was Bagshaw v. Spencer, before Lord Hardwicke, in 1748; and the most difficult one to surmount, because the one of the most point and authority against the innovation upon the rule, was Coulson v. Coulson, before the K. B., in 1744. Lord Mansfield denied, as he had done before in Doe v. Laming, that there was any solidity in the distinction between trusts executed and trusts executory; and

he held, that all trusts were executory, because a trust exe* 224 cuted was within the statute of uses. He insisted, also,* that there was no sense in the distinction between the trusts and the legal estate, and that courts of equity, as well as courts of law, were equally bound by a general rule of law. If he could have established these principles, he would have brought the decision in Bagshaw v. Spencer to bear upon the case with unqualified and imperative force. (a)

The minds of the court were well prepared for such a decision; for in Doe v. Laming, (b) which arose a few years *before in the K. B., Lord Mansfield had reasoned upon the rule and authorities in the same way, and in a still more

*225

(a) Lord Mansfield's opinion does not appear, upon the whole, to be equal to the occasion, or on a level with his fame. It is not to be compared, in research or ability, to that of Lord Hardwicke, in Bagshaw v. Spencer, and some of his reflections had a sarcastic allusion. "There are, and have been always," he observed, "lawyers of a different bent of genius, and of different course of education, who have chosen to adhere to the strict letter of the law; and they will say that Shelley's case is uncontrollable authority, and they will make a difference between trusts and legal estates, to the harassing of a suitor." Mr. Justice Yates, who dissented from the opinion of his brethren in this case, and in whose presence these words were pronounced, immediately resigned his seat as a judge, and was transferred to the C. B. He resigned, says Junius (Letter to Lord Mansfield), because, "after years of ineffectual resistance to the pernicious principles introduced by his lordship, and uniformly supported by his humble friends upon the bench, he determined to quit a court whose proceedings and decisions he could neither assent to with honor, nor oppose with success." But all this was monstrous exaggeration; and that celebrated and still unknown author was, in this instance, so far overcome by the malignity of his temper, and the bitterness of his invective, as to be utterly regardless of truth. Mr. Justice Yates had been associated with Lord Mansfield on a bench from January, 1764, to February, 1770; and with the exception of this case of Perrin v. Blake, and the great case of Miller v. Taylor, concerning copyright, there was no final difference of opinion in the court in any case, or upon any point whatsover. Every order, rule, judgment, and opinion, until the decision of the latter case, in April, 1769; had been unanimous. See 4 Burr. 2395, 2582. It was, however, greatly to the credit of Judge Yates's abilities as a lawyer, that in both of these cases in which he dissented from the decision of the K. B. and on very nice and debatable questions, the decisior w is reversed upon error. (b) 2 Burr. 1100.

elaborate manner, and he scrutinized most of the cases. The doctrine of the court was, that the rule in Shelley's case was to be adhered to as a rule of property, in all cases literally within it; but when circumstances took any case out of the letter of the rule, it was to be held subservient to the manifest intention, whether the limitation was created by deed or will.、

In the opinion of Mr. Justice Blackstone, in the Exchequer Chamber, upon the case of Perrin v. Blake, (a) he admitted that the rule in Shelley's case might be controlled by the manifest intention of the testator; and he has classified and given a very clear and comprehensive summary of the several cases which have created exceptions to the operation of the rule. He concurred in principle with the Court of K. B.; but he held, that in the case before him, the intent was not sufficiently clear and precise, and, therefore, he was for reversing the judgment. It was true that the testator meant that his son should only take a lifeestate; but it was not certain, he said, that the testator meant that the heirs of the body should take as purchasers, and, consequently, the rule must be left to operate. According to this opinion, two things must appear upon the face of the will: (1.) That the testator meant to confine the first taker to an estate for his life; and (2.) that he meant to effectuate that intent by some clear and intelligent expression of a design to have the heirs of his son take by purchase, and not by descent. This opinion has been much admired, as containing incontestable evidence of the skill and talents of its great author. But the premises and the conclusion do not appear to be very consistent. The argument admits that the intention of the testator will control the rule; and it would seem then naturally to follow, that when the testator explicitly declared that the son was not to have a power to sell * 226 and dispose of the estate for a longer time than his life, and to that intent gave him a life-estate, with an intervening contingent remainder, and then with remainder to the heirs of his body, that the words, heirs of the body, were not intended to operate to the destruction of that intent, so as to give the son a fee with the power to sell. The presumption that those technical words were intended to be used in a technical sense, was certainly rebutted, when that technical sense would inevitably destroy the testator's

(a) Harg. Law Tracts, 489.

*

declared intent, and confer upon the son, by the magical operation of attraction and merger, an estate tail, which the testator never intended.

The decision in Perrin v. Blake has called forth a series of essays upon the rule in Shelley's case, which have been distinguished for laborious learning, great talents, and free and liberal investigation. Mr. Hargrave, in his observations on the rule, is for giving it a most absolute and peremptory obligation. He considered that the rule was beyond the control of intention when a fit case for its application existed. It was a conclusion of law of irresistible efficacy, when the testator did not use the word "heirs," or "heirs of the body," in a special or restrictive sense, for any particular person or persons who should be the heir of the tenant for life at his death, and in that instance, inaptly denominated heir, and when he did not intend to break in upon, and disturb the line of descent from the ancestor, but used the word heirs as a nomen collectivum, for the whole line of inheritable blood. It is not, nor ought to be, in the power of a grantor or testator, to prescribe a different qualification to heirs from what the law prescribes, when they are to take in their character of heirs; and the rule, in its wisdom and policy, did not intend to leave it to the parties to decide what should be a descent, and what should be a purchase. The rule is absolute, (and this was the doctrine of Lord Thurlow, in Jones v. Morgan, (a) that whoever takes in the character * 227 of heir, must take in the quality of heir. All the efforts of the party to change the qualification, while he admits the character of heirs, by saying that they shall take as purchasers, or otherwise, are fruitless, and of no avail. The rule in Shelley's case, if applied to real property, enlarges the estate for life into an inheritance, and gives to the tenant for life the capacity of a tenant in fee, by which he can defeat the entail or strict settlement intended by the party. If the rule be applied to personal property, it makes the tenant for life absolute owner, instead of being a mere usufructuary, without any power over the property beyond the enjoyment of it for his life.

