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left nothing due on the notes and mortgage. The defendant also filed a cross-bill, alleging in substance the same facts, and praying the cancellation of the notes and discharge of the mortgage.

In answer to the cross-bill, complainant admitted all the material allegations of the same, except that part of it which claimed for her a life estate by the will, she insisting that by the terms of the devise the fee was vested in her.

The court decided complainant had a fee simple in the land, under and by virtue of the devise, and decreed a sale of the premises to satisfy the notes and mortgage.

To reverse this decree the defendants appeal, and contend that, by the devise, a life estate only was vested in complainant. Appellee contends that the words used in the will fall within the rule in Shelly's case; and that is the question before us. Another point is made by appellants, and that is, if the devise is within the rule in Shelly's case, that rule is not in force in this State.

The first point to be settled is, what is the rule in Shelly's case?

That case arose in the twenty-third year of the reign of Elizabeth, about the year 1579, near three hundred years ago, and is reported in 1 Coke's Rep. side paging 93 b., wherein, among other rulings, it was held, where the ancestor takes an estate of freehold, and in the same gift or conveyance, an estate is limited either mediately or immediately to his heirs, either in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase.

Preston, in his elaborate treatise on "Estates," devotes a chapter of near two hundred pages, to a critical and searching analysis of this rule, and says the rule may be thus expressed: First. When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and afterward, in the same deed, will, or writing, there is a limitation by way of remainder, with, or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally, or his heirs of his body,

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by that name in deeds or writings of conveyance, and by that, or some such name in wills, and as a class or denomination of persons to take in succession from generation to generation, the limitation to the heirs will entitle the person or ancestor himself to the estate or interest imported by that limitation.

He expresses the rule secondly, thus: Whenever the ancestor takes an estate of freehold, or frank tenement, and an immediate remainder is thereon limited in the same conveyance to his heirs or heirs in tail, such remainder is immediately executed in possession, in the ancestor so taking the freehold, and, therefore, is not contingent or in abeyance.

A third, and still more accurate expression of the rule is, as we have stated it at the outset, taken from the ruling of the court, as found in the reported case.

The author further says, this rule has been expressed with greater precision by one of the very able counsel, Sergeant Glynn, in Perrin v. Blake, to be "in any instrument if a freebold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body he takes a fee tail; if to his heirs, a fee simple." 1 Preston on Estates, 263, 4, 5.

This rule is venerable for its antiquity, having received the sanction of the highest courts in England as far back as the 18 of Edward II., and is based on their authority, as found in the year books of that and subsequent reigns.

This we gather from the able argument of Mr. Justice Blackstone, in the opinion delivered by him in the Court of Exchequer, in the celebrated case of Perrin et al. v. Blake, first reported in 4 Burrow, 2579, but more fully in 3 Greenleaf Cruise on Real Property, 313.

That was a case arising under the will of William Williams, and the question arose upon a demurrer to a replication in an action of trespass. It was there held by three judges against one, that the legal operation of the word heirs, as a limitation, might be controlled by the manifest intent of the testator, and be construed into the description of a purchaser.

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In the will in question was this clause, "It is my intent that none of my children shall sell his estate for longer than his life, and to that intent, he gives all his estate to his said son, John, and said infant for their lives, remainder to trustees to preserve contingent remainders, remainder to the heirs of the bodies of his said sons," etc.

Three of the judges held that "heirs" must be construed a word of description, and the heir would take the inheritance as a purchaser, and, therefore, John took only an estate for life.

On a writ of error to the Exchequer chamber the case was there elaborately argued, and six of the seven judges concurred in overruling the judgment of the King's Bench, giving full effect to the rule in Shelly's case.

It was on that occasion the able and elaborate argument of Mr. Justice Blackstone was delivered. The suit was pending more than thirty years, the judges giving their opinions seriatim on the 29th of January, 1772, more than one This case was taken to the House of Lords by the defendant. While pending there it was compromised.

hundred years ago.

