after stating the' case: The question in the case is, whether the limitation of the estate to husband and wife for their natural lives, afterwards to the heirs of the wife forever, is sufficient to pass the fee under the rule in Shelley’s case. The principle embodied in this rule, which, perhaps, was first formally and authoritatively announced by all thе judges during the reign of Elizabeth, in the case from which it takes its name (1 Coke, 219), was of far more remote origin, and for many years had been called “an ancient dogma of the common law.” The principal and most forceful reasons advanced for adopting the rule were to prevent the abeyance or suspension of the inheritance, and to facilitate the alienation of land, throwing it into the track of commerce one generation sooner, by vesting the inheritance in the ancestor, than if he continued tenant for life and the heir was declared a purchaser. “Therefore,” said Justice Blaclestone, “where an estate was limited to the ancestor for life, and afterwards (mediately or immediately) to his heirs, who are uncertain till the time of his death, the law considered the ancestor as the first principal of the donor’s bounty; and therefore permitted him (who, as it is said, Co. Litt., 22, beareth in his body all his heirs, and who 'hаd the only visible and notorious freehold in the land) to sell it, devise it where the custom would permit’, or charge it with *3 bis debts and encumbrances. And however narrow and illiberal the original establishment of this rule, or the adhering to it in later times, may have been represented in argument, I own myself of opinion that those constructions of law which tend to facilitate the sale and circulation of property in a free and commercial country, and make it more liable to the debts of the visible owner, who derives a greater credit from that ownership — such constructions, I say, are founded upon principles of' public policy altogether as open and as enlarged as those which favor the accumulation of estates in private families by fettering inheritances till the full age of posterity now unborn, and which may not be born for half a century.” The rule has also been fiercely assailed by some and mildly criticised by othеrs, as being at war with our free institutions and policy, and as founded upon subtle and artificial reasons and extremely technical considerations. Whether it is an arbitrary rule which is calculated to defeat rather than to execute the intention of the grantor, we are not at liberty to inquire, as it (has been firmly established in our jurisprudence as a rule of lay, which we must enforce whenever applicable.
The question before us is as to the legal effect of the deed of William Gardner to ITenry 0. and his wife, Martha Jane Gardner. Did it convey the fee to Martha, under the rule in
Shelley’s casef
We are of the opinion that it did. The defеndants contend that the subsequent limitation must be to the heirs of the person who takes the particular estate — that is, in this case, the second limitation should have been to the heirs of both husband and wife, as they were seized of the entirety and did not take by moities; but such is not the true operation of the rule. If the limitation had been to the wife for life, remainder to the heirs of the husband and wife, the freehold being in the wife alone, the limitation over would be a contingent remainder, and their heirs would take as purchasers, because the heirs of the husband would not necessarily be the heirs of the wife. 2 Washburn on Real Propеrty (5 Ed.), p. 649;
Robinson v. Wharey,
The very question prеsented in this case has been decided in other jurisdictions. In Hess v. Lakin, 7 Ohio S. and C. P. Dec., 300, where the grant was to a man and a woman during their natural lives, then to the woman’s heirs at law, it was held that the woman took a fee in the whole tract of land, expectant as to one moiety, or subject to that life estate, and thе Court said: “It must be conceded the rule applies only when the subsequent limitation is to the heirs of him to whom the preceding estate was given, but nowhere has it been affirmed in express terms, by either a court or a text-writer, 'that the ancestor must take the whole of the preceding estate, or, if there is morе than one preceding estate, he must have all of them. There is just as much reason for requiring him to have all of them when several antecede the remainder, as there is for requiring him to have the entire preceding estate when only one precedes the remainder.”
The rule is learnedly discussed in thаt case, and was held to apply to a limitation similar to the one in the 'William Gardner deed. The two cases are strikingly alike in their facts, for in
Hess v. LaTtin
it was decided that the wife acquired a fee simple,'subject to her husband’s life estate, and having purchased that estate, she held the entire fee, which was, therefore, conveyed by her subsequent deed. The following authorities are cited in support of the decision: 1 Preston on Estates, 337-340; Fearne on Remainders, 36;
Fuller v. Chamier,
L. R., 2 Eq., 682.;
Bullard v. Goffe,
In
Griffiths v. Evan, 5
Beav., 241, a devise of a freehold estate - to testator’s daughter for life and the life of her husband, and after their deaths to the use of the lawful issue of the body of the wife forever, the testator empowering and authorizing the daughter, for want of such issue, to settle and dispose of the estate as she should think fit by will, was held to create an estate tail in the daughter, with a power of аppointment. Under a deed by which,lands were conveyed to a man and his wife during the term of their natural lives, and to the heirs of the wife and her assigns forever, to have and to hold unto the said, husband and wife during the term of their natural lives, and to the heirs of the wife and their assigns forever, it was held that the wife took a fee simple.
Badgley v. Hanford,
12 N. J. L. J., 75. The Court said (by
Van Syckle, J.)
that where the particular estate is granted to two, 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. And it was further said: “This case, I think, is not excluded from the' rule in
Shelley’s case
by the fact that the husband was entitled to the use of the property during thе joint lives of himself and wife.
Washburne v. Burns,
34 N. J. L. (5 Vr.), 18;
Bolles v. Trust Co.,
12 C. E. Gr., 308. That is an incident of the marriage relation necessarily flowing from the unity of husband and wife. Each was, in law, however, seized of the entirety, and all the conditions were fulfilled which are necessary to bring it within the rule in
Shelley’s case.
The particular estate and the remainder in her were created by the conveyance from Simpson.” It is the form of the second limitation which determines the application of the rule, and it is so held in
Crockett v. Robinson,
46 N. H., 461. Under the rule in
Shelley’s case,
the Court said: “It is not material to inquire what the intention of the testator was as to the quantity of estate that should vest in the first taker. If the limitation were to A for life, remainder to his heirs in fee simрle, without other qualifying words, the actual intention would undoubtedly be that A should take an estate for life only and have no power
*9
to dispose of tbe remainder in fee, and negative words saying that A should take for life only would add nothing to the clearness of the first 'words. The material inquiry is, What is taken under the second dеvise? If those who take under the second devise take the same estate that they would take as his heirs or as heirs of his body, the rule applies'. However clear the intention may be to create an estate in A for life, remainder to his heirs, so that the estate shall go to those persons who are the heirs of A, and descend to his heritable blood in line of descent, the policy of the law, which established the rule in
Shelley’s case,
did not allow such a limitation. By that rule no person was permitted to raise in another an estate of inheritance, and at the same time make the heirs of that person purchasers. 6 Cruisе, 325, 326, 328; Fearne on Con. Rem., 196; Hargrave’s Tracts, 551; 4 Kent, 208, 214;
Denn v. Puckey,
5 T. R., 299, 303;
Richardson v. Wheatland,
As H. C. Gardner survived his wife, the limitation is the same, in legal effect, as if it had been to his wife for life, then to him for life, and ultimately to the heirs of his wife. She acquired a fee simple, subject to his life estate, and as he joined with her in the deed to R. R. Gotten, the entire estate in fee passed to the latter. Wooddeson, 205. The judgment of the court was, therefore, erroneous.
Reversed.