lev. 36. And if the limitation of the inheritance be to several men, or to several women in tail, instead of fee-simple, though the freehold be to them jointly, they take several estates of inheritance; because they cannot have issue between or among them as a man and woman may. Ant. 182 b. vol. 1. p. 741, 2. And the same rule extends to other cases, where the relative situations of the grantees render the possibility of issue between or male of his body begotten) here the remainder, to the heirs female, vesteth in the tenant in tail himself. And it is good. among them more remote than what is termed a simple or common possibility, or else is inconsistent with the laws of marriage. Fearn. Cont. Rem. 41. Ant. vol. 1. p. 317. n. (D). Where the particular estate is limited to A. with remainder to the heirs of A. and B. this is a contingent remainder, and not a vested estate. 2 T. R. 435. 2 Bl. Rep. 731. So if there be a limitation to the wife for life, remainder to the heirs of the body of the husband and wife, this is no remainder in the wife, for the freehold is limited to her alone; and as the person who is to take in remainder must be heir of both their bodies, if the wife should die before the husband, there can be no one to answer that description when the particular estate determines, because the baron cannot have an heir during his life, nor could it be involved or flow into the limitation to the feme herself, as not being confined to her own heirs; therefore the remainder is in contingency. 2 Rol. Abr. 417. Cases of the last mentioned class are distinguishable from those cases, where the limitation to the heirs is held to vest, notwithstanding the ancestor's freehold may determine in his life-time; for there the limitation is to the heirs of the body, of the ancestor only; but here it is to the heirs of the body, of the ancestor and of her baron; and though every person may so far be supposed to carry his own heirs in himself during his life, as that a limitation to them where he takes a preceding freehold may vest in himself, supra, 22 b. ; yet no person can be supposed to include in himself the heirs of himself, and of somebody else. Fearn. Cont. Rem. 44, 45. But where the particular estate is granted to two persons, with a limitation to the heirs or heirs of the body of one of them, the inheritance is executed in the person to whose heirs it is limited. Alpass v. Watkins, 8 T. R. 516. Limitations of this kind are said to be executed sub modo, that is, to some purposes, though not to all; for though they are so far executed in, or blended with the possession, as not to be grantable away from, or without the freehold, by way ef remainder; yet they are not so executed in possession as to sever the jointure, or entitle the wife of the person so taking the inheritance to dower. Ant. 184 a. vol. 1. p. 746; and see the books cited in n. (56) there. The rule in Shelley's case, however, does not apply where the ancestor takes only an estate for years (another person being the grantor); for, in such case, a remainder to his heirs, or to the heirs of his body, will not vest in himself, but in such heirs, by purchase. Post, 319 b. Sir C. Tippin's case, cited 1 P. Wms. $59. Neither will it take place, unless the particular estate of freehold, and the remainder to the heir or heirs of the body, are created by the same conveyance. Cranmer's case, 2 Leon. 57. Moor v. Parker, 1 Ld. Raym. 37. Vern. 486. Doe v. Fonnereau, Dougl. 487.510. Venables v. Morris, 7 T. R. 342. Fearn. Cont. Rem. 99. But as an appointment in pursuance of a power, when executed, is to be considered as if it had been inserted in the original deed by which the power of appointment was created, 7 T. R. 347; it seems, that where there is a limitation to a person for life by one deed, and the estate is afterwards limited to the heirs of his body, under an execution of a power of appointment contained in that deed, in such case the several limitations will consolidate. Fearn. Cont. Rem. 102. Prest. Ess. on Rule in Shelley's case, 57. And it is immaterial, with respect to this rule, whether the ancestor takes the freehold by express limitation, or by implication arising from the deed in which the estate is limited to his heirs, &c.: in either case the subsequent limitation vests in himself. Pybus v. Mitford, 1 Ventr. 