(dissenting). Eor the reasons herein stated I cannot concur in the foregoing opinion:
*54I. The rula in Shelley’s Case has never been recognized or enforced in this State. As the opinion concedes this to be true, and that the citation which has sometimes been made of Pierson v. Lane, 60 Iowa, 60, and one or two other cases, as sustaining the rule, is an error, I need take no tima to demonstrate the correctness of this proposition.
II. It hás been expressly condemned and repudiated by this court. To make this clear beyond cavil let us first illustrate the substance and effect of the rule in its practical operation. In a vast majority of cases it is applied to a will or conveyance of land in which the owner attempts to give or devise a life estate to a named beneficiary, with a remainder in fee to the heirs of such life tenant. Under such state of facts the rule in Shelley’s Case steps in to- say that the remainder given to the heirs must be defeated, and that he who was given a life estate only shall be vested with the entire fee. Bearing this distinctive feature of the rule in mind, a brief reference to our decisions will demonstrate the correctness of my assertion that we have again and again distinctly denied its force as a rule of property in this State. In Slemmer v. Crampton, 50 Iowa, 302, we held that a devise of lands to A. during her natural life only, and after her death to her heirs, should be'construed to mean just what it said, and that A. took nothing more than the life estate, which it was clearly intefided she should have. This holding was in clear disregard of the rule in Shelley’s Case according to every approved statement of its effect. 1 Preston’s Estates, 363; 2 Washburn Real Property (6th Ed.) section 1613; Hileman v. Bonslaugh, 53 Am. Dec. 475; Roe v. Bedford, 5 Gray, 99. In Kiene v. Gmehle, 85 Iowa, 312, we have another and more emphatic ruling in the same direction. There the devise of lands was. to Emilie Mack for life, and at her death to descend to her heirs in fee simple. This made a clear case for the application of the rule, if it was to be recognized in this State, and the claimants under Mrs. Mack insisted upon its benefit; but we said that, if *55Shelley’s Case was to be recognized as an authority at all, it would be treated as a rule of construction only, and that, where the intent to pass merely a life estate to the first taker is clear, it must prevail. In this connection we spoke as follows of the general principle, which has never been repudiated by this court until the accomplishment of that result by the majority opinion in the present case: “ Courts may not give effect to any other result than that intended.' To do so would be to make-a will for the, testator. Neither may they defeat the intention when it is. lawful. There are some respectable authorities that hold the rule in Shelley’s Case is independent of the intention of the donor or devisor; that it is absolute and imperative. Such application of the rule is not sanctioned by reason or the current of adjudicated cases in this country.” Again in Zavitz v. Preston, 96 Iowa, 52, we said: “Whether the rule in Shelley’s Case is in force in this State we need not determine. It certainly cannot be invoked -to defeat the intent of the testator.” So, too, in Wescott v. Binford, 104 Iowa, 645, we carefully reviewed all our previous cases bearing on the rule and announced the conclusion that it can “ not be said of them that it has been adopted or should be enforced in this State.” We further said that to give the word “ heirs ” a technical meaning, and thus frustrate the intention of the testator by giving the first taker a fee, instead of a life estate, “ is not in harmony with the best rules of interpretation, nor with the weight of authority, nor to "be founded in reason, nor to be demanded by anything in the letter or spirit of the laws of this State or the condition and policy of its people and their institutions. The conditions which the rule was designed to meet do not exist here, and to hold that it applied to the will under consideration would be to go counter' to the rules of interpretation which this court has always applied, to overrule .in effect many cases which we have decided, to some of which we have referred, and to establish a rule which has been so unjust in its operation as to be aban*56doned or modified by nearly all tbe States in which it was once in force.” The opinion also combats the idea that the rule is one of property, and not of interpretation, and cites our cases to show1 that such doctrine is not favored in this State.
