(dissenting)—
“In deáling with the Rule in Shelley’s case it is very easy to become antiquarian. The deeper you go into it, the more tantalizing its puzzles become; indeed, one can foresee, and perhaps envy, the scholar who some day will escape from a troubled world and devote his life to writing the definitive work on the Rule. Done with insight and imagination it *867could be as great as Gibbon’s ‘Decline and Fall of the Roman Empire.’ ” Casner and Leach: Cases and Text on Property (1st ed. 1951) 363.
The challenge is interesting, but the basis of this dissent will be limited to three propositions:
First: The legislature has established the Rule in Shelley’s Case as a rule of decision in this jurisdiction and this court has recognized it as such.
Second: RCW 11.12.180 (Laws of 1917, chapter 156, § 40) does not abrogate the Rule in Shelley’s Case.
Third: The majority opinion makes questionable an indeterminate number of titles to real property in this state.
I. Rule of Decision
The Rule in Shelley’s Case is one of a family of common-law rules of property. Also included are the rules against perpetuities and restraint on alienation developed by the common law to encourage the early vesting of estates and the power of alienation. They are positive rules of law, not rules of construction.
RCW 4.04.010 provides:
“The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall he the rule of decision in all the courts of this state.” (Italics mine.) Laws of 1862, chapter 1, § 1; Laws of 1877, chapter 1, § 1; Code of 1881, chapter 1, § 1; Laws of 1891, chapter 17, § 1; see Cooper v. Runnels, 48 Wn. (2d) 108, 112, 291 P. (2d) 657, 57 A. L. R. (2d) 597 (1955).
This court has recognized the rule against perpetuities1 and the rule against restraint on alienation2 as “rules of decision” in the courts of this jurisdiction. The rules are *868applied with equal vigor to the provisions of deeds, wills, and trusts.
It is the thesis of part I of this dissent that prior decisions of this court have recognized the Rule in Shelley’s Case as a rule of decision in Washington.3
The Rule, which was promulgated as early as the fourteenth century, has been stated in many different ways,4 but one of the more concise definitions, attributed to Chancellor Kent, is:
“ ‘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 an interest of the same legal or equitable quality, to his heirs or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.’ ” 47 Am. Jur. 791, Rule in Shelley’s Case, § 2.
This court first recognized the Rule in Shelley’s Case in Shufeldt v. Shufeldt, 130 Wash. 253, 268, 227 Pac. 6 (1924).
“It is thought that the rule in Shelley’s case, which as a principle of common law is in force in this state, sustains the contention that the remainder under discussion could not be a vested remainder. That arises from a misunderstanding of the rule in Shelley’s case.
“Under the rule in Shelley’s case, if an estate for life is granted by an instrument and the remainder is limited by the same instrument, either mediately or immediately, to the heirs of the life tenant, the life tenant takes the remainder as well as the life estate.
“The requisites of the rule are these: ‘first, a freehold estate; second, a limitation of the remainder to the heir or heirs of the body of the person taking the freehold estate, by the name of the heirs as a class, and without explanation, as meaning sons, children, etc.; third, the estates of freehold and in remainder must be created by the same instrument; fourth, the estates must be of the same quality— that is, both legal or both equitable.’ Bails v. Davis, 241 Ill. 536, 89 N. E. 706, 29 L. R. A. (N. S.) 937.”
*869The efficacity of the Rule was presented squarely to the court in Fowler v. Wyman, 169 Wash. 307, 309, 13 P. (2d) 501 (1932). Property had been deeded to the grantee “ ‘during her life time, and at her death to be the property of the heirs of her body.’ ”
Not only did the court hold the Rule compatible “with the institutions and condition of society in this state,” but also held the grantee to have a fee-simple estate, saying:
“Counsel for appellants say that our recognition in Shu-feldt v. Shufeldt, 130 Wash. 253, 227 Pac. 6, of the rule in question was ‘pure obiter dictum.’ No need of any contro-versary about that. They admit that the question of the validity of the rule is in this case, and we take occasion to say now that the rule is a rule of decision in this state because of the common law and the provisions of Rem. Comp. Stat., § 143.”
In In re Johnson’s Estate, 192 Wash. 439, 73 P. (2d) 755 (1937), the court held that the Rule in Shelley’s Case was not applicable to the testamentary trust under consideration. The life tenant had an equitable interest, the heirs a legal interest; thus, the facts did not fit the format of of the Rule.
Finally, the court recognized and applied the Rule in Shelley’s Case to a trust agreement in Fowler v. Lanpher, 193 Wash. 308, 75 P. (2d) 132 (1938).
My point is: The legislature, by virtue of RCW 4.04.010 (quoted supra) and its predecessors, has made the common law “the rule of decision in all the courts of this state.” This court has heretofore determined that the Rule in Shelley’s Case, a part of the common law, is
“ . . . not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state. . . . ”;
hence, the Rule in Shelley’s Case should be applied to the facts of the instant case unless it is clearly demonstrated that the Rule has been abrogated by the legislature.
II. RCW 11.12.180 — (Laws of 1917, chapter 156, § 40)
When Frank Geissler died in 1936 and his will became *870operative, the only statute applicable to the question now before the court was Rem. Rev. Stat., § 1410 (now RCW 11.12.180). It provided:
“If any person, by last will, devise any real estate to any person for the term of such person’s life, such devise vests in the devisee an estate for life, and without the remainder is specially devised, it shall revert to the heirs at law of the testator.”