372. It may be further observed, that the rule in question is only applied to limitations in which the word "heirs" is used, on account of the pecu liar signification of that word, and the maxim that nemo est hæres viventis; so that if lands are limited to A. for life, remainder to his first and other sons and the heirs of their bodies; or remainder to the child and children of A., or to the issue of A. and the heirs of their bodies; no more than an estate for life will vest in A., and the words son, child, or issue, will operate as words of purchase. Lewis Bowles's case, 11 Co. 30. And the rule does not extend to the word "heir" in the singular number, with words of limitation superadded. Walker v. Snow, Palm. 359. Nor where the estates are of different natures, as if the first limitation only gives a trust estate of free VOL. II. L * 877a. to be known, that for learning sake, and to find out the reason of the law, these limitations to the heirs male of hold, and the subsequent limitation to the heirs of the body carries the legal estate. Lord Say and Sele v. Jones, 3 Bro. P. C. 113. Nor to cases of marriage articles; which being executory are construed according to the intention of the parties, whose chief object in such agreement, is to make a provision for the issue of the marriage: therefore where in marriage articles it is agreed to settle lands, to the use of the husband for life, with remainder to the heirs of his body, these last words are construed to be words of purchase, and to mean the first and other sons of the marriage, and the heirs of their bodies. 1 Bro. C. C. 229. Trevor v. Trevor, i P. Wms. 662. 1 Ab. Eq.387. Cusack v. Cusack, 1 Bro. P. C. 470. And where articles and a settlement are made before marriage, and the settlement is made in pursuance of the articles, if the words "heirs of the body" are transcribed from the articles into the settlement, they will be altered in chancery, and the settlement will be rectified according to the intention of the articles, by making the husband only tenant for life, with remainders to the issue of the marriage. West v. Erissey, 2 P. Wms. 349. 3 Bro. P. C. 327. 1 Collect. Jur. 463. Hurt v. Middlehurst, 3 Atk. 371. Roberts v. Kingsley, 1 Ves. 238. So if the settlement is made after the marriage, and adopts the words of the articles. Streatfield v. Streatfield, Forrest. 176. But this doctrine is adopted only in cases of marriage articles, and is not extended to limitations, in settlements, of the legal estate. Alpass v. Watkins, 8 T. R. 516. And, although where articles are entered into before marriage, and a settlement is made after marriage different from those articles, the court will set up the articles against the settlement; yet, where both the articles and settlement are previous to the marriage, at a time when all the parties are at liberty, and the settlement is not expressed to be made in pursuance of the marriage articles (as in the above cited case of West and Erissey), if such settlement differ from the articles, it will be considered as founded on a new agreement between them, and will control the articles. Legg v. Goldwire, Cas. Temp. Talb. 20. Fearn. Cont. Rem. 154. 4 Cru. Dig. 487. The rule, in Shelley's case, has been adopted in the construction of assignments of terms for years; and the words “heirs of the body” have been held to be words of limitation, Peacock v. Spocner, 2 Vern. 43. 195. Webb v. Webb, 1 P. Wms. 132. Hayter v. Rod, 1 P. Wms. 360. 2 Ves.660. Theebridge v. Kilburne, 2 Ves. 233: though the construction has been different where there were words of limitation superadded to the words "heirs of the body." Archer's case, 1 Co. 66. Hodsol v. Bussey, Forrest. MSS. S. C. 2 Atk. 89. Barnard. 199. Price v. Price, 2 Ves. 234. Sands v. Dixwell, 2 Ves. 652. 2dly. Of the application of the rule in Shelley's case, in the construc. tion of surrenders of copy holds :-The rule under consideration, is equally applied in construing surrenders of copyhold estates as in deeds; and therefore where a person surrenders to the use of himself for life, remainder to another in tail, remainder to his own right heirs, there the heirs shall take by descent. Gilb. Ten. 270. Fearn. Cont. Rem. 79. Allen v. Palmer, 1 Leon. 101. Roe v. Aistrop, 2 Bl. Rep. 1228. And Mr. Fearne observes, that where an estate for life is limited either to the father or mother only, and the subsequent limitation is to the heirs of both their bodies, the construction is the same in regard to copyholds as to freeholds; viz. the subsequent limitation does not vest in the ancestor taking the estate for life, but is a contingent remainder to the heirs of the bodies of both father and mother. Lune v. Pannel, 1 Rol. Rep. 238. Frogmerton v. Wharrey, 2 Bl. Rep. 728. In Lane v. Pannel, Lord Coke took a distinction between a limitation upon a surrender by a copyholder in fee to his own heirs general where he takes a preceding estate of freeHold himself, and the like limitation where he takes no preceding freehold estate; a distinction which certainly has no place in respect of freehold lands; for in freeholds, we have seen, where the estate moves from the grantor, the ultimate limitation to his heirs general, though the ancestor takes ao preceding freehold, will be a reversion in him, and part of the old estate, and the heir will take it by descent; but Lord Coke held, that where a person surrendered a copyhold to the use of