III. Save, in a limited sense, the common law of Eng1land, by virtue of which alone the rule in Shelley’s Case ever had being,'has never-been adopted in Iowa. In many, and perhaps most, of the States of the Union statutes were early enacted adopting the entire system of the common law as of the date of the first settlement of this country or of the date when we attained national independence. It has been necessary, therefore, for such States, in order to get rid of the rule in Shelley’s Case and other debris from past ages and primitive conditions, to effect such purpose by statute. Iowa has never attempted any legislative adoption of the common law, and this court has steadily held that only so much of that system will be here recognized and enforced as is suitable to the habits and conditions of our society and in harmony with the genius and objects of our institutions. Wagner v. Bissell, 3 Iowa, 396; Ex parte Holman, 28 Iowa, 88; Pierson v. Lane, supra. Brought to this test, the rule in Shelley’s Case must be condemned. In design and in practical effect it is wholly at variance with the spirit which pervades our Constitution, laws, and accepted social theories. I confess to some degree of surprise to find the majority twice repeating the suggestion that there is nothing “ in the spirit or genius of our institutions which essentially differ-entia'tes them ” from those of the English people at the time of our separation from the mother country. If such be the case, then the Revolutionary fathers should be called down from their pedestals and relegated to the list of conspirators against human rights. English institutions of that day were founded upon and permeated by the idea, not yet extinct, that a landed aristocracy is an essential order of society, to the preservation of which Parliament and -the courts were *57pledged; and the rule in Shelley’s Case was unquestionably one of the devices conceived and framed as a means to that end. It served to prevent the subdivision and distribution of lands, and to cement their concentration in the hands of the few. The inability of the majority to discover any difference between such institutions and those of a people where the multiplication of land-owners is believed to be essential to the general welfare does not appear to have troubled the Supreme Court of the United States, which says that in England the rule in Shelley’s Case “ is in accordance with the established law of descent, the general sentiment of the people, their public policy, and the spirit of their institutions. It helps to conserve the power and splendor of the ruling classes by keeping property in the line of descent which the rule prescribes. Our policy is equality of descent and distribution. Such is the sentiment of our people and such is the spirit of our institutions.” Daniels v. Whartenby, 84 U. S. 639 (21 L. Ed. 661).
If this opinion of the highest court of our land is correct, and it cannot be successfully denied, then Iowa’s “ ruling classes ” will have occasion to felicitate themselves on the opportunity which we now give them to keep their lands “ in the line of descent ” and prevent undue encouragement of the plebeian classes to become independent proprietors. The easy facility with which in this case we are overturning our former decisions and abandoning principles which have long been well settled makes reference to the precedents of .no avail; but I cannot refrain from saying that, while adopting and applying many of the cardinal principles of the common law of real property, we have hitherto refused to recognize the binding force of many rules invented by the English courts and lawyers to maintain the ascendency of the great proprietors. As a marked instance of this we may recall the entailment of lands at common law —■ a scheme by which the title was passed to a grantee or devisee and to the heirs of his body in direct line of descent, failing which *58at any time, no matter bow far in the future, the title reverted to the grantee. This device was just as firmly in-grafted upon English law as was the rule in Shelley’s Case. The one is no more foreign to our institutions than the other. The States which adopted the common law by act of the Legislature bound themselves to both, and in most cases have since abolished both. Iowa has never abolished either by statute, and, if one is to be recognized, then for equally good (or bad) reasons we should give force to the other. Yet in Pierson v. Lane, supra, we found that the entailment of land titles is inconsistent with the theory upon which society is here founded and refused to give it effect. So we might proceed to enumerate an almost endless list of rules and so-called principles pertaining to real property and titles which no court thinks of' enforcing, although no attempt has been made at their formal abolition. It has long been our boast that the common law is a ceaseless evolution, adapting itself to the changing conditions of successive generations. “ It is not an unchangeable code, like that of the Mudes and Persians, but a system that has grown up with the growth of our civilization and is capable of being molded to meet the wants of society in every stage of its progress.” Heter v. Mullen, 159 N. Y. 34 (53 N. E. Rep. 700, 44 L. R. A. 703, 70 Am. St. Rep. 517). In Mentzer v. Telegraph Co., 93 Iowa., 757, we adopted this sentiment, and added: “ Should it [the common law] ever fail to be adjustable to new conditions, which age and experience bring, then its usefulness is over, and a new social compact must be entered into.” If the truth there so eloquently and com vincingly stated is now to be ignored, and our sanction given to the resurrection in all its ancient vigor of a rule which we have said was “ designed to meet conditions which do not here exist,” and is “ so unjust in its practical operation ” as to lead to its general abandonment, the tributes we have paid to the progressive character of the law should be frankly *59withdrawn, and the terms of the new social compact have our serious consideration.
