fact that words which would otherwise involve an application of the rule are used in the declaration of trust.174

§ 182. The rule not one of construction.

In determining whether the rule is in any particular case to be applied so as to give an estate in fee or in tail to the ancestor, the first question to be determined is whether the remainder is to the heirs of A., which is purely a question of construction, and herein lies the chief difficulty in regard to the application of the rule. Other words, such as "children" or "issue," may have the meaning, in a devise, of the word "heirs," or "heirs of the body," and in such case the rule will apply; and the same is true in the case of deeds where the use of the word "heirs," in order to create an estate of inheritance, has been dispensed with.175 On the other hand, when the word "heirs" or "heirs of the body," in the limitation of the remainder, have, in view of the context, the meaning of "children,” or are otherwise intended to designate certain individuals merely, the rule does not apply.17

The fact that to the word "heirs" or "heirs of the body" in the limitation of the remainder there is added a further lim

174 Papillon v. Voice, 2 P. Wms. 471, 5 Gray's Cas. 95; Trevor v. Trevor, 5 Brown, Parl. Cas. 122; 1 Perry, Trusts, § 359; Green v. Green, 23 Wall. (U. S.) 486. See ante, § 96.

175 2 Jarman, Wills, 1184 et seq.; Jordan v. Adams, 9 C. B. (N. S.) 483, 5 Gray's Cas. 107; Doe d. Dodson v. Grew, 2 Wils. 322, 5 Gray's Cas. 96; Roddy v. Fitzgerald, 6 H. L. Cas. 823.

The word "issue" has the meaning and effect of the phrase "heirs of the body" in this connection, unless a contrary intention appear. Roddy v. Fitzgerald, 6 H. L. Cas. 823; Allen v. Craft, 109 Ind. 476, 58 Am. Rep. 425; Grimes v. Shirk, 169 Pa. St. 74; Dickson v. Satterfield, 53 Md. 317.

176 2 Jarman, Wills, 1184, 1205 et seq.; Archer's Case, 1 Coke, 66b, 5 Gray's Cas. 46; Van Grutten v. Foxwell [1897] App. Cas. 658; Cowell V. Hicks (N. J. Ch.) 30 Atl. 1091; Kuntzleman's Trust Estate, 136 Pa. St. 142, 20 Am. St. Rep. 909; Martling v. Martling, 55 N. J. Eq. 771; Campbell V. Noble, 110 Ala. 382; Granger v. Granger, 147 Ind. 95.

itation to "their" heirs does not affect the application of the rule as showing that the previous word or words were used to designate particular individuals only.177 Nor will the application of the rule be affected by the addition to "heirs" or "heirs of the body" of words indicating that they are to take concurrently or distributively, as that they shall take "share and share alike,"178 or that the property shall "be equally divided between them,"179 "179 or that they shall take in the proportions which the ancestor may appoint, 180 these words not showing that the words of inheritance are to be construed as meaning children or some particular individuals.

Though the meaning of the words used to describe donees of the estate in remainder is a matter to be settled by construction, the rule itself is in no way a rule of construction, but takes effect regardless of the donor's intention, and frequently in direct contravention thereof.181 As stated by a distinguished

177 2 Jarman, Wills, 1205; Fearne, Cont. Rem. 181; Challis, Real Prop. 134; Andrews v. Lowthrop, 17 R. I. 60. Contra, De Vaughn v. Hutchinson, 165 U. S. 566, applying the Maryland law as presented in Shreve v. Shreve, 43 Md. 382.

But if the limitation in remainder is to the "heir" or "heir of the body," in the singular number, with words of limitation added, as "to the heir male and to the heirs male of the body of such heir male," the word "heir" is one of purchase, and the rule does not apply. 1 Leake, 359; Archer's Case, 1 Coke, 66b, 5 Gray's Cas. 46.

