Doyle v. Andis

Ladd, J.

In the year 1862 Robert P. Andis conveyed the land in controversy to Samuel S. Andis “ during his natural life and then to his heirs.” Subsequently the grantee named transferred the land by warranty deed to another, under whom the plaintiff through mesne conveyances holds title. Samuel S. Andis died in 1899, and the defendants are his heirs a.t law. To the petition, stating the foregoing facte and asking that title be quieted in plaintiff, a general demurrer was interposed and submitted to the court on the theory that, while the language of the deed to Samuel S. Andis brings it within the rule in Shelley’s Case, that rule does not obtain in this state. It was overruled.

Many definitions of that rule have been given. That adopted by Chancellor Kent is generally regarded as both accurate and comprehensive: “ 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.” Preston on Estates, 263. Analyzing, this definition somewhat, it appears that (1) there must be an estate of freehold in the first taker; (2) the estate in freehold and in remainder must be created by the same instrument; (3) these estates must be of the same nature, both legal or both equitable; (4) the word “ heirs ” or other words equivalent in meaning, is essential to the limitation over in ,order to create an estate in fee simple; and (5) the limitation must be to the heirs of him who first takes the freehold. The estate for life, created in the first donee, must be limited precisely as it would descend at law, in order to vest the fee. Little difficulty bas been experienced in determining tbe sufficiency of tbe estate of an ancestor. It may be for .tbe life of tbe devisee or grantee, or of another person, or of tbe joint lives of several persons, and may be absolute or determinable on contingency, and may arise by express devise or necessary implication of law. 2 Jarman on Wills, 1181.

Tbe trouble bas arisen in ascertaining whether tbe words employed in tbe instrument in disposing óf tbe remainder are words of limitation (that is, measuring tbe duration and defining tbe extent of tbe estate of tbe taker of the freehold), or words of purchase (that is, pointing out and designating the objects of tbe conveyance or gift of the remainder to whom it passes directly from the grantor or.devisor). Mr. Hays, in his famous essay on tbe “ Construction of Limitations to Heirs,” adds another division, that of words descriptive of individuals, and then explains the three:

First, as words of limitation, their office is to measure tbe duration and mark out tbe devolution of tbe ancestor’s estate. Thus, if land be given to A. and the heirs of bis body, tbe word “ heirs ” is a word of limitation,- because it is merely subservient to tbe purpose of ascertaining tbe force and direction in point of transmission of .a gift made originally to A., who, as tbe sole object and motive of bounty, first attracted and absorbed tbe entire quantity of an estate not otherwise destined to benefit bis heirs than as, in tire way of the law, they were included in himself. Secondly, as words of purchase, they at once indicate tbe objects and limit the scope of tbe gift. Thus, if land be given to the heirs of the body of A., the word “ heirs ” is a word ‘of purchase, because the heirs are themselves the original objects of the gift; yet tbe word “heirs” is not satisfied by tbe person or persons first answering tbe description of heirs or coheirs, but is of equal capacity with tbe same word used as a word of limitation. So, if land be given to A. for life, with remainder to tbe heirs of his body, tbe intention is manifest to use the word “ heirs ” as a word of purchase, and not of limitation. In order to determine whether tbe word “ heirs ” is meant to be a word of limitation or of purchase, according to the above exposition of those terms, we have only to ask whether it is adjected as an incident to a gift made to the ancestor; or used as the substantive term of an independent disposition. "Where the ancestor is dead, or no estate is given to him, or an estate is by other words expressly limited to him (as in the case put at the close of the preceding paragraph), the word “ heirs ” must always be designed to confer a distinct benefit on persons sustaining that character, and consequently to operate as a word of purchase. It is obvious that this cannot be the point on which learning and ingenuity have exhausted their powers, although, from the language of the disputants, the subject of contention would appear to be whether the word “ heirs ” was to be construed a word of limitation or of purchase. Thirdly, the words in question, when used as descriptive of individuals, are wholly deprived of their natural energy, and sink down to the level of “ children,” etc., ... in which predicament no greater potency can be attributed to them than belongs to the terms with which they are now associated. They ascertain the objects, but in ascertaining the objects their force is entirely spent. The nature and extent of the estate to be taken must be sought for in the context, or, if that be wanting or be silent, in the implication of law. They cannot be more operative than the terms which they represent, and whose operation, as we have already seen, is simply to describe a class of individuals.