It is of interest to note that this statute, passed in 1917 (Laws of 1917, chapter 156, § 40), was in force and effect when this court discussed the Rule in Shelley’s Case on the four occasions mentioned.
I do not agree that the statute manifests a legislative intent to abrogate the Rule in Shelley’s Case. It simply states a rule of logic — and of property: If the owner of an estate in real property devises a lesser estate than he owns, the interest therein that is not devised is a reversion and vests in his heirs unless “the remainder is specially devised.” The basic purpose of the statute is to define a situation in which an interest in land reverts to the heirs of a testator. It does not purport to abolish anything.
Although not controlling, because the subject matter was personal property, Abbott v. Everett Trust & Sav. Bank, 50 Wn. (2d) 398, 312 P. (2d) 203 (1957), is illustrative of the scope of the statute. Decedent, by his will, did not purport to dispose of the remainder of the trust estate; it was not “specially devised.” We held that the residue of the trust fund (if any) would revert to the heirs of the testator after the death of the life tenant.
On the other hand, the testator may specially devise the remainder to a third person, or he may specially devise the remainder to the “heirs” of the life tenant. In neither event would the statute be operative, for either the third party would take as a remainderman5, or the *871life tenant would be entitled to the whole estate under the Rule in Shelley’s Case.
The majority opinion quotes and discusses Laws of 1854, § 45, p. 318; Laws of 1860, chapter II, § 37, p. 172; and Laws of 1862, chapter V, p. 210, and fairly points out their deficiencies. (There has been no previous judicial interpretation of them.) I do not agree that these statutes manifest an unmistakable legislative intent to abrogate the Rule in Shelley’s Case, nor that they are applicable to this case, for they were not the statutes in force at the time of the decedent’s death.
III. The Majority Opinion Unsettles Title to Real Property.
I hold no brief for the Rule in Shelley’s Case. If, however, it is to be abolished in this jurisdiction as a rule of decision, it should be abolished by the legislature, not by judicial opinion. Long prior to statehood, the supreme court of Hawaii held that, although it was authorized to adopt the reasoning and principles of the common law
“. . . ‘so far as the same may be founded in justice and not in conflict with the laws and customs of this kingdom’ . . . , ”
it was not bound to do so. The court declined to adopt the Rule in Shelley’s Case as the law of the kingdom. Thurston v. Allen, 8 Hawaii 392 (1891).
The supreme court of Vermont refused to apply the rule. Smith v. Hastings, 29 Vt. 240 (1857); Gilkey v. Shepard, 51 Vt. 546 (1879).
I cannot find that any jurisdiction has abrogated the Rule in Shelley’s Case by judicial decision once the rule has been espoused as a part of the common law.
The Rule in Shelley’s Case was abrogated in England by the Law of Property Act, 1925, 15 & 16 Geo. 5, chapter 20, § 131, at p. 661. At least thirty-six states have adopted statutes that wholly or partially abrogate the rule.6
*872If it is to be abrogated in this state, it should be done by statute operating in futuro. To abrogate it by judicial decision, even as to wills, will unsettle an indeterminate number of titles to real property whose validity has been previously established by reliance upon the rule as one of decision in this jurisdiction.
The facts of the instant case furnish an excellent example of the confusion in titles that will result. The inheritance tax report filed by Mr. Geissler’s executor with the Washington State Tax Commission treated all of the property of decedent as vesting in Teresa Geissler in fee simple. Paragraph 10 of the decree of distribution states that
“. . . said property has now been distributed in accordance with the will of the deceased.”
Certain lots in the town of Odessa were distributed to Teresa Geissler in the same manner as other real property of the estate. June 13, 1945, Teresa Geissler executed a warranty deed conveying fee-simple title to the Odessa property. Thereafter, a quit claim deed was executed to the same grantee by the Catholic Bishop of Spokane, releasing the interest he would have had in the Odessa property in the event of Teresa Geissler’s remarriage.
Quare: Who owns the Odessa property now?
Under the majority opinion, it would appear that the conveyance of the Odessa property by Teresa Geissler is a nullity. I am sure this illustration can be multiplied many times.
I would affirm the judgment of the trial court; hence, this dissent.
Donworth and Hunter, JJ., concur with Weaver, J.
January 8, 1962. Petition for rehearing denied.
In re Lemon’s Estate, 47 Wn. (2d) 23, 286 P. (2d) 691 (1955), and cases cited; see RCW 11.98.010-900 (Laws of 1959, chapter 146, § 1) for statutory modification.
Richardson v. Danson, 44 Wn. (2d) 760, 270 P. (2d) 802 (1954); Seattle First Nat. Bank v. Crosby, 42 Wn. (2d) 234, 254 P. (2d) 732 (1953); Fowler v. Wyman, 169 Wash. 307, 310, 13 P. (2d) 501 (1932).
See Cross, “The Rule in Shelley’s Case in Washington,” 15 Wash. L. Rev. 99 (1940).
See 3 Restatement, Property, §312, and comment subsection (1), p. 1742.
See McKenna v. Seattle-First Nat. Bank, 35 Wn. (2d) 662, 214 P. (2d) 664, 16 A. L. R. (2d) 679 (1950), for a discussion of an attempted remainder to heirs of grantor. Noted: 26 Wash. L. Rev. 139 (1951).
The statutes are collected in Restatement of the Law, 1948 Supp., § 313, p. 490.