*

Mr. Fearne's essay on the rule in Shelley's case is in every view a spirited and masterly production; and it is confessedly the ground work of Mr. Preston's complicated analysis and long and painful,

(a) 1 Bro. C. C. 206.

but thorough discussion of the rule. (a) All the great property lawyers justly insist upon the necessity and importance of stable rules; and they deplore the perplexity, strife, litigation, and distress which result from the pursuit of loose and conjectural intentions, brought forward to counteract the settled and determinate meaning of technical expressions. (b) It is now generally admitted, that the decision in Perrin v. Blake was directly contrary to the stream of former authorities on the same subject; and, in Mr. Fearne's view of the case, (c) convenience and policy equally dictate an adherence to the old and established doctrine.

Since the termination of the case of Perrin v. Blake, Lord Thurlow came out a decided champion for the rule; and he held, in Jones v. Morgan, (d) that a devise to trustees to *228 stand seised to the use of A. for life, and after his death to the use of the heirs male of his body, severally, successively, and in remainder, created an estate tail in A. This was repugnant to the doctrine in Bagshaw v. Spencer, for here, as in that case, was a trust estate. So, the case of Hodgson v. Ambrose, (a) falling literally within the purview of that of Coulson v. Coulson, received from the K. B. the same determination; and Mr. Justice Buller observed, that if the testator made use of technical words only, the courts were bound to understand them in the legal sense. But if he used other words, manifestly indicating what his intention was, and that he did not mean what the technical words imported, the intention must prevail, if consistent with the rules of law. That qualification applies only to the nature and operation of the estate devised, and not to the construction of the words. A man is not to be permitted by will to counteract the rules of law, and change the nature of property; and, therefore, he cannot create a perpetuity, or put the freehold in abeyance, or make a chattel descendible to heirs, or destroy the power of alienation by a tenant in fee or in tail. In Doe v. Smith, (b) Lord Kenyon took a distinction

(a) My objection to the work of Mr. Preston is, that he has analyzed, and divided, and sub-divided the subject, already sufficiently intricate, until he has involved it still deeper in "involutions wild."

(b) Mantica, a civilian, wrote a learned treatise, de conjecturis ultimarum voluntatum, and Sir William Blackstone hoped never to see such a title in the English law." (c) Fearne on Remainders, 223.

(d) 1 Bro. C. C. 206.

(a) Doug. 337.

(b) 7 Term Rep. 581.

between a general and secondary intention in a will, and he held, that the latter must give way when they interfered. If, therefore, the testator intended that the first taker should take only an estate for life, and that his issue should take as purchasers, yet, if he intended that the estate should descend in the line of hereditary succession, the general intent prevails, and the word "issue" is a word of limitation. To conclude: the rule in Shelley's case survived all the rude assaults which it received in the controversy under Perrin v. Blake; and it has continued down to the present time in full vigor, with commanding authority, and with its roots struck immovably deep in the foundations of the English law. All

the modern cases contain one uniform language, and declare * 229 that the words, heirs of the body, * whether in deeds or wills, are construed as words of limitation, unless it clearly and unequivocally appears, that they were used to designate certain individuals answering the description of heirs at the death of the party. (a)

The rule in Shelley's case has been received and adopted in the United States, as part of the system of the common law.1 In South Carolina the rule was early acknowledged; (b) and, in a recent case, after a long controversy and conflicting decisions, the Court of Appeals, upon great consideration, decided a case upon the basis of the authority of the rule in Shelley's case. (c) It is

(a) Doe v. Colyear, 11 East, 548. Doe v. Jesson, 2 Bligh, 2. Doe v. Harvey, 4 Barn. & Cress. 610. But now, by the statute of 3 & 4 Wm. IV. c. 106, it is declared, that when lands are devised to the heir, he takes as devisee and not by descent; and a limitation by deed to the grantor or his heirs creates a new estate by purchase. And when any person takes by purchase or will, under a limitation to the heirs or the heirs of the body of the ancestor, the descent is to be traced as if such ancestor had been the purchaser.

(b) Dott v. Cunnington, 1 Bay, 453. (c) Carr v. Porter, 1 M'Cord, Ch. 60. Since the third edition of these commen. taries, the rule in Shelley's case has been declared to be the law of the land in the state of Tennesse, in the case of Polk v. Faris, 9 Yerger, 209, after a profound, able, and spirited discussion in the Supreme Court of that state. It was declared, by Judge Reese, to be a settled principle of the common law; and, that whatever might have been the original policy of the rule, it was, as a rule of property, not inconsistent with

1 The rule prevails in Maryland. Simpers' Lessee v. Simpers, 15 Md. 160; in Rhode Island, Cooper v. Cooper, 6 R. I. 261. In New Hampshire, the rule is abolished in cases where the devise is expressly to the ancestor for life, and then to his issue or heirs. Dennett v. Dennett, 40 N. Hamp. 498.