STAFF . STAFF.

The item whose construction is sought, with a change in the number of the item, the name of the devisee and her place of residence, is in these words:

"I give, devise and bequeath unto my daughter, Anna E., "wife of Fred S. Staff, of Franklin, Indiana, one full share "to her own sole and separate use during her natural life, and "at her death, to the heirs of her body in fee simple."

Mr. Wm. G. Whipple, for plaintiffs.

Mr. Francis Johnson, for defendants.

THE CHANCELLOR:

The children of Dr. Dodge, who are complainants, insist that a proper construction of the items of the will in which their names appear will be to declare that they vest in them fee simple estates in the property, it all being realty; and in this behalf they argue that the rule in Shelley's case having been declared by the Supreme Court to be in force in this State, under it the fee in the property, by the terms of the will in controversy, was vested in Mrs. Staff and her sisters who join as plaintiffs.

The infant defendants, by their guardian ad litem, contend that their mothers, under the will, will take only life. estates, and that they take the remainders in fee.

The proper determination of this issue involves a consideration only of the legal effect, under the laws of this State, of the language employed in the will; and it involves, necessarily, an examination and determination of what effect, if Rule in Shelley's any, certain statutes enacted in this State and case-History of. the Missouri Territory have had in modifying the rule in Shelley's case-a rule which has been the subject of much comment, and, in the United States, of some adverse criticism (notably in the address of Hon. Lyman Trumbull before the Illinois State Bar Association, delivered in 1893). It has also been the subject of high commendation by a large number of English and American jurists.

STAFF v. STAFF.

As to the origin of this rule there has been much speculation, and divers reasons have been assigned therefor. Shelley's case was determined in the twenty-third year of the reign of Queen Elizabeth, the last of the Tudor sovereigns, upon the authority, it is claimed by some, of a number of cases in certain books of reports published in a regular series from the reign of Edward II to the time of Henry VIII, which were taken by the chief scribes of the court, at the expense of the crown, and published annually, and called the "Year Books."

Confessedly the rule is not and never was a means to discover and enforce the intention of the grantor or testator; and whether or not it was one devised by the judges who tried the cause "to facilitate the alienation of land and to throw it back into the track of commerce one generation sooner than if the ancestor were regarded as only a tenant for life, and the heir as the purchaser of the inheritance," as was contended by Mr. Justice Blackstone in his famous argument in the case of Perrin v. Blake, in the Exchequer Chamber1; or whether it may be imputed to principles and policies deducible from old feudal tenures, to prevent frauds upon the feudal lords; or whether it was designed to preserve the marked distinction. between descent and purchase and prevent title by descent from being stripped of its proper incidents and disguised with the qualities of a purchase, is a matter of little concern, save as a piece of juridical history, illustrating in its time what was deemed the necessity for judge-made law.

1. Estates tail

Now, while we are wont to speak of an estate tail at the common law, the fact is that from the time of Origin and history. the ancient Britons, the aborigines of the British Island, to the time when the West Saxons had swallowed up all the rest and King Alfred succeeded to the monarchy of England, founded by Egbert, his grandfather, such a number of nations-the Romans, the Picts, and the various clans of Danes and Saxons had invaded and virtually destroyed most of the purely British

(1.) 4 Burr., 25. 79.

STAFF v. STAFF.

Same- Common

institutions and created such a thorough confusion of custems and laws that it is impossible, through the tangled mass thus created, to trace what was contained in law-Relation of that small body of laws which, strictly speakestates tail to. ing, constitute the common law. It is certain, however, that, while a conditional fee was an estate known to the common law proper, such an estate as an estate tail, of any kind, never existed until it was created by the statute de donis conditionalibus, in the thirteenth year of Edward I, of the Norman line of kings.