IY. The rule has been abolished or become obsolete in a great majority of the States of the Union and in voluntarily adopting it at this late day we put ourselves out of harmony with the law as it exists in sister jurisdictions. Of the forty-five States, twenty-seven have abolished the rule by statute, although in seven of them the abolition is held to apply to wills, and not to deeds. In several of the new States the question of its existence has never been raised, and no statute abolishing it has been passed, these States evidently being satisfied that the rule is already extinct without the aid of legislative action. This decision will bring to their attention the important truth that some forms of evil may go into “ desuetude ” for an indefinite length of time without becoming “ innocuous.” .In Vermont, not included in the foregoing classification, the rule has never been allowed as a rule of property. Smith v. Hastings, 29 Vt. 240; Blake v. Stone, 21 Vt. 475. The principal States in which the courts have notably recognized the rule are Pennsylvania, Maryland, Indiana, and Illinois, and in at least two of these it has been greatly encroached upon by decisions which have sought to relieve it of some of its admittedly harsh features. McIlhinny v. McIlhinny, 137 Ind. 411 (37 N. E. Rep. 147, 24 L. R. A. 489, 45 Am. St. Rep. 186); Ridgeway v. Lanphear, 99 Ind. 253; Belslay v. Engel, 107 Ill. 182. Elliott, J., of the Indiana court, thus indicated his view of the rule: “ Whatever reasons may once have existed for it in England have even there long since ceased, and no good reason is perceived for its incorporation into the legal policy of this country.” Siceloff v. Redman’s Adm’r, 26 Ind. 251. Mr. Freeman says that questions respecting the rule possess “ more of historic interest than practical value.” Note to Polk v. Faris, 30 Am. Dec. 400. The rule itself comes from an age of which Blackstone says: “ Its ingenuity perplexed all theology with the subtility of scholastic learning *60and bewildered philosophy with its mazes of metaphysical jargon.” The same singular tendency was manifested in the law of tenures, and there was built up a system’of real estate law filled with nice distinctions and refined reasoning, the great body of which is at this time of as little living interest as are those ancient disputations concerning the number of angels which can comfortably stand upon the point of a needle. Most of these mystifying, doubt-breeding characteristics of English land tenures have disappeared with the darkness of the age in which they had their birth. Chancellor Kent’s celebrated “ requiem,” of which the opinion speaks, was inspired by his discovery that even at that early date the rule in Shelley’s Case had ceased to exist, and he calls his flowery eulogy upon its ancient defenders a “ humble monument to departed learning.” Does it not border upon sacrilege for us, who should be foremost in showing honor to the great Chancellor, to remove the monument which he so reverently erected and exhume that departed learning which he then laid ,to rest? The inquiry which the majority make, whether the “ unfettering ” of estates and the vesting of inheritances are not still the policy of the law, is wholly irrelevant to the question before us. When the law undertakes to say to the donor that his gift of a life estate to A. with remainder to his heirs, shall be defeated and distorted into a gift to A. of the entire fee, but that a life estate to A., with remainder to B. or to the children of B., will be respected and enforced, it is transparent folly to pretend that the result in the first instance is to be justified -upon the assumption of some deep underlying purpose to hasten the “ unfettering of estates.” If a deed or will be obscure or ambiguous, and 'there is a manifest uncertainty whether the estate given was intended as a life estate or fee, then the supposed policy to which the inquiry refers may lead the court to decide in favor of the latter construction; but where there is no ambiguity there *61is no policy of the law which inclines the courts to disregard or defeat a clearly expressed intention.