Mr. Hargrave, said to be the most lucid expounder of ■the rule, has discriminated clearly between conditions when the rule ought and ought not to be applied:

"When it is once settled that the donor or testator has used words of inheritance according to their legal import, has employed them intentionally to compromise the whole line of heirs to the tenant for life, and has really made him the terminus or ancestor by reference to whom the succession is to be regulated, then it will appear that, being considered according to those rules of policy from which it originated, it is perfectly immaterial whether the testator (or donor) meant to avoid the rule or not, and that to apply it, and to declare .the words of inheritance to be words of limitation, vesting the inheritance in the tenant for life, as the ancestor and terminus to the heirs, is a mere matter of course. But, on the other hand, if the words of inheritance were not used in their full and proper sense, so as to include the whole inheritable blood, and mate the tenant for life the ancestor or terminus for the heirs, but the testator intended to use the word “ heirs ” in a limited, restrictive, untechnical sense, and to point at such individual person as should be the heir, etc., of the tenant for life at his decease, and give a distinct estate of freehold to such single heir, and to make his or her estate of freehold the groundwork for a succession of heirs, and constitute him or her the ancestor terminus and stock for the succession to take its course from, in every one of these cases the premises are wanting upon which only the rule in Shelley’s Case interposes its authority, and that rule becomes quite extraneous matter. So, then, in order to ascertain, in every case, whether' or not the rule is applicable, the inquiry simply is, in what sense did the testator or donor use the words? If in the former sense, the rule always applies, notwithstanding a positive declaration that it shall not. If in the latter sense, the rule is as invariably foreign to the case, the remainder is contingent until the death of the tenant for life, and the party named as heir takes by purchase. 1 Hargrave’s Law Tracts, 575, 577.

Enough has been said to recall the nature and operation of the rule. Even 'this much has seemed unnecessary, in view of its commanding place in the law of real property. No rule of the common law has undergone the exhaustive investigation, thorough discussion, and severe criticism to which the rule in Shelley’s Case has been subjected; and yet it has survived nearly 600 years of controversy in England, and has been generally accepted by the courts of this country as a part of that rich inheritance of common law upon which our jurisprudence is founded. No one now pretends to fix the date of its origin. The conditions for which it was intended to operate as a remedy are mere matters of conjecture. Some have thought that it was devised in feudal tim.es to give the lord his profits of tenure (either wardship or relief) upon the descent to the heirs, of which he would be deprived were the remainder to pass to the heirs as purchasers; but Sir William Blackstone in Perrin v. Blake, 4 Burr 2579 (10 Eng. B. Cases 689), declares, that of tbis be bas never met with a single trace in any feudal writer, and tben adds:

There is hardly an ancient rule of real property but what bas in it more or less of a feudal tincture. The common-law maxim of descent, the conveyancing by livery of seisin, the whole doctrine of copyholds, and a hundred other instances that might be given, are plainly the offspring of the feudal system; but, whatever their parentage was, they are now adopted by the common law of England, incorporated into its body, and so interwoven v?ith its policy that no court' of justice in this kingdom has either the power or (I trust) the inclination to disturb them.

In the same opinion he expressed the belief that the rule was first established to obviate the mischief of too frequently putting the inheritance in abeyance or suspense, and that it was founded somewhat upon “ a desire to facilitate the alienation of land, and to throw it into the track of commerce, one generation sooner, by vesting the inheritance in the ancestor, than if he continued as a tenant for life and the heir was declared a purchaser.” Mr. Hargrave, in his celebrated Tracts, suggests still another reason: That the rule in Shelley’s Case is a part of an ancient policy of the law to guard against the creation of estates of inheritance with qualities, incidents, and restrictions foreign in their nature, and to preserve the marked distinction between the acquisition of a title by descent and by purchase, and to prevent the former from being stripped of its proper incidents and disguised with the qualities of the latter, whereby the estate would become a compound of descent and purchase — an amphibious species of inheritance or freehold, with unlimited succession to the heirs without the properties of inheritance. Hargrave’s Law Tracts, 489, 551.

