mainders, occurs that remarkable rule of construction so familiar in our books under the appellation of the Rule in Shelley's case (a).

This rule is propounded in Lord Coke's Reports in the following form that wherever a man, 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, the word heirs is a word of limitation, and not of purchase (b). In other words, it is to be understood as expressing the quantity of estate which the party is to take, and not as conferring any distinct estate on the persons who may become his representatives.

This indeed is the ordinary force of the word heirs; (for as may be inferred from the former remarks on the subject of estates of inheritance), if land is given to a man and his heirs, he takes a fee simple; if to him and the heirs of his body, in fee tail (c); in which cases the word plainly operates as a mere limitation of the quantity of his estate. But where land is given to A. B. for his life, and on his decease to his heirs, or to the heirs of his body, it might be supposed, from the doctrines we have been considering with respect to remainders, that this confers a separate estate on his representatives, and that he will take for his own life only, with contingent re

(a) See the elaborate dissertation on this rule by Mr. Fearne, Fearne by Butler, 28-208, 9th ed.; the observations on the rule by Mr. Hargrave, in Harg. Law Tracts, and the argument of Mr. Justice Blackstone, in Perrin v. Blake, ibid. The cases which call for the application of this rule are very numerous in our law. But they occur much more frequently where the limitation is by will, than where it is by deed. The following are among the many modern cases on

the subject. Roe v. Bedford, 4 Mau. & Selw. 362; Doe v. Jesson, 5 Mau. & Sel. 95; Doe v. Jones, 1 Barn, & Cres. 243; Doe v. Harvey, 4 Barn. & Cres. 610; Right v. Creber, 8 Dow. & Ry. 718; Douglas v. Congreve, 4 Bing. N. C. 1.

(b) Shelley's case, 1 Rep. 104 a. As to the terms in which the rule is expressed, see Fearne, by Butler, 76, 9th ed.

(c) Sup. p. 220, 223, 228.

mainder to his heirs, or to the heirs of his body, according to the apparent purport of the grant. And such ulterior limitation would in fact be a contingent remainder to them, if the previous life estate had been limited, not to A. himself, but to another person. By the effect, however, of the rule which we are considering, the heirs, or heirs of the body of A., will not take in remainder, in the case supposed, nor will A. himself take a mere life estate, but a remainder also in fee or tail; and as that remainder will absorb (according to the law of merger (d)) his life interest, the result upon the whole conveyance will be to give him an estate in fee (or in tail, as the case may be) in possession. And upon the same principle, if another particular estate, by way of vested remainder upon A.'s life estate (for example, a life estate to B.) be interposed before the ulterior limitation to A.'s heirs, or the heirs of his body, that ulterior limitation will take effect in A. himself; but as a vested remainder only in fee or tail, as the intervening estate will in that case prevent a merger. If the estate interposed indeed, be not a vested but a contingent remainder, A. will take (as in the case first supposed) the entire fee; for while the contingency is in suspense, there is nothing to prevent the consolidation of his life estate with the ulterior limitation to his heirs; but he takes it sub modo only, and in such manner that it will open and let in the intermediate estate when the contingency happens (e).

It is to be observed, that the interest which, by the effect of this rule passes to the ancestor, is of a kind very different from that which would belong to him if the words were to receive their more obvious construction. According to the rule, he becomes, in the first case, proprietor of the whole fee, which it is consequently in his power to aliene at his pleasure (subject, where the estate is in tail, to the ordinary restrictions,) and in the two

(d) Vide sup. p. 293.

(e) Fearne, by Butler, 29, 9th ed.; Lewis Bowles's case, 11 Rep. 79 b.

other cases, his interest is of the same description, except as regards the intervening estates; while, on the other hand, if he took an estate for life only (though with remainder to his heirs), he could aliene for no longer period than his own life, and he would have no control over the inheritance.

With respect to the reason of the rule, it is involved in much obscurity (ƒ). But according to the prevalent opinion, it was established with a view to the protection of the feudal lord, who would have been defrauded, it is said, of his wardship and other perquisites, if the heir had been allowed to take by way of remainder, and not by hereditary succession.

We shall conclude this chapter with notice of a legislative provision which applies alike to estates in remainder and to those in reversion. [In order to assist such persons as have any estate in remainder, reversion, or expectancy after the death of others, against fraudulent concealment of their deaths, it is enacted by the statute 6 Anne, c. 18, that all persons on whose lives any lands or tenements are holden shall (upon application to the Court of Chancery and order made thereupon) once in every year, if required, be produced to the court or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements till the party shall appear to be living.]

(f) See Fearne, by Butler, 83, 9th ed. Argument of Mr. Justice Blackstone in the case of Perrin v. Blake,

in Hargrave's Law Tracts; Reeves's Eng. Law, vol. iii. p. 8.

CHAPTER VIII.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON.

[WE come now to treat of estates, with respect to the number and connection of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint tenancy, in coparcenary, and in common.

I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless the contrary is expressed; [and in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. We shall therefore proceed to consider the other three species of estate, in which there are always a plurality of tenants.]

All the three last-mentioned species of estate have this common characteristic,-that the tenants hold pro indi

viso, or promiscuously (a). So that one person is not seised or possessed exclusively of one acre, and another person of another, (for then they would be tenants in severalty,) but the interest and possession of each extend to every specific portion of the whole land of which they are joint-tenants, coparceners, or tenants in common. And accordingly, though only one of them should happen to be in actual possession, yet his possession is considered for many purposes as that of all (b). But in many points of view these different species of estate are materially distinguishable from each other in their character and properties, and it will be necessary therefore to ccnsider them separately, and in succession.

II. An estate then in joint-tenancy (c) is where an estate is acquired by two or more persons in the same land, by the same title (not being a title by descent), and at the same period; and without any limitation by words importing that they are to take in distinct shares. Thus, if lands be limited to A. and B., for their lives, without more, this makes them joint-tenants of the freehold, if to A. and B. and their heirs, this makes them joint-tenants of the fee(d). [The estate so acquired is called an estate in joint-tenancy (e), and sometimes an estate in jointure, which word as well as the other, signifies an union or conjunction of interest; though in common speech the term jointure is now usually confined to that estate, which

(a) Co. Litt. 189 a, 190 b, 163 a. (b) Doe v. Taylor, 5 Barn. & Adol. 583; Ford v. Grey, 1 Salk. 285; Doe v. Keen, 7T. R. 386; Doe v. Pearson, 6 East, 173. But now by the Limitation Act, 3 & 4 Will. 4, c. 27, s. 12, if one or more of several persons entitled as coparceners, joint-tenants, or tenants in common, shall have been in the possession of the entirety, or more than his undivided share or shares, for his or their own benefit, or for the

benefit of any person or persons other than the person or persons entitled to the other share or shares, such possession shall not be deemed to have been the possession of such last-mentioned person or persons, or any of

them.

(c) As to this estate, vide Co. Litt. 180 a,-188 b.

(d) Litt. s. 277.
(e) Ibid.