V. The spirit of our laws and great body of our adjudicated cases sustain the imposition that the first duty of the court is to ascertain the intent of the donor, and, if that intent be lawful, to enforce it. Now, a landowner has an undoubted perfect legal right to give his property to A. for life and to heirs of A. the remainder in fee; and this is true, even where the rule in Shelley’s Case prevails, providing only he makes use of a choice of words which avoids the technical pitfalls which that rule spreads in his path. Why, then, in this one instance, should a lawful intent, clearly expressed, be selected for defeat, when in all others we feel religiously bound to effectuate it ? In all the infinite variety of litigation arising from matters of contract and upon the construction of written instruments through which title to property is traced (save only as this rule creates an unnatural exception), the intent of the parties to the writing is the one aim of judicial inquiry. T'o that end we have said, so repeatedly that citations are unnecessary, the entire writing will be considered, each part in light of all the others, and the words will be given their popular meaning or their technical signification according as it may appear they were intended to be understood. The rule in Shelley’s Case strikes at the foundation of this principle and foists upon the writing an interpretation wholly foreign to the maker’s purpose. That such is the case is not seriously denied by the majority. They say, however, that, while it does serve to defeat the “ particular intent ” of the donor, it gives force to his “ general intent.” Just what that phrase means as hero applied I am wholly unable to comprehend. The donor expresses his intent to give to A. a life estate in certain property, and after his death to the heirs of A. in fee. The “ particular ” intent is plain enough. - It is not open to any doubt. What hidden “ general ” intent can be extracted from this provision, the accomplishment of *62which, makes it necessary to destroy the remainder given to the heirs and give the fee ,fo him from whom it was expressly withheld? Indeed, upon this point the majority opinion yields all that the most strenuous opponent of the rule may claim when it says that by its application “ the words in question are wholly deprived of their natural energy.” This sonorous euphemism, when duly studied, will be seen to mean simply this: that the rule is designed, not only to defeat the expressed intent, but to impose upon the words of the donor a meaning utterly foreign to such intent. In other words, it not only defeats the will or deed made by the property owner, but proceeds to make for him another, will or deed which never had the assent of his mind. Such a proposition is not to be defended as a matter of principle, nor should .any court give effect thereto, unless required by statute or by undoubted controlling precedent, neither of which overruling circumstances confront us in this case. The following from a report adopted by the State Bar Association of Pennsylvania, an organization which counts among its members many great lawyers in a State where practical experience has demonstrated the effect of the rule, is woi*thy of much consideration.
That this rule always defeats the real intention of the grantor or testator is freely admitted by every one. Of what avail are the canons of construction ? The words maly plainly show the intent, but they no longer have weight. It matters not what hardships are inflicted, what injustice is done, or how it may frustrate the plans of the testator, this relic of barbarism is in supreme control, and its power will continue until abridged by legislation, So long as this imperiou's rule is permitted to hold sway, there will be uncertainty as to the effect of grants and devises on this line, and the result must be contention in the courts to ascertain whether the intention of the testator falls under the guillotine of that rule. Feudal tenures have long since been abolished. We know them not in Pennsylvania, and why should we continue in force a rule which, as now enforced, every judge and every court admits is antagonistic to and destructive of the *63idea of allowing the owner free will in the disposition of his property.
Report Pa. State Bar Ass’n 1898, page 32.
VI. Though the rule claims origin so far back that its history cannot be precisely traced, and Has been the object of indiscriminate, if not idolatrous, adulation upon part of its defenders, and although the cases in which the courts have struggled with it are numbered by the thousands, it is still so obscure in its statement and so difficult of apprehension that it has been and must be, wherever it prevails, a more fruitful source of strife and litigation than any other one question affecting land titles. No clearer or more learned statement of the nature of the rule has been or can be made than is contained in the majority opinion, and when I say it constitutes a labyrinthine puzzle, in which the whole profession may enter and no two lawyers find the same exit, it casts no reflection upon those who formulated the statement, but simply demonstrates the inherent weakness and uncertainty of the proposition which they attempt to defend. The most skillful of the captive brickmakers in Egypt could not make bricks without straw, and the most expert legal dialectician who undertakes to clothe the rule in Shelley’s Case with the varnish of plausibility finds himself confronted with a poverty of material compared with which the destitution of the oppressed Israelites was a wasteful abundance. If, then, in such case, they who enter the lists of apologists betake themselves to the thick mists of black-letter learning, it is not so much from choice as from the necessities of the position they have assumed. In that uncertainty is found one of .the most persuasive reasons why. this State, thus far happily free from the perplexities which inevitably follow recognition of the rule, should not be subjected to its influence. The definitions of the principle by courts and law writers are numerous, varying only in the degree of obscurity in which they are clouded. The centuries of its history hav,e be&n insufficient for its advocates to find common ground' *64on which, to stand m its practical application, and the lawyer who sets out to discover the “ weight of authority ” upon many of its phases soon finds himself lost in an impenetrable forest of varying precedents and discordant opinions.