Certain it is that the power of alienation and that of vested estates were favored doctrines of the common law, and as such were promoted by the rule in Shelley’s Case. If of feudal origin, its purpose must liave been to defeat in part the feudal policy that every grantee or devisee should take his estate per forma doni, the terms of which were to be construed siricli juris/ in conformity with the idea of the ancient Roman law, contained in the Twelve Tables, by which a man, in conveying' an estate .to another, created all his rights by the terms of the conveyance. All estates were regarded, under the feudal system, as mere gifts or concessions on the part of the lords or barons to their vassals, and in the centuries it held sway and as a result of this policy many of the tenures became extremely burdensome, combining, as has been well said, the strangest comminglings of liberty and oppression to be found in any age.

In irrepressible conflict with these conditions was the common law, favoring the fullest investigation and ample in its elasticity to devise a remedy for every wrong. In the necessities of those times, for a principle which would unfetter these estates and defeat the indeterminate tenures, the rale in Shelley’-s Case may have originated. It was applied as early as A. D'. 1325, in a case cited in Perrin v. Blake, and Lord ’ Coke, in the margin of his Commentaries on Littleton, refers to numerous decisions in the Tear Books of Edward III, which, in the words of Blackstone, “ do most explicitly warrant the doctrine extracted from them by that great and learned judge.” Though the principle had long been recognized, it appears not to have attracted general attention until A. D. 1590, when definitely stated by Lord Coke in the case from which its name is derived. 1 Coke, 93b. The discussion then became “ so vehement and so protracted,” according to the celebrated requiem of Chancellor Kent, “ as to rouse the specter of haughty Elizabeth.” The agitation then seems to have subsided somewhat for nearly one hundred years', when it was again awakened in 1770 by Perrin v. Blake. That case arose in Jamaica, and was brought before the Privy Council of England at a time when Lord Mansfield was the only law lord who attended. Pie deemed tbe question, involved of too great importance to be decided by Ms single opinion, and a feigned case was prepared and submitted to tbe King’s Bench. After being twice argued three of the judges, including Mansfield, agreeing that the case was within the rule in Shelley’s Case, were for repudiating it, while one, Yeates, was for applying it. A fierce controversy arose. Pamphlets were written assailing and in defense of Lord Mansfield, one of those in his behalf evoking a bitter reply from Mr. Eearne, author of the great work on Bemainders, and Junius, in his envenomed letters, accused him of attempting to subvert the laws of England. It is said by Lord Campbell in the “ Life of Chief Justices ” that the bar of the entire kingdom was divided into factions for several years, known as “ Shelleyites ” and “ Anti-Shelleyites.” An appeal was taken to the Exchequer Chamber, where, after being several times argued, seven of the justices, including Sir William Blackstone, sustained and applied the rule, and one, Chief Justice De Gray, concurred in the views of Lord Mansfield. That decision was followed by Jesson v. Wright, 2 Bl. 1, (10 Eng. B. Cases, 714), decided shortly afterwards, which has since been regarded as confirming the rule as a part of the laws of England, though in Roddy v. Fitzgerald, 6 H. L. Cas. 823, determined as late as 1858, there were several dissenting opinions. In Jordan v. Adams, 9 C. B. (J. Scott) N. S. Rep. 483, it was severely criticised by Justice Oockburn, but adhered to as a rule of property.

We have briefly referred to the history of the rule as tending to answer the contention now urged that it ought to be rejected as likely to result in defeating the intention of the testator or grantor, and because not in harmony with the spirit of our institutions. These questions were settled in England long after the period of the special usefulness of the rule in curtailing the wrongs of feudal tenures, or its alleged application for the protection of the lords and barons in their profits, had passed away. Undoubtedly the doctrine of stare decisis played an important part, but in the decisions and numerous pamphlets tbe merits were thoroughly discussed. Throughout the long controversy the argument most persistently urged was that it was out of harmony with the spirit of the laws of England, in that it tended to defeat the manifest intention of the instrument to which applied. If anything in the habits of our people or in the genius of our institutions essentially' differentiates their situation from that of the English people in the time of Perrin v. Blake, Jesson v. Wright, or Poddy v. Fitzgerald in respect to this rule, it has not been called to our attention. Undoubtedly there are differences which bear somewhat upon the consequences of its application, but it may be safely asserted that there are -none which have enlarged or re-enforced the-objections in principle then pressed with such learning and skill. Will any one contend that it is not the policy of the law now, as in the days of Coke and Blackstone, to favor-unfettered inheritances, the free alienation of property, and its subjection according to equitable liability to the debts of ancestors ? Is it not still the policy of the law that inheritances shall vest rather than be held in abeyance ? Do we not yet favor those incidents of estates in fee, that the widow be accorded her dower and the husband his curtesy? Is there a single reason for rejecting tire rule now and in this State that was not pressed by the great lawyers and jurists when it was finally imbedded in English jurisprudence as apart of the common law? We have discovered none.