himself for life, remainder to another in tail, remainder to the right heirs of the surrenderor, there the heirs should have it by desceut; but otherwise, where the surrenderor the body, and after to the heirs female of the body, may be put but it is dangerous to use them in conveyances, for had not an estate for life or in tail limited to him; for then his heir should enter as a purchaser, as if such use had been limited to the right heirs of a stranger. But Mr. Fearne observes, that the only ground npon which he could account for Lord Coke's opinion, is, the supposition that an entire new estate was created and derived under the uses of the surreader, throughout the whole of them, and that no estate taken under those uses is any part of the old estate, Fearn. Cont. Rem. 87: and this notion has been entirely exploded by modern decisions. See Gilb. Ten. 272. Koe v. Griffiths, 4 Burr. 1952. * Thrustout, d. Gower v. Cunningham, 2 Bl. Rep. 1046. Fearn. Cont. Rem. 90. 3d. Of the application of the rule in construing devises :-The rule now under consideration having been established for purposes of general utility, it has been adopted in the construction of devises, as well as in that of deeds. But it being a principle of law, that the intention of the testator is to be the chief guide in construing wills; it has been often doubted how far the application of this rule should be extended, in contradiction to the intention of the testator. Fearn. Cont. Rem. 290. 299. It has, however, been uniformly applied to devises of legal estates, Rundale v. Eley, Cart. 170; although it appeared from other circumstances, besides an express devise for life, that the testator did not intend to give the first devisee a greater estate; such as a power to settie a jointure, with the concurrence of trustees; or an interposed estate to trustees to preserve contingent remainders; or a clause, that the devisee's estate should be without impeachment of waste. Broughton v. Langley, 2 Ld. Raym. 273. Papillon v. Voice, 2 P. Wms. 471. Sayer v. Masterman, Fearn. Cout. Rem. 250. Ambl. 344. Blandford v. Applin, 4 T. R. 82. Candler v. Smith, 7 T. R. 531. Cock v. Cooper, 1 East, 229. Pearson v. Vickers, 5 East, 548. Poole v. Poole, 3 Bos. & P. 627. Ant. vol. 1. p. 548. n. (N). So, although the limitation to the heirs be only mediate, yet the devisee will take an estate in fee or in tail, in remainder, to take effect in possession, upon the determination of the interposed estate; and the estate for life is not merged in the remainder. Coulson v. Coulson, 2 Atk. 247. Hodgson v. Ambrose, Dougl. 337. 3 Bro. P. C. 416. Thong v. Bedford, 1 Bro. C. C. 313. And the rule holds, although no estate for life is expressly devised, but arises by implication, Hayes v. Foord, 2 Bl. Rep. 698; and although the limitation be to the heir in the singular number. Burley's case, 1 Vent. 230. Wilkins v. Whiting, 1 Rol. Abr. 836. Bulstr. 219, 2 Vern. 324. Miller v. Seagrave, Rob. Gav. 96. Dubber v. Trollop, Rob. Gav. 96. Ambl. 453. Blackburn v. Stables, 2 Ves. & B. 371. devise to the heirs, or heirs of the body, of a prior devisee for life, with superadded words of limitation, will be construed within the rule in Shelley's case, Goodright v. Pullyn, 2 Ld. Raym. 1437. 2 Stra. 729. Legute v. Sewell, 1 P. Wms. 87. Morris v. Ward, 8 T. R. 518. 2 Burr. 1102. Denn, d. Webb v. Puckey, 5 T. R. 299: though there are some cases (which will be mentioned hereafter) in which a different construction prevails. The rule in question has also been applied to devises of trust estates, the construction of which is the same in the court of chancery, as it would be in a court of common law upon a devise of legal estate. Sweetapple v. Bindon, 2 Vern. 536. Fearn. Cont. Rem. 164. Bate v. Coleman, 2 Vern. 570. 1 P. Wms. 142. Garth v. Baldwin, 2 Ves. 646. Wright v, Pearson, Ambl. 358. Fearn. Cont. Rem. 187. Austen v. Taylor, Ambl. 376. Jones v. Morgan, 1 Bro. C. C. 206. And it takes place also in devises of copyhold estates, Lawsey v. Lowdell, 2 Rol. Abr. 253. pl. 4. Gilb. Ten. 270. Busby v. Greenslate, 1 Str. 445.; and in devises of terms for years though if there appears any other circumstance or clause in the will to shew the intention of the testator, that the words "heirs of his body," should be words of purchase. and not of limitation, then it seems the ancestor takes for life only, and his heir will take by purchase. Fearn, Ex. Dev. 300. 6 Cru. Dig. 344. And a The rule in Shelley's case, however, is not applied to devises, where the limitation is to sons or children, 1 Rol. Abr. 837. pl. 13. Ginger v. White, Willes, 348. Goodtitle v. Woodhall, Willes, 592. Goodright v. Dunham, Dougl. 264.; or where words of explanation are added to the word "heirs," from whence it may be collected that the testator meant to qualify the meaning of the word "heirs,” and not to use it in its techuical sense, |