A few years since a young lawyer, seeking “ more light ” upon the subject, addressed a request to> the American Law Review, then edited by Seymour D. Thompson and Leonard A. Jones., both eminent law writers, asking for “ a plain, common sense, easy to be understood definition of the rule in Shelley’s Case,” and receive answer as follows: “ Not having the capacity to understand the rule in Shelley’s Case, or to acquire an understanding of it by any degree of diligence within the limits of a lifetime, we find ourselves unable to comply with the modest request of our esteemed correspondent.” Lord Macnaghten says, in Grutten v. Foxwell, supra, that “learned writers on the subject are not agreed as to the mode in which the rule operates.” Sir Edward Sugden despairingly declares that “ no man can reconcile the decisions.” Montgomery v. Montgomery, 3 J. & L. 47. In Perrin v. Blake, Mr. Justice Blackstone spoke of the rule as being flexible, and leaving some room for construction in accord with the manifest intent of the testator. After his death Lord Macnaghten (Grutten v. Foxwell) and Lord Thurlow (3 Jur. Ex. 363) were at much pains to explain that Blackstone did not really mean what he said, and that the rule is as inflexible and unyielding as the law of gravitation. 9 Washington Law Reporter 258, says that from the date of the engraftment of the rule upon the common law “ it has been the source of perplexity to the courts and of endless annoyance to the bar, as well as absolute wrong to the testator and heirs, has perverted, changed, and abrogated the intention of donors, and thereby proved a. Pandora’s box of legal troubles and the destruction of the peace of families and the consumer of their estates.” In Pennsylvania the rule has been adhered to from the early history of the State, and there, if anywhere, we should look *65for the law to be settled. An experienced lawyer of that State, writing in 36 American Law Register 239, tabulates not less than one hundred cases involving the rule, decided by the Supreme Court of Pennsylvania, in which the same words “ heirs,” “ heirs of the body,” “ issue,” “ children,” and other similar forms of expression have been construed with such variant and contradictory results that he justly declares that before a member of the profession undertakes to draw a deed or will giving the first taker an estate for life with remainder to his issue, heirs, or children (a perfectly legal method of conveying or transmitting title, if one is fortunate enough to select the right form of words), he should “ stop, look, and ponder, for the beaten path is treacherous.” After reviewing the cases, he comes to- the very just conclusion that, even after the lawyer has given to the preparation of such instrument the best thought of which he is capable, his confidence in its being construed according to its intent must rest solely on the dubious hope that the court will follow one line of its decisions rather than the other. This condition is typical of the state of the case law of every jurisdiction where the rule has been applied, and it fully justifies the same lawyer’s summing-up : “ A rule of law may be gray with age, and therefore venerable; but it may also be gray with mildew.” Mr. Pearne, in his preface to his great work on Remainders, says that “ one of the greatest judges who ever lived tells us that such is the number and character of the decisions- on the rule in Shelley’s Case and its kindred topics that the mind is overwhelmed by their multitude and the subtility of the distinctions between them.” Judge Lyman P. Trumbull, of national fame as a lawyer and statesman, says the rule in Shelley’s Case “ has contributed more than all other causes combined to defeat the wishes of persons who have attempted to dispose of their estates by will,” and characterizes it as “ a rule coming down from the Dark Ages and promulgated by some judge in the case of one Shelley, declaring the word *66‘ heirs ’ a word of limitation and not of purchase, whatever that means. Where and for what purpose the rule was promulgated nobody exactly knows, and its meaning nobody except one learned in black-letter law understands, and it is doubtful if he does. To the common mind the rule is nonsense.” 27 Am. Law [Review, 321.