The leading question in the case, for no one disputed or doubted the rule in Shelly's case, was, "Whether a testator's manifest intent might control the legal operation of the word heirs as a limitation?"

Even Justice Blackstone, in delivering his opinion, said he agreed with the King's Bench that if the intent of the testator manifestly and certainly appeared by plain expression, or necessary implication from other parts of the will, that the heirs of the body of A should take by purchase, and not by descent, then a devise to A for life, and after his decease to the heirs of his body, not only might, but must, be construed an estate in strict settlement; but he thought it did not manifestly and certainly appear from the mere intended restraint of the power of alienation in A, that the testator had meant that the heirs of A's body should take by purchase and not by de

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scent, or even that he knew the difference between the two methods of taking.

But it was held by seven judges of the Exchequer, Justice Blackstone concurring, against one, and has been uniformly so held since, that the rule in Shelly's case was not a rule of interpretation, but an inflexible rule of property; and that in all cases of devises of legal estates whenever lands are given to a person for life, or for any greater estate, with an immediate remainder to the heirs or heirs of the body of such devisee, the word "heirs," or the words " heirs of the body," shall operate as words of limitation, and give the devisee an estate in fee simple or in tail.

As we understand, one of the principal reasons for establishing this rule was to prevent the abeyance or suspension of the inheritance. The rule, therefore, is only applied to those limitations in which the word "heirs " is used, on account of the maxim that nemo est hæres viventis. But the rule does not apply when the words lawful issue, issue, sons, or children are used instead of heirs. These words are regarded as words of purchase, and not of limitation, and the ancestor, therefore, would take only a life estate, and his sons or children would take by purchase, for the reason that they are a designation of persons to take originally in their own right. But when the limitation is to the heirs, it is, in legal intendment, as a class or denomination of persons to take in succession from generation to generation. 1 Prest. on Estates 265.

As Lord Thurlow said, in Brown vs. Morgan, 1 Brown's Ch. R. 216, when the heir takes in the character of heir, he must take in quality of heir, and all heirs taking as heirs must take by descent. Since the solemn determination in Perrin v. Blake, in the Exchequer, the rule in question has been regarded as one of the most firmly established rules of property, and, strictly speaking, no instance can be adduced of a departure from it. 2 Jarman on Wills 243, side paging.

The requisites of the rule are, that there must, in the first instance, be an estate of freehold devised; there must be a limitation to the heirs or heirs of the body of the person

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taking that estate, by that name, and not the heirs as meaning or explained to be "sons," children, etc.; that these heirs must be named to take as a class or denomination of persons in succession from generation to generation, and by way of remainder, or at least so that the estate to arise from the limitation to the heirs, and the estate of freehold in the ancestor shall both owe their effect to the same deed, will, or writing; and that the several limitations shall give interests of the same quality, both legal or both equitable. 1 Prest. on Estates, 266. Testing the devise in this case by these requisites, no one will deny it fulfills them all.

A life estate is devised to Mary Sophia. That is an estate of freehold, though not of inheritance. 1 Wash. Real Property 88; 4 Kent's Com. 23, 24. "The principal to descend to her heirs "they are named to take as a class or denomination of persons in succession from generation to generation, and by way of remainder, or so that the estate to arise from the limitation to the heirs and the estate of freehold in Mary Sophia, both owe their effect to the same will, and that the several limitations give interests of the same quality, and both of them legal, there is no dispute.

That this rule was part of the common law of England, and an established axiom in the law of real property in that realm for near five hundred years, is not, and can not be denied. 4 Kent's Com. 243.

That it is law here, what more authoritative can be found than the Act of our General Assembly?

"The common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British Parliament made in aid of and to supply the defects of the common law, prior to the fourth year of the reign of King James the first, excepting the second section of the sixth chapter of 43 Elizabeth; the eighth chapter of 13 Elizabeth; and ninth chapter of 37 Henry VIII., and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority."