The new dominion. [volume] (Morgantown, W. Va.) 1876-1904, 1881-11-12
MAJOR DAVID SCOTS WILL.
An Important Decision and
able Opinion.
The Celebra ted Rule i'm Shel1y's
Case Involved.

From an opinion of Judge Henry
Brannon in Monongalia Circuit Court
October term, 1881, in the cases of
Rachael Chips ct. al. heirs of JEFF
ferson Scott, as. Ephraim b. Hall,
and James Huffman ct. al. heirs of
Maria Huffman) rs. Aleronder 4,
Hess ct. al.
These cases have been ably and
deliberately argued by Judge Berk-
shire for plaintiff, and by Senator
Wiley, Judge Ollie and p. II. Keck,
ESQ.,, for defendants. They involve
the construction of certain clauses
in the will of David Scott, who died
in 1916, and whose will was proba-
ted in the same year. By one clause
he gave a tract of land to his 'daugh
ter, Maria Huffman, during her nat
nral life, and then to descend to her
legal heirs" by another he gave an
other tract to his daughter Rachael
Chips, during her natural life, and
then to descend to her legal heirs;'
by another he gave another tract to
his wife for life and then to be sold,
and out Of its proceeds he gave 5000
to his son, Jefferson Scott; and hay
ing in time relented in his feelings
toward jefferson, he made codicil
by which he altered his will as to his
wife and Jefferson, and gave the tract
which by said will had been devised
to his wife for life and then to be
sold, to his son Jefferson during his
natural life and at his death then to
descend to his heirs" He gave 9TH
er lands to other children without
these words during natural life and
then to descend to their heirs" but
they had before been decided them by
him.
Maria Huffman and Jefferson Scott
sold and conveyed in fee the tracts
devised them, and these suits are
brought by their heirs to recover the
lands from those claiming under Ma
ria and jefferson, who have long res
ted on their titles.
The question is, did Maria Huff
man and Jefferson Scott take fee
simples so that they had power to
convey fee simple estates, or did they
take only life estates, with remain
ders to their heirs. This involves
that memorable rule, so much dis
cusscd in the law books, SO technical
that it is the fright fnot only Young
students of law, but Of experienced
lawyers and Judges, the rule in Shell
Tvs case AS Judge Berkshire says
it stands out isolated and unique,
and over it has occurred long and
angry controversy. 1t has called
forth the most splendid and wonder
full legal arguments in the annals Of
Jurisprudence. Mansfield, Thurlow,
Hardwick, Hargrave, Fearne and
Blackstone have erected imperishable
monuments to their fame in its dis
cussion. 1t is of great antiquity.
1t was first clearly announced in the
18th year of the reign of King Ed
ward Ii, and admitted as canon of
property in Shellys case in the reign
of Queen Elizabeth. 1t firmly en-
Dedded itself in the English common
law, and our forefathers brought it
over the ocean and planted it in our
soil. Kent says, "Tlle rule in Shell
ly's case survived all the rude.as-
saults which it received in the con
troyersy under Perrin q. Blak5, and
has continued down TO the present in
full vigour, with commanding author
ity, and with it's roots struck immOv-
ably deep in the foundation of the
English law" "The rule has been
adopted in these United States as
part of the system of the common
law" 1t has been often recognized
by the Virginia courts as solid rule
of law until its abolition by the Leg
islature 1st July, 1850. Are these
clauses in this will within or with
out the rule? If within, the plain
tiffs fail; if without they succeed
What is this rule? Tucker states it
thus: "Where the ancestor takes an
estate of freehold, with remainder in
the same deed either mediate or i'm
mediate, to his heirs or the heirs of
his body, the word heirs is a word of
limitation, not of purchase "Where
such remainder is immediate, it vests
or is executed Immediately, in pos
session, in the ancestor; where it is
mediate ii. c. where there is an in
tervening estate, it vests in him, i'm
mediately, in interest" Tucker also
says: Its direct operation is to
give such construction to deeds or
wills as will tend to enlarge the an
cestor's Tor first taker's) life estate
into an estate of inheritance, or at
least to vest in him the estate which
is limited in terms to his heirs.
The effect is, that the ancestors be-
ing invested with an estate in tail or
in fee executed may dispose of it at
pleasure; whereas, If the limitation
was construed to give contingent
remainder to the heir, the first taker
would have no power to dispose of
more than the life estate "By the
common law where an estate is given
to man and his heirs, the effect of
the deed Is at once to invest him with
with the entire and absolute estate
in fee simple. These words are not
construed to give him the estate for
life only, and after his death to his
heirs, but they are construed to give