Let us note some of. the intricacies in which the subject has become involved. While, according to the letter of the rule, a gift to A., with remainder to his heirs, will vest A. with the entire estate, and give the heirs nothing, yet it is held that, if the word “ heirs ” is found to have been used as the equivalent or synonym of “ children,” the donor’s intent will prevail, and A. will take a life estate only. Shimer v. Mann, 99 Ind. 190 (50 Am. Rep. 82); Criswell’s Appeal, 41 Pa. 288. So, too, it has-often been held that a remainder over to the “ child,” or “ children,” or “ issue,” of the life tenant, will not enlarge the life tenancy into a fee. Chambers v. Payne, 59 N. C. 276. But let us beware. This avenue of escape is also beset with thorns. If, upon reading the instrument, the court thinks that you used the word “ child,” “ children,” or “ issue ” as the equivalent or synonym of “ heirs,” then the rule steps in to destroy the life estate you attempted to create, and gives the entire title to a person you did not intend should have it. 2 Flint, Real Property 128; Robinson v. Robinson, 1 Burr. 38; Doe v. Davies, 4 Barn. & Ad. 43; Lee v. Mosley, 1 G. & C, 539; Roddy v. Fitzgerald, 6 H. L. C. 823; Simpers v. Simpers, 15 Md. 160. So it has been held that if to the limitation to “ heirs ” there be added the words ' “ share and share alike,” or other similar expressions, the rule may be avoided. Mills v. Thome, 95 N. C. 362 (2 Minor’s Inst. 404); Shreve v. Shreve, 43 Md. 382; Mills v. Thorne, 95 N. C. 362; Taylor v. Cleary, 29 Grat. 453; Burgess v. Thompson, 13 R. I. 712. Exactly the opposite conclusion has been reached by many other authorities. De Vaughn v. Hutchinson, 165 U. S. Rep. 566 (17 Supt. Ct. Rep. 461, 41 L. Ed. 827) *67Doe v. Cooper, 1 East, 279; Jesson v. Doe, 2 Bligh, 1; Grimes v. Shirk, 169 Pa. 83 (32 Atl. Rep. 113). A devise to husband and wife for life, with remainder to their heirs,, falls within the rule. Feely v. Moore, 3 O. 465; Auman v. Auman, 21 Pa. 343. A devise to a husband for life, with remainder to his heirs by his present wife, falls without rule. Den v. Hobson, 2 W. Bl. 693; Verum v. Wright, H. L. C. 35.
Indeed, without threading this maze any further, and we have here scarcely entered its border, we may say that about the only method by which the donor can give a life estate to another, with a remainder to the heirs of the donee, and feel reasonably sure that his purpose will not be judically thwarted, is to create the life estate and'the remainder by separate instruments; and this method is probably not open to one who wishes to pass the estate by will, instead of by deed. 1 Fearne, Remainders, 71; 1 Preston, Estates, 309; Moore v. Parker, 1 Ld. Raym. 37; Coale v. Arnold,, 31 Eng. L. & Eq. 133; 2 Washburn, Real Property (6th Ed.) section 1605. It is but little short of the ludicrous to find that this rule, to which its adherents have for ages invited attention as the product of profound wisdom and as an indispensable safeguard of property rights and promoter of wise public policy, is, when reduced to its lowest terms, a simple declaration that you shall not by a single written instrument do that which you may lawfully and effectually accomplish by two. Every one of the fine distinctions by which the rule is surrounded, and I have mentioned but a mere fraction of them, is an open door to untold litigation. There is not another doctrine connected with the law of real estate which has been productive of so much strife, not another which the courts have involved in such obscurity and uncertainty, and not another ■ of which it can be so truly said that its application is invariably 'a triumph of injustice. . %
VII. The final argument of every apologist for that *68rule is that it is intended to prevent the tying up of estates, and is therefore in accord with the general policy of our laws. A little reflection will reveal the fallacy of the argument. It is not the policy of our laws to restrict, invalidate, or discourage the creation of life estates. On the contrary, we have by express statute provided, not only that the property owner may suspend the power of sale for the lifetime of a person in being, but for twenty-one years thereafter. Neither has it ever been the policy of the common law to discourage or destroy life estates for the purpose of “ removing clogs ” upon the alienability of lands. During all •the years since the rule in Shelley’s Case came into being, the right to create life estates in almost every conceivable method (save only the one form at which that rule is aimed) has been recognized, upheld, and enforced by the courts with unvarying regularity. Thus it happens that, whale forbidding the donor to give a life estate to A., with a remainder to A.’s heirs, he has been