To the claim that, it operated to defeat tire intention, Blackstone responded in Perrin v. Blake, that

The misapprehension of a testator in thinking the remainders were contingent, when they were not so, cannot alter a rule of law. * * * The result of the whole matter is that, the testator having declared his intent that his son shall not alien his land, he to that extent gives his son an estate to which the law has annexed the power of alienation — an estate to himself for life, with remainder to the heirs of his body. Now, what is a court of justice to conclude from bence ? Not that a tenant in tail, thus circumstanced, shall be barred of the power of alienation. This is contrary to. fundamental principles. Not that the devise shall taire a different estate from what the legal signification of the words impart. This, without other explanatory words, is contrary to all rules of construction. But plainly and simply this: that the testator has mistaken the law, and imagined that a tenant for life, with first interposed estate, and tiren a remainder to the heirs of his body, could not sell or dispose of this interest.

Eeame, in his work on Bemainders, declared that “ when a case arises fulfilling the requirements for the application of the rule, it is not against the intention of the testator. It is only applicable when the intention of the testator has been discerned by the ordinary canons of descent.” In Jesson v. Wright, Lord Redesdale said: “ That the general intent should override the particular (as has been stated by Lord Eldon) is not the most accurate expression of the principle of the decision. The rule is that technical words shall have their legal effect unless from subsequent or inconsistent words it is very clear that the testator meant otherwise.” Lord Thurlow, in Jones v. Morgan, 1 Bro. C. 220, observed “ that, if the donor meant that every other person who should be heir should take, he meant, what the law would not suffer him to do, to make the heir take as purchaser.”

The same thought has been well expressed by Mr. Justice Elliott in the recent case of Allen v. Craft, 109 Ind. 476 (9 N. E. Rep. 919, 58 Am. Rep. 425) : “ It has seemed to many that there is a conflict between the rule declaring that the intention of the testator must govern and the rule in Shelley’s Case; but this appearance of conflict fades away when it is brought clearly to mind that, when the word 4 heirs ’ is used as a word of limitation, it is treated as conclusively expressing the intention of the testator. Where it appears that the word was so used, the law inexorably fixes the force and meaning of the instrument.” See Leathers v. Gray, 96 N. C. 548 (2 S. E. Rep. 455). Even were it to be conceded, that the intention is often defeated by the application of the rule, it is to be said that this is in harmony with the policy of the law, which forbids the testator to make a will or grantor a deed that will invest the first taker with a freehold and his heirs as purchaser with an estate in fee simple by way of a contingent remainder, and if such an estate is attempted the law will defeat it, be the intention ever so plainly expressed. In Walker v. Vincent, 19 Pa. 369, the court correctly says:

The law does not pretend to carry out the intention of the .testators in all cases; for many testators show a very clear ¿ntention to shackle the estates granted by them to a degree that is totally incompatible with any real enjoyment of .them, and which the law does not allow. Hence many rules of law are designed to control and frustrate the most manifest intent. The great merit of the rule in Shelley’s Case is that it frustrates and is intended to frustrate unreasonable restrictions on titles; for, when an estate is declared to be a fee simple or fee tail, it is at once made subject to a limitation in its proper form, no matter how clear may be the testator’s intention to the contrary.

The objections to the rule have been based largely on sentiment, and few, if any, cases of actual hardship will be found in the books. Planting themselves on the premises that its operation worked the defeat of the real intention of the grantor or testator, as expressed in the conveyance or will, its detractors have assailed it with vituperation and invective, forgetting that numerous other rules of real estate law, accepted without question, have precisely the same effect, and that the intention, to be effective, must be consistent with the rules of law. A man cannot by will create a perpetuity, nor could he put a freehold in abeyance at the common,law, nor can he limit a fee with a fee, nor make a chattel descend to heirs, no matter how clearly his intention to do so be expressed. See Carr v. Porter, 1 McCord, Eq. 60.

