SHELLEY'S CASE, RULE IN. "When the ancestor, by any gift or conveyance, taketh 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, the heirs are words of limitation of the estate, and not-words of purchase." 1 Co. 104.
This rule has, been the subject of much comment. Its origin can be deduced from feudal tenure ; 4 Kent 217. It is given by Preston, Estates, pp. 263, 419, 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 the same legal or equitable quality, to his heirs, or heirs of his body, as a clkss of persons to take in succession from generation to generation, the limi tation to the heirs entitles the ancestor to the whole estate. See Stephenson v Hagan, 15 B. Monr. (Ky.) 282; Hargr, Law Tracts 489, 551; 2 Kent 214.
The rule in Shelley's case is not a rule of construction, but an absolute rule of proper ty; Van Grutten v. Foxwell, [1897] A. C. 658 (Lord MacNaghten's historical discus sion).
If the limitation be to one and the heirs of the body, he takes an estate tail; if to one and his heirs generally, a fee-simple ; Bishop v. Selleck, 1 Day (Conn.) 299 ; Baugh man v. Baugman, 2 Yeates (Pa.) 410.
It does not apply where the ancestor's estate is equitable and that of the heirs le gal ; Ward v. Amory, 1 Curt. C. C. 419, Fed. Cas. No. 17,146.
It does not extend of personal-.
ty; Jones v. Rees, 6 Pennewill (Del.) 504, 69 Atl. 785, 16 L. R. A. (N. S.) 734, see, as to this, Bennett v. Bennett, 217 Ill. 434, 75 N. E. 339, 4 L. R. A. (N. S.) 470.
The rule was adopted as a part of the com mon law of this country, and in many of the states still prevails. It has been abolished In 'most of them. The subject has been ex haustively treated In Pennsylvania, and the numerous decisions will be found analyzed and arranged in tabular form In an essay by J. P. Gross. (Harrisburg, 1877.) The rule has been held applicable to instruments in which the words, "heir" or "heirs;" Elliott v. Pearsoll, 8 W. & S. (Pa.) 38; "issue;" Walker v. Milligan, 45 Pa. 179; "child" or "children;" Stewart v. Kenower, 7 W. & S. (Pa.) 288; "son" or "daughter;" Appeal of Yarnall, 70 Pa. 335; "next of kin;" "off
spring ;" Allen v. Markle, 36 Pa. 117; "de scendants," and similar expressions are used in the technical sense of the word heirs. Chief Justice Gibson states the operation of the rule as follows : "It operates only on the Intention (of the devisor) when It has been ascertained, not on the meaning of the words used to express it. The ascertainment is left to the ordinary rules of construction peculiar to wills. . . . It gives the ancestor an estate for life, in the first instance, and, by force of the devise to his heirs, general or special, the inheritance also, by conferring the remainder on him, as the stock from which alone they can inherit ;" Hileman v. Bouslaugh, 13 Pa. 344, 354, 53 Am. Dec. 474. Although a fee is given in the first part of a will, it may be restrained by subsequent words, so as to convert it into a life estate; Appeal of Urich, 86 Pa. 386, 27 Am. Rep. 707. See Hayes on Est. Tail •53; Polk v. Faris, 9 Yerg. (Tenn.) 209, 30 Am. Dec. 400; 77 L. J. Rep. (H. of L.) 170. See Smith v. Proctor, 139 N. C. 314, 51 S. E. 889, 2 L. R. A. (N. S.) 172.
When applicable It Is not affected by the testator's intention ; 28 Atl. Rep. (N. J.) 587. It Is equally applicable to conveyances by deed and limitations by will; 4 Kent •217. If applied to real estate, it enlarges the es tate for life into an inheritance, and makes the tenant for life a tenant in fee; it makes the tenant for life of personalty an absolute owner ; 4 Kent 227.
A deed to one for life, and at his death to his surviving heirs, vests a fee' in the first taker, the word "surviving" not being sufii cient to prevent an application of the rule, at least not where the warranty runs to him and to his assigns forever ; Price v. Griffin, 150 N. C. 523, 64 S. E. 372, 29 L. R. A. (N. S.) 935; so where the remainder is to "his then surviving heirs" and "heirs then living" or "helm living at the time of their deaths" ; Hiester v. Yerger, 166 Pa. 445, 31 Atl. 122; it applies only to limitations in which the word heirs is used unless it clearly appears that testator used some other word to mean heirs. The word "child.'en" is not ordinarily equiva lent to heirs so as to bring a devise within the rule; Hanes v. Utilities Co., 262 III. 86, 104 N.. 156.