at perfect liberty to give a life estate to A., with remainder to the heirs of A.’s wife, or to the heirs of A.’s mother-in-law, or to the heirs of an entire stranger. The same common law permitted the piling of one life estate upon another in the most puzzling contusion. It created life estates for the benefit of the surviving wife, and husband, and for the tenant in tail after the possibility of issue has ceased. It construed every deed which omitted the magic word “ heirs ” as conveying a mere life estate. It upheld the entailment of estates and the law of primogeniture, and all the other elaborate and.multifarious devices by which the alienability of lands was held in check and the estates of great families preserved, even at the expense of their creditors. In view of this history, the faith which can discover in the rule in Shelley’s Case a benevolent design to facilitate transfers of title comes clearly within St. Paul’s definition: “ The substance of things hoped for; the evidence of things not seen.” Even in England, with all its conservative adherence to the tradi*69tions of tbe law, the lawyers are ceasing to deceive themselves by this sort of sophistry. In a recent paper read before the Judicial Society of London, Sir George Bowyer says: “ The celebrated rule in Shelley’s Case, which has caused so much discussion, is based on feudal reasons which are now obsolete.” Juridical Society Papers, 543.' So, also, in most States in which the rule still prevails, the courts no longer assert such defense of the rule, but candidly adm^ it has no foundation in the present order of things. If the creation of life estates be inimical to the welfare or prosperity of the people, it is within the power of the Legislature to regulate or prohibit them. It has not done so, and the court is not constituted the guardian of the people, with power to enact rules of property which the law-making power does not see fit to adopt. On the contrary, the creation of a fee, the enjoyment of which is postponed to the termination of a life estate, being within -the conceded power of the landowner, the court should feel in duty and in conscience bound to protect its exercise, and not go out of its w.ay to recall a disused and discredited principle to defeat-it.
VIII. It is the just and appropriate tendency of the laws of this country to promote simplicity of contract and the easy creation and transfer of titles to property, and to ignore the merely technical, wherever it is necessary to attain the ends of substantial justice. In England conveyancing is or has been largely the work of skilled men constituting a learned profession, and under such circumstances it is perhaps a fair presumption that technical words are intended to have a technical effect. In .this country, and especially in the western States, the great majority of deeds and wills are drawn or executed by others than lawyers or men having expert knowledge of conveyancing. Justices of the peace, notaries, bank clerks, and sometimes clergymen and physicians, prepare these instruments for their patrons and neighbors. The inherent ineradicable vice by which the rule in Shelley’s Oase is differentiated from all our hitherto ac*70cepted rules of law is that it gives to words a meaning and effect diametrically opposed to their universally accepted meaning among the people, including people of education and experience who use and understand the English language, and thus creates a snare by which the average person, learned and unlearned, finds it impossible to express his intent, no matter how lucidly it be stated, with any certainty that it will be respected by the courts. The average grantor and most of the scriveners never heard of Shelley’s Case. They have all heard the word “ heirs,” and know what it means in ordinary parlance, but have yet to discover that none but a veteran' lawyer can write that word in-a deed or will without danger of defeating the intention which to the ordinary mind has been expressed with the utmost clearness. Eor a well-to-do-person to desire to give a life estate in land to a child, with a remainder over to the offspring of such child, is a matter of everyday occurrence in almost every neighborhood. He has both the legal and moral right to thus fence against the weakness or misfortune of the child, and at the same time preserve the inheritance for the grandchildren. The statute which gives voice to the public policy of the State expressly permits him to suspend the absolute power of controlling and conveying the property for the period of a life in being and twenty-one years thereafter. Code, section 2901. His object is a laudable -one, and, if carried into effect, tends to the public benefit, in that it insures the objects of his bounty against becoming