It is denounced as an anachronism, banded down from the feudal ages, but this criticism applies as well to many of the most cherished principles of the common law. Again, it is said that men ignorant of the rule may, in preparing wills or deeds, unintentionally employ language which will compel its application. Such persons axe quite as likely to overlook the forms prescribed for the execution of such instruments, and thereby defeat the purposes of the testator or grantor, and yet no one has demanded that the statutes, prescribing these shall be repealed. So, too, language is often incorporated in a will, possibly in ignorance of the accepted canons of construction, which this court has deemed itself bound to follow, notwithstanding the protests ’that the testator must have intended otherwise. Law v. Douglass, 107 Iowa, 606; Hambel v. Hambel, 109 Iowa, 459; Meyer v. Weiler 121 Iowa, 51. If courts have entertained contradictory views on the applicability of the rule, the same may be said of many others. That a principle is difficult of application has never been regarded as furnishing a sound reason for rejecting it entirely. As an illustration, see Archer v. Jacobs, 125 Iowa, 467. Other rules might have proven quite as satisfactory as those of .the common law, and equally as well or better adapted to the administration of justice. It may be that the oncoming years will demonstrate much of our system to have been crude and imperfect. But the duty of this court is to administer law as found, and, even though it be confident of possessing the wisdom essential to successfully reform and improve many of its rules, the Constitution has conferred the authority so to do upon another branch of government. It is true the common law was adopted only in so far “ as applicable to the habits and conditions of our society, and in harmony with the genius, spirit, and objects of our institutions.” This does not mean that every rule must be subjected to the peculiar test, whether it is better suited than some other to our situation, but whether differences between conditions here and in England render it inapplicable. Thus in Wagner v. Bissell, 3 Iowa, 396, tbe common-law rule’ requiring every man to keep bis cattle witbin bis close, wbicb was necessary in a thickly settled country, was declared in 1856 not to obtain here as against a universal custom to allow cattle to roam at large over the unsettled prairies. And in Pierson v. Lane, 60 Iowa, 60, tbe statute de donis was denounced as inimica-ble to tbe genius and spirit, of our institutions in that “ its object was to place restraints upon alienation and create perpetuities for tbe purpose of maintaining a landed aris*-tocracy.” .It ran counter to tbe policy of our government, and for that reason was rejected. Tbe reverse must be true of tbe rale in Shelley’s Case; for its object, as said in Kiene v. Gmehle, 85 Iowa, 312, was “ to prevent tbe tying up of estates in land, so as to withhold them from alienation for long periods of time.” As remarked before, if there is anything in our situation which renders this rule less appropriate to our situation than it was to that of the English people at the time of tbe severance of tbe two countries, we have been unable to discover it. Merely tbe existence of an aristocracy there is not alone enough; otherwise, the common law in its entirety must be rejected.

In Hileman v. Bouslaugh, 13 Pa. 344 (53 Am Dec. 474), Chief Justice Gibson protested that

Tbe rule in Shelley’s Case ill deserves the epithets bestowed on it in tbe argument. Though of feudal origin, it is not a relic of barbarism, or a part of tbe rubbish of tbe Dark Ages. It is a part of a system; an artificial one, it is true, but still a system, and a complete one. Tbe use of it while fiefs were predominant was to secure the fruits of the tenure, by preventing the ancestor from passing the estate to the heir as a purchaser through a chasm in the descent, disincumbered of the burdens incident to it as an inheritance; but Mr. Hargrave, Mr. Justice Bláckstone, Mr. Eearne, Chief Baron Gilbert, Lord Chancellor Parker, and Lord Mansfield ascribed it to the concomitant objects of more or less value at this day, among them the unfettering of estates, by vesting the inheritance in the ancestor, and m airing it alienable a generation sooner than it otherwise would be. However that may be, it happily falls in with the current of our policy. By turning a limitation for life, with remainder to heirs of body, into an estate tail, it is the handmaid, not only of Taltarum’s Case, but of our statute barring entails by a deed acknowledged in court, and where the limitation is to heirs in general it cuts off what would otherwise be a contingent remainder, destructible only by a common recovery. In a masterly disquisition on the principles of expounding dispositions of real estate, Mr. Hays, who has sounded the profoundest depths of the subject, is by no means clear that the rule ought to be abolished even by Legislature; and Mr. Hargrave shows in one of his. Tracts, that to ingraft purchase on descent would produce an amphibious species of inheritance, and confound a settled distinction in the law of estates. It is admitted that the rule subverts a particular intention in perhaps every instance; for, as was said in Roe v. Bedford, 4 Maule & S. 363, it is proof even against an express declaration .that the heirs shall take as purchasers. But ru is an intention which the law cannot indulge with the testator’s general plan, and which is necessarily subordinate to it. It is an intention to create an inalienable estate tail in the first donee, and to invert the rule of interpretation, by making the general intention subservient to the particular one. A donor is no more competent to make tenancy for life a source of inheritable succession than he is competent to create a perpetuity or a new canon of descent. The rule is too intimately connected with the doctrines of estates to be separated from it without breaking the ligaments of property.