178 Jesson v. Wright, 2 Bligh, 1, 5 Gray's Cas. 101; Sims v. Georgetown College, 1 App. D. C. 72.

179 Clarke v. Smith, 49 Md. 106; Cockin's Appeal, 111 Pa. St. 26; Moore v. Brooks, 12 Grat. (Va.) 135; Cooper v. Cooper, 6 R. I. 261; Crockett v. Robinson, 46 N. H. 454; Holt v. Pickett, 111 Ala. 362; Simms v. Buist, 52 S. C. 554. But occasionally these words have been regarded as indicating that words "heirs" or "heirs of the body" were not to be taken in their technical sense. Jenkins v. Jenkins, 96 N. C. 254; Herring v. Rogers, 30 Ga. 615.

180 Jesson v. Wright, 2 Bligh, 1, 5 Gray's Cas. 101; Roddy v. Fitz gerald, 6 H. L. Cas. 823; Jordan v. Adams, 9 C. B. (N. S.) 483, 5 Gray's Cas. 107.

181 Van Grutten v. Foxwell [1897] App. Cas. 658; Hileman v. Bouslaugh, 13 Pa. St. 344, 53 Am. Dec. 475; Grimes v. Shirk, 169 Pa. St.

English judge, it having been settled, on construction of the instrument, that the persons to whom the remainder is given are the heirs of the ancestor, whether they are or are not so termed, then the rule in Shelley's Case is imperative, and no incident superadded to the estate for life, however clearly showing that an estate for life merely, and not an estate of inheritance, was intended to be given to the first donee, nor any modification of the estate given to the heirs, however plainly inconsistent with an estate of inheritance, nor any declaration, however express or emphatic, of the grantov or testator, can, either by inference or by the force of express direction, affect in any way the operation of the rule as creating an estate in fee or in tail in the ancestor.1

182

Thus, the rule will apply though the donor superadd to the estate for life some incident of an estate of inheritance, such as unimpeachability for waste, which would be superfluous if an estate of inheritance was intended,183 or he declare in express terms that his intention in creating the estate for life is that the donee thereof shall not be able to dispose of his estate

74; Carpenter v. Van Olinder, 127 Ill. 42, 11 Am. St. Rep. 92; Brant v. Gelston, 2 Johns. Cas. (N. Y.) 384; Polk v. Faris, 9 Yerg. (Tenn.) 209, 30 Am. Dec. 400; Allen v. Craft, 109 Ind. 476: 58 Am. Rep. 425; Crockett v. Robinson, 46 N. H. 461; Hughes v. Nicklas, 70 Md. 484, 14 Am. St. Rep. 377; Trumbull v. Trumbull, 149 Mass. 200; Daniel v. Whartenby, 17 Wall. (U. S.) 639; Nichols v. Gladden, 117 N. C. 497; Brown v. Bryant, 17 Tex. Civ. App. 454; Lippincott v. Davis, 59 N. J. Law, 241; Silva v. Hopkinson, 158 Ill. 386; Martling v. Mart ling, 55 N. J. Eq. 771.

Occasionally the rule has been regarded as one of construction. Smith v. Hastings, 29 Vt. 240; Earnhart v. Earnhart, 127 Ind. 397, 22 Am. St. Rep. 652; Wescott v. Binford, 104 Iowa, 645.

To the same effect are Loring v. Eliot, 16 Gray (Mass.) 568, and Howell v. Knight, 100 N. C. 254, which are, however, overruled in this respect by later decisions.

182 Cockburn, C. J., in Jordan ▼. Adams, 9 C. B. (N. S.) 483, 5 Gray's Cas. 107.

188 Papillon v. Voice, 2 P. Wms. 471, 5 Gray's Cas. 95; Langley v. Baldwin, 1 Eq. Cas. Abr. 185, pl. 29, 5 Gray's Cas. 94.

for longer than his life;184 or that it is his "will and meaning" that the first donee shall have only an estate for life, and that she shall not have power to defeat his intent and meaning in this respect.185

§ 133. Abolition of the rule.