Sir William Blackstone, after stating that a conditional fee was, at common law, “a fee restrained to some particular heirs exclusive of others, * * * as the heirs of a man's body by which only his lineal descendants were admitted, in exclusion of collateral heirs," says:

"The inconveniences which attended these limited and fettered inheritances were probably what induced the judges to give way to this subtle finesse of construction (for such it undoubtedly was), in order to shorten the duration of these conditional estates. But on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the Second (commonly called the statute de donis conditionalibus) to be made; which paid a greater regard to the private will and intentions of the donor than to the propriety of such intentions, or any public considerations whatsoever. This statute revived in some sort the ancient feudal restraints which were originally laid on alienations, by enacting, that from henceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor."

"Upon the construction of this act of Parliament, the judges determined that the donee had no longer a conditional fee simple, which became absolute and at his own disposal

STAFF v. STAFF.

the instant any issue was born; but they divided the estate into two parts, leaving in the donee a new kind of a particular estate, which they denominated a fee tail; and investing in the donor the ultimate fee simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion. And hence it is that Littleton tells us that tenant in fee tail is by virtue of the statute of Westminster the Second."2

Judge Washburn, in his work on real property, having explained that the word tenementum, as used in the statute de donis, not only embraced corporeal hereditaments, but incorporeal also which issue out of, or are annexed to, those which are corporeal, says: "The statute de donis was regarded by the courts as a remedial one, and instead of confining it to the precise cases enumerated in it, they regarded these as put by way of example. And the effect of it was to introduce a new class of estates or give a different quality to an old one. It was considered as designed to preserve the property and maintain the grandeur of existing powerful families, by securing to owners of estates liberty to dispose of such parts thereof as came under the denomination of tenements, in such manner and by such an order of succession as their own inclination or ingenuity might devise."3

It may be conceded that at common law, in its narrow, contracted sense, the terms of a will like the one under consideration would have vested the fee in the lands in Mrs. Staff, Mrs. Kidder, and Mrs. Gray (issue being shown).4 But the statute of Westminster the Second changed the rule 1. Meaning of and created in them estates tail general, a species of estate, as we have seen, unknown It was evidently the inten

"common law.”

prior to that act of Parliament.

(2.) 2 Bl., Comm., 110, 112.

(3.) 1 Washburn, Real Prop., 100, * 69, citing 2 Bl., Comm.. 116; 2 Prest. Est., 453. See also Bacon's Abr., vol. 3, Estate Tail, "C" and "D": Lessee of Baughman v. Baughman, 2 Yeates (Pa.), 410; Barlow v. Barlow, 2 N. Y., 386: Wight v. Thayer, 1 Gray, 281; Buxton v. Uxbridge, 10 Metc., 87; Pollock v. Speidel, 27 O. St., 86.

(4.) 2 Bl., Comm., 210.

STAFF r. STAFF.

tion of the lawmaking power of the Missouri Territory, out of which the State of Arkansas was carved, to exclude the idea of its adopting the common law in its strict sense, with its narrow scope as above explained, when the words “and all statutes of the British Parliament in aid of or to supply the defects of the common law, made prior to the fourth year of James I," were inserted in the statute hereinafter quoted.

Had not such been the intention, no reference to those acts of Parliament would have been made. And if the Missouri Territory, and afterwards the State of Arkansas, had not recognized a difference in the common law in its strict and limited sense, from the common law, as that term is now used, meaning the common law as modified by the earlier acts of Parliament, they would not have employed the language used.

Upon this subject, the Supreme Court of this State, by Mr. Justice Eakin, says:

"Although originally the common law consisted wholly of usages and maxims established in time so remote that the memory of man ran not to the contrary, and although this, strictly, is what is meant by the common law, yet with the importation of the feudal system, with its radical changes of the laws regulating lands, and with the necessary legislation which thereupon arose, the common law came in time to be commonly understood to mean that body of laws which had been modified by the feudal system and ancient statutes, and which was administered in the courts of law in contradistinction with that body of laws administered in courts of equity; and also with those recent statutory changes which had been made in the old common law, after the latter had been adopted, and for a long time obtained in the administration et justice by courts of common law."5

As early as 1816 there was enacted by the legislature of the Missouri Territory a statute as follows:

(5.) Horsley v. Hilburn, 44 Ark., 474.