And in Polk v. Faris, 9 Yerg. 209 (30 Am. Dec. 400), Mr. Justice Eeese, for the Supreme Court of Tennessee, declared that

> Whatever m:ay have been the origin of the rule, or how Well soever it may seem adapted to attain the selfish objects or gratify the grasping cupidity of the feudal lord, it happens to have been obviously based also upon principles of public policies and commercial convenience sufficiently broad and deep to cause it to survive for the period of near five hundred, years the rage of legislative innovation and all changes and fluctuations of the most eventful era of the world, and still to challenge the willing obedience and enlightened support of most able minds of Great Britain and the United States. It is a rule or canon of property, which, so far from being at war with, the genius of our institutions or with the liberal and commercial spirit of the age, which alike abhor the locking up and rendering inalienable real estate and other property, seems to be in perfect harmony with both. It is owing, perhaps, to this circumstance that the rule, a Gothic column found among the remains of feudality, has been preserved in all its strength to aid in sustaining the fabric in the modern social system.

That the evils thereof are more imaginary than real is apparent from the fact that this court has up to the present time avoided the necessity of saying whether it should be recognized as a part of the common law of this State. It was first mentioned- in Zuver v. Lyons, 40 Iowa, 510, and held not to apply, for that the ancestor had taken a trust estate and the heirs the legal estate, and the two could not unite in an estate of inheritance. In Hanna v. Hawes, 45 Iowa, 437, the rule was held “ not to be applicable, because the testator did not vest the legal estate in Mrs. Little with a limitation over to the heirs of her body.” The conveyance was by an executor, and' was subject to restrictions in the will that at her death the property was “ to go to the heirs of her body, and, if none, to be divided equally between the surviving children of her mother.” Manifestly by “ heirs of her body ” was meant her children as such, and not heirs generally. In Slemmer v. Crampton, 50 Iowa, 303, the devise was to Maria A. Avery, “ to be used, occupied, and enjoyed by her after she becomes of the age of legal majority, during her natural life only; * * * and it is my further will that after the death of my daughter Maria said ■lands and lot shall go to the heirs of her body free and clear of all liens and incumbrances thereon.” The rule was held not to apply, for that the testator “ intended the heirs to be the root of a new descent, and the nomination of heirs of the body was merely description of the persons who were intended to take.” As even the use and enjoyment did not pass in prcesenti upon testator’s death, much may be said in support of the construction that the devise was directly to the “ heirs of her body ” as a class. See De Vaughn v. Hutchinson, 165 U. S. 566 (17 Sup. Ct. 461, 41 L. Ed. 827); Horne v. Lyeth, 4 Har. & J. 435. While the rule was invoked in Pierson v. Lane, 60 Iowa, 60, the court held that it had no application where the first taker took the fee simple as a fee tail, as' in that case. The conveyance was “ to Minerva Pierson and the heirs of her body begotten by her present husband, George W. Pierson.” This was held to be a conditional fee, not effected by the statute de donis, which was declared to be inimicable to the genius and policy of our institutions and to have been converted into a fee absolute by. the birth of the requisite heirs. The remark in Broliar v. Marquis, 80 Iowa, 49, that the rule was applied in the above case, was evidently inadvertent. In Kiene v. Gmehle, 85 Iowa, 312, the devise to Emilie, daughter of the testator, was of a life estate, with the remainder over to her children. True, it was “ to descend and vest in such heirs of her body begotten, in fee simple.” The condition, however, was annexed that, if she die without heirs of her body begotten, the estate was to “ descend and vest in equal parts to the heirs at law of the said testators,” and the case was ruled by Hanna v. Hawes, supra. The opinion is somewhat inconsistent, for that in one portion it apparently treats the rule as one of construction, and in another as emphatically declared it a rule of property. The latter