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that the words, dying without issue, shall be construed to relate to issue living at the time of the death of the ancestor; and the same provision has been enacted in North Carolina; but the legislatures of these states, as it appears, did not see fit to touch the rule in Shelley's case.

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In Massachusetts, and in Connecticut, on the other hand, the rule in Shelley's case has been abolished, but the rule in regard to an indefinite failure of issue has been suffered to remain as at common law.

It is remarkable, as each of these two rules of construction is designed to carry into effect what is supposed to be the general intent of the grantor or devisor, in opposition to his particular intention, by giving an estate which shall descend to the issue, instead of permitting the issue to take as purchasers, that the legislatures of the states which have been mentioned, should have thought it wise to abolish one of those rules whilst the other was permitted to remain. It is certain that cases may be stated, which would be considered as calling for the application of both these principles, where it would be impossible to carry into effect the statutory regulation on one subject, and the inconsistent common law doctrine on the other.

If in Massachusetts an estate is devised to a man for life and after his death to his heirs, and if he should die without issue then over, the statutory abrogation of the rule in Shelley's case would require that the heirs should take by purchase, whilst the common law rule in regard to an indefinite failure of issue demands that the estate should be construed an estate tail which should descend to the issue. As the statute is imperative, it would be necessary to construe the estate of the heirs as a fee simple by purchase and to give effect to the limitation, if at all, on the death

1 See Act of Feb. 24, 1819, sect. 26. 3 See Rev. Laws, chap. 59, sect. 9.

VOL. XXIV.-NO. XLVII.

2 Revised Statutes, chap. 43, sect. 3. 4 See Statutes, tit. 58, ch. 1, sect. 5.

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of the tenant for life, without issue living at the time of his death.

The same limitation in Virginia would be executed as an estate of inheritance in the first taker, and the operation of the statute which we have cited would be to prevent the estate limited over from taking effect as a remainder upon an estate tail, whenever the issue might fail, and it could only vest on the failure of issue at the time of the death.

In the state of New York both of these rules have been abrogated.' We have classed these subjects together in this discussion, because they are rules of construction of similar import, and the reasons for sustaining one of these rules are equally applicable to the other. The object of the rule in Shelley's case is to create an estate tail, when an estate for life is expressly given, with such subsequent limitations as denote an intention to give an estate to the first taker, with the incidents of an inheritance. The object of the correlative rule respecting limitations, after a dying without issue when an estate for life is given to the first taker, is the same.

The rule in Shelley's case appears to be necessary to sustain another rule, that when a freehold of inheritance is given to a person, he shall have all the incidents of the inheritance, and that those incidents shall, in favor of third persons, also attach to his estate as an estate of inheritance.

It is the policy of the law to preserve the power of alienation in the first taker of an estate for life, which is limited after his death to his heirs or issue, and also to make him the stock of inheritance. The law does not permit the incident of an inheritable estate to be severed from it at the election of the grantor. In the limitation of estates it is usually the intention to circumscribe the power of a particular tenant, and nevertheless to make the estate descendible to his heirs. The design is incompatible, being an attempt

See the Statute "for the creation and division of estates," sect. 22.

to attach to the estate a part only of the qualities of the inheritance.

If it is the design of the grantor of the estate, to prevent the immediate grantee from exercising the power of alienation, he may carry that intention into effect by granting an estate for life, and by limiting an estate to the heirs as purchasers, by terms not of limitation but of purchase, and it is only necessary that the intent should appear, to make the heirs take by purchase. No peculiar terms are required by law to effect this purpose, but only that the intention should be manifested to make the issue and not the ancestor the stock of inheritance.

The law has never ascribed a peculiar force to technical terms except so far as they were attached to a peculiar meaning. If words were used which showed that it was the intention of the grantor to create an estate of inheritance in the first taker, both as it regarded descent and the power of alienation, the proper effect was given to those terms as words of limitation, but if terms were used which showed that the intention of the grantor was to create a life estate and to make the issue purchasers, and the stock of inheritance, they were so construed. If the terms were doubtful, or capable of being construed as words either of limitation or of purchase, the particular design might be controlled by the general intent of the grantor.

If the law had permitted a grant to a man for life and after his death to his heirs, to be qualified by a provision of the grantor that the grantee should not have the powers which belong to an inheritable estate, a ready mode would have been suggested for changing the qualities of such an estate by a mere change in the phraseology. Thus the policy of the law would be evaded, whilst the result would be an incompatibility of principles. The rule in Shelley's case has been opposed, as in all cases at variance with the intention of the grantor, whose design it is that the first

taker should be a mere tenant for life. This is the particular intention, but notwithstanding, it is also his intention that the heirs shall take by descent, and that all possible heirs of the ancestor shall inherit. The law could not carry into effect both these purposes, for the simple reason that they are incompatible. If the rule in Shelley's case is abolished, the full intention of the grantor cannot be carried into effect for the same reason. If the heirs take by purchase, all possible heirs of the ancestor are not within the line of succession. The intention will still be effectuated only in part.

It is quite remarkable, that a positive rule should have been adopted by statute, providing for a particular intention, which is perhaps manifestly inconsistent with the general design. Even those who have been opposed to the application of the rule in individual cases have not rested upon the ground that the heir was a purchaser. They have supposed that he took as heir, and by descent, so that all possible heirs of the tenant for life would be capable of taking, but the principle established in the states where the rule has been abrogated is entirely different from that promulgated by the judges, who contended against its application in the case of Perrin and Blake. They would have had the issue take by a quasi descent, so as to fulfil the general and paramount intention of the grantor. The statute, on the contrary, which declares that the issue shall take by purchase, provides for the glaring absurdity that the estate shall go, in a certain event, in a course of succession different from that pointed out in the conveyances, whilst professing to fix the presumed intention by positive

enactment.

The same remark is obvious in regard to a statutory regulation of the construction to be given to limitations after a failure of issue. The meaning of the limitations cannot be fixed by an invariable rule. A provision, mak

ing the issue in all cases to take by purchase, or in all cases by descent, would amount, in many instances, to a legislative modification of the conveyance. When an estate is limited to a man generally, or to him and his heirs, or the heirs of his body, and on failure of his issue then to a new stock of inheritance, a question of construction often arises, especially in complicated modifications of property, of extreme difficulty. The difficulty regards the intention, and often results from the inconsistency of the intention with established rules and principles. The substantial intention, when an estate is limited to one, and on failure of his issue to another, is to give an estate to the first taker, and to the heirs of his body, if he shall have heirs. The estate given to the first taker and to his issue is a restricted estate of inheritance. It is not the entire fee, and therefore admits of the limitation of a remainder. On the failure of When an estate

issue this limitation regularly takes effect. is limited to one and his heirs, so that a fee simple is created, no remainder can be limited on this estate, because all that is capable of being granted is vested in the first taker. No subsequent estate can be limited, except by substitution, and such substituted estate must vest within certain limits prescribed by law. When a remainder limited on such an estate is allowed to have effect as such, it is only when the precedent estate is by construction reduced to an estate tail by the apparent intention to confine the inheritance to the heirs of the body. If the estate is for life expressly, with remainder to another on the failure of issue of the tenant for life, the remainder would vest on the death of the tenant without issue, but if the estate can be construed an estate tail by implication, the remainder over will take effect on the failure of the line capable of inheriting the estate tail.

The point has usually been regarded as arising upon the construction of words of limitation, rather than as relating