public charges. Now, let us note the experience of the farmer or business man, who goes, as he is quite sure to do, to a nonprofessional conveyancer and asks to have prepared an instrument which shall secure certain property to his son for life, and after the son’s death to his children or heirs absolutely. The conveyancer, rashly believing that, if he draws an instrument which states exactly what the father wishes to do, the law will uphold and enforce the clearly expressed intention, writes: “Know all men by *71these presents, that I, A. B., in consideration of tbe love and affection I bear to my son, C. D., hereby grant and convey to tbe said C. D. tbe following described lands, * * * to bave and bold for and during tbe term of bis natural life, and after tbe death of my said son to bis heirs in fee simple.” Tbe father, having executed this instrument and put tbe son in possession, fondly supposes that bis benevolent purpose is now assured. But, if tbe rule in Shelley’s Case is still tbe law of bis jurisdiction, be may awake tbe next day to see that land seized and sold for tbe son’s debt, or to see tbe son himself squander tbe entire inheritance in tbe nearest bucket shop or upon a horse race. Too late be goes with bis troubles to a lawyer, who, after dusting bis Kent’s Commentaries and making sure that be correctly remembers tbe rule, tells bis client there is no hope.
It is true, be says, you intended to give your son a simple life estate in tbe land, and it is equaly true you stated that intention in so many plain English words; but unfortunately you gave tbe remainder after bis death to bis “ heirs.” If, instead of this word, you bad said “ children,” or “ wife and children,” or had described these persons by their individual names, or bad made tbe heirs of a stranger, instead of your son, tbe objects of your bounty, tbe property might bave been saved; but you failed to understand that it is sometimes a legal mistake to clearly express a legal intention. Of course, these “ children ” will be “ heirs ” of your son if they survive him, and you supposed tbe terms to be convertible, but nemo. est hceres viventis. Having used that fatal word, tbe fact that every person of common sense and intelligence understands that you did not mean to give this land to your son absolutely, tbe fact that you bad the unquestioned legal right to give him a life estate only, and the fact that you bave expressed that intention with all tbe clearness and exactness of which our mother tongue is capable, all these things count as nothing, and tbe inheritance you designed for your helpless grandchildren must go to swell tbe list of offerings upon tbe altar of Shelley’s Case.
If be is so constituted that tbe ball-mark of the Dark *72Ages is a sufficient passport to bis confidence, be will find food for comfort in learning that be bas simply come in collision with “ a Gothic column found among tbe remains of feudality,” and in any event be will bave cause to congratulate bimself upon bis narrow escape from tbe grave responsibility of “ producing an amphibious species of inheritance.”
Tbe disposition which this man sought to make of bis property was natural, commendable, and lawful. Why should the court make it unnecessarily difficult, and construct or adopt artificial and oppressive rules to thwart tbe purpose of tbe donor? If tbe rulp in Shelley’s Oase had never existed, and it was now proposed for tbe first time, every court and lawyer in the United States would respond with a prompt and emphatic protest against a plan so inconsistent with the spirit of our civilization and so abhorrent to tbe principles of reason and justice. As this State bas never been subject to its influence, we should be no less prompt and earnest in denying it a place in our legal system. Tbe suggestion made by tbe majority that few instances are likely to arise requiring this court to apply tbe rule adds nothing to tbe ai'gument. New demands bave hitherto been made for tbe enforcement of tbe rule in Shelley’s Oase, simply because the great body of the profession bas taken this court at its word that such rule is not recognized as tbe law of Iowa. Now that we bave announced otherwise, it requires no prophet’s vision to foresee tbe rapid increase in such litigation. Of tbe further suggestion that there are other rules and principles of real estate law coming from feudal times which are admittedly in force, though having no apparent justification in modern conditions, I have only to say that, conceding this to be true, I am still unable to admit the soundness of the logic which justifies the adoption of an admittedly vicious rule by showing that we are already burdened with others equally bad.
• In my opinion the judgment of the district court should be rev&rsed.