By statute in a considerable number of states, the rule in Shelley's Case has been abolished, and, where this is the case, the ancestor will take a life estate with a contingent remainder to his heirs, 186 In other states it remains in full force,181

184 Perrin v. Blake, 4 Burrow, 2579, 1 W. Bl. 672, 5 Gray's Cas. 98, and note; 6 Cruise, Dig. tit. 38, c. 14, §§ 70, 71.

188 Doe d. Thong v. Bedford, 4 Maule & S. 362, 5 Gray's Cas. 99. See Jordan v. Adams, 9 C. B. (N. S.) 483, 5 Gray's Cas. 107.

186 1 Stimson's Am. St. Law, § 1406. See Trumbull v. Trumbull, 143 Mass. 200; Wilson v. Alston, 122 Ala. 630; Barnett v. Barnett, 104 Cal. 298.

As to the desirability of the abrogation of the rule, there are conflicting opinions, but it seems proper to note that the objection to the rule usually made, that it defeats the intention of the testator or grantor, is by no means conclusive in favor of its abolition, since the same may be said of the rule against perpetuities, and the statutes modifying and abolishing estates tail. In fact, this objection to the rule, thus stated, seems to involve the erroneous view of the rule as one of construction. The question really is, as in the case of other rules of law, whether public policy renders the abrogation of the rule desirable, and in deciding this question the fact that it defeats the intention is to be considered. On the other hand is to be considered the fact that the rule does, as stated by Sir Wm. Blackstone, tend 'to throw the land into commerce one generation sooner, and this is in accord with the modern policy of the courts and the legislature. There seems, on the whole, no particular injustice in requiring one who desires to limit land to another for life, and, after his death, to that indefinite class known as the "heirs" or "heirs of the body" of such other, to do it by the creation of an estate in fee simple or in fee tail in the ancestor, which the ancestor can dispose of, and not by way of an estate for life, and a remainder, which cannot be disposed of till the death of the ancestor. If the rule applied in the case of a re mainder to children or other ascertained persons, the question as to the desirability of its abolition would, of course, be very different.

though of course a remainder to the heirs of the body of the first taker will, where estates tail are changed into estates in fee simple,188 or otherwise modified,189 create, not an estate tail, but an estate or estates of the modified character.

V. EXECUTORY INTERESTS.

An executory interest in land is an interest created by such a limitation of an estate to arise in the future, at a time or on a contingency named, as would be invalid at common law, because not capable of taking effect by way of remainder, but which is valid if created by a conveyance to uses or by will. The limitation by which it is created is termed an "executory limitation."

An executory limitation usually, if not always, takes effect in derogation of an estate in fee simple in the creator of the limitation or his heirs, or in derogation of an estate simultaneously limited to another person.

An executory limitation of an estate to arise in the future cannot be defeated by the tenant of the previous estate otherwise than by the prevention of the contingency on which the future estate is to arise.

Limitations of estates will, if possible, be construed as creating present vested estates, rather than executory interests.

Limitations of future estates will always take effect, if possible, by way of remainder, rather than as executory limitations.

187 As instances of the application of the rule, the following cases may be referred to: Hileman v. Bouslaugh, 13 Pa. St. 351, 53 Am. Dec. 474; Starnes v. Hill, 112 N. C. 1; Hurst v. Wilson, 89 Tenn. 270: Taney v. Fahnley, 126 Ind. 88, Finch's Cas. 519; Reutter v. McCall, 192 Pa. St. 77; Simms v. Buist, 52 S. C. 554; Nichols v. Gladden, 117 N. C. 497; Hardage v. Stroope, 58 Ark. 303; Pressgrove v. Comfort, 58 Miss. 644.

188 Shoup v. De Long, 190 Pa. St. 331; Chamblee v. Broughton, 120 N. C. 170.

189 Clarkson v. Clarkson, 125 Mo. 381.

In South Carolina, a remainder to the heirs of the body of the first taker creates a common-law conditional fee. Simms v. Buist, 52 S. 0.554.