The rule as stated by Chancellor Kent was as follows:

"When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons, to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." 5

The application and extent of the rule has been thus expressed in Coke's Institute:

'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.- 1st. Of deeds. 2dly. Of surrenders of copyholds; and 3dly, of devises.

"1st. Of the application of the rule in Shelley's case in the construction of deeds. Where an estate was mainders, by suffering a common recovery. Hob., 259. And the right of suffering a common recovery is a privilege personal to the donee in tail, and his heir in tail, when heir; therefore a corruption of the inheritable blood of the issue, by the attainder of their ancestor for treason, will preclude their right to suffer a common recovery so as to bar the remainders. Jenk. Cent., 251, Hob., 345. And attainder of tenant in tail creates a disability to suffer a common recovery, Barton's case, 2 Rol. Abr., 394; Jenk. Cent., 250; though between the crime and attainder, it should seem, that a common recovery may be suffered. Stevens v. Winning, 2 Wils., 219; 1 Prest. Conv 140. But a recovery sufferea by a tenant in tail, being an alien, will bar the remainders expectant on his estate. 4 Leon., 84. It may be further observed, that a recovery will be good only for that portion of estate which is vested in the tenant in tail who is vouched.

4 Warvelle on Real Property, 269.

5 Warvelle on Real Property, pp. 268-269.

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, etc., of A. would have been considered as words of purchase, giving a contingent remainder to the heirs, etc., of A., according to the rule of law, that nemo est hoeres viventis; 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 anything 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 inheritance 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 land by real actions. And 3dly. 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 shown 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 vs. 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 free hold 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., 38. And where the lmitations 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. Lewis 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. 774, 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 vs. 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 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. 517 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, 22b.; yet no person can be supposed to include in himself the heirs of himself, and of some body 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 vs. 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 of 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.