seems to have been the final conclusion, as the writer, in stating the reasons of the rule, observed: “It is to prevent the tying up of estates in land, so as to withhold them from alienation for long periods of time. If the intention of the donor or de-visor is within the provision of this statute or the rule in Shelley’s Case, it is not sanctioned by the law and will not be given effect, but, if otherwise, it will.” Again quoting approvingly from Hileman v. Bouslaugh, 13 Pa. 351 (53 Am. Dec. 474), “the ascertainment is left to the ordinary rules of construction peculiar to wills; but, when the intention thus ascertained is found to be within the rule, there is but one way. It admits of no exception.” As it has been regarded as a rule of property for more than 500 years, a contrary view ought not to be imputed to the writer of the opinion. The rather should the criticism of authorities holding the rule “ independent of the intention of the donor or devisor ” as “ not sanctioned by reason of the current of adjudicated cases ” be -thought to refer to animadversions of the rule as not being in harmony with the intention; for that, when language within the rule is employed, it is conclusively presumed to express -the donor’s or grantor’s intention. The devise construed in Zavitz v. Preston, 96 Iowa, 52, was, after the first taker, “ to go and be equally divided between his lawful heirs and next of kin,” and manifestly, because of such division, was not within the rule. In Wescott v. Binford, 104 Iowa, 645, the devise was to Hannah Wescott for life, and upon her death the property was to be divided between testator’s three children, William EdAvin Wescott taking the east third of -the lot “ during the term of their natural lives,” but without power to convey “ for a longer period than during their natural lives, respectively.” At death their respective portions were to descend to their heirs, respectively, said heirs to have absolute title to their respective portions. The authorities were reviewed, and the conclusion reached thatit cannot be said -that they show that it has been adopted or should be enforced in this State,” and, later, that “ we do not find it necessary to determine whether the rule in Shelley’s Case is in force in this State, but hold that, if it be in force, it cannot defeat the intent of the testator as expressed by the language of the will.” The conclusion that the language of the will did not bring it within the rule in Shelley’s Case is undoubtedly correct, but might well have been put on another ground. See Brown v. Brown, 125 Iowa, 218; Myers v. Anderson, 47 Am. Dec. 537; McIntyre v. McIntyre, 16 S. C. 290. The ease is authority, then, on two propositions only: (1) That the rule had never been recognized as in force in this State; and (2) that the language of the will did not bring it within the rule. The court did not undertake to pass upon the question now before us, and it may be regarded as res integra.

In the courts of last resort of twenty-five States the rule in Shelley’s Case has been adjudged a part of the common law and enforceable as such. See article in 25 Am. & Eng. Enc. of Law, 639 ét seq. In but one has it been declared merely a rule of construction. Smith v. Hastings, 29 Vt. 240. Mistakes of this character in other States have been corrected by subsequent decisions. Maine was severed from Massachusetts after the abolition of the rule, and for this reason it does not obtain in the former State. In but one, Kentucky, has it been held to be out of harmony with the institutions of this country. Turman v. White's Heirs, 14 B. Mon. 560. The very fact that it has been-abolished in whole or in part in twenty-seven States is strong confirmation that it was thought not to have been so inconsistent with the conditions existing as not to have been adopted as a part of the common law. Eor centuries it has been recognized as a rule of property, and ought not now to be swept away.

“ To disregard rules of interpretation sanctioned by successive ages and by the decisions of the most enlightened courts, under pretense that the reason of the rule no longer exists or that the rule itself is unreasonable, would not only prostrate the great landmark of property, but would introduce a latitude of construction boundless in its range and pernicious in its consequences.” Horne v. Lyeth, 4 Har. & J. 432.- —Affirmed.