The new dominion. [volume] (Morgantown, W. Va.) 1876-1904, 1881-11-12

one lOI lilS, iclHuilNSi III ISS oiihpiS
to the life tenants heirs as such, the
rule will be applied no. matter how
clearly the will may show that tes-
tator intended to give the ancestor
no more than life estate. Such in
tention was regarded in such case
by the courts to be in violation of
public policy, and therefore they re-
fuse to carry out the testators clear
purpose. In almost every case where
the rule has been applied it violated
the intention of the testator to give
the ancestor no more than a life es
tate. 80 Graf, 44S. If the case was
brought within the rule, it has always
been inflexibly applied though the
testator's intention to give but life
estate to the ancestor was ever so
clearly violated" Minor, 343, and
Jarman, IT'S, to same effect.
The case of Perrin q. Blake is re
lied ON. In that case Lord Mans
field attempted to break down the
rule and make a new departure and
we could wish he had succeeded;
but this decision was reversed in the
Exchequer by six out of eight Judg-
es, Blackstone delivering an opinion
which Lord Campbell in his Lives
of the Chief Justices" says was so
exquisite that his reputation as a
lawyer stands on it more than on his
Commentaries.
The rule is 500 years old, and
though abolished in 1850, here it is
to-day with two Of the best farms in
Monongalia dependent on it. My
judgment is these cases are plain in.
stances for its application. The rule
of stare decisis, stand to decisions, has
strong force in these eases. In Vir-
ginia many cases have adopted the
rule in Shelly's case. If not why
the necessity of the act aholishing
it? Take some of the instances where
it has been applied.
"Grant to A for life, remainder to
his heirs" A has fee simple Fearne
70S; l Tucker, 1875. In Jesso1 ..
| Wrfght the devise was "to w. for
life, then to heirs of his body, share
and share alike as tenants in com
mon." w took a fee. In Perrin
q. Blake testator declared his intent
to be that none Of his children should
sell for a longer time than their lives
and "to that INTENT devised part of
his estate to John during his natural
life, remainder over during his life,
remainder over to heirs Of Johns
body. John held fee. Kent, 221.
In Moore as. Brooke, II Graf, a
devise to NJ. and B. during their nat
ural lives, and no longer, and then
to be equally dicided between their
heirs. NJ. and b. held absolute fec.
Judge Allen had to bow to the rule
in Shelly's case. In Hall rs. Smith,
25 Graf, a testator lent slave to M.
for life and gave the slave after her
death to the issVe of her body, to
them and their heirs and assigns
forever, was held by reason Shellys
case to give absolute right. These
authorities decide the present cases.
A general principle of vital import
| llCc COulI clS tOui 70 w dDiOC W Wis
tasteful and originally erroneous de-
cisions that have long existed and
on which titles rest, otherwise all
would be confusion. Objectionable
as the rule is, it defends the titles
Of the defendants.
But 10 is claimed that as to
Jefferson the rule does not apply,
as his heirs were not to take by
way of contingent remainder but by
way of cxecutory devise. An exec
utorv devise is such a limitation of
future estate or interest in lands
as is contrary to the rules of limita-
ton in conveyances at common law,
but is practicable under the statute
Of uses, wills and grants. 1t follows
that if future interest is so limited
under these statutes or otherwise
that it can take effect as a remainder,
it cannot be all executory limitation.
2 Minor, 1863. By the definition of
an executory devise, an estate can
never be construed to be such if it is
possible that it should take effect as
remainder. Minor, 374. To a
contingent remainder a precedent es-
tate is necessary, to an executory de-
wise it is net. 2 Minor, 374. A Kent,
263. If there is freehold estate
capable of supporting a contingent
remainder, it should meyer be con
strued TO be an executory devise,
but contingent remainder. A Kent
263. In this devise there is prece-
ding life estate given Jefferson, after
it devise in fee contingent on his
leaving heirs; and on that life estate
this contingent remainder can rest:
and by the most rigid principles of
common law conveyances it would be
good as a contingent remainder, but
for the rule in Shellv's case execu-
ting it, and as it could take effect as
a contingent remainder, it cannot be
an executory devise. This life es-
tate Of Jefferson supports the remain
der, and makes it a remainder and
excludes the idea of eyecutory de-
wise. Certainly Jefferson's life estate
so called, was not an executory de-
wise, for it was limited upon vested
life estate in his mother, and could
take effect as a remainder.
But it is said jefferson had no life
estate; that therefore there was no