ment was superseded by the instantaneous descent to the heir, and consequently the heir took by descent as his better title. This, it should seem, is the point determined by Hurst v. Winchelsea.

In the opinion of Mr. Fearne (b), the rule has not any application, in those instances in which the ancestor has the freehold merely as a trustee; taking no BENEFICIAL INTEREST in that.

estate.

This position of Mr. Fearne, seems equally, questionable. It supposes that the ancestor has the beneficial interest of the limitation to his heirs, merely in respect of, and because he takes a beneficial interest under the limitation to himself; and assumes it as a settled point, that the law recognizes the trust of the estate of freehold limited to the ancestor; while resorting to first principles of law, and the spirit of the rule, the declaration of trust, annexed to the limitation of the freehold to the ancestor, does not appear to make any difference. It is not clear that the law can take any notice of this equitable interest; and if it recognize that interest, still, in any point of view, the two limitations are EQUALLY THE OBJECTS OF THE RULE, as a rule of tenure.

These gifts involve every reason which made it necessary to frame the rule; for if this case had happened while wardship and other fruits of (b) Butler's Fearne, p. 39.

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seigniory were the consequences of the tenure, it would have been equally as injurious to the lord, that the tenar should take by purchase, as if the ancestor had received the freehold, discharged from the trust. And to allow that the rule does not extend to a case with these circumstances, is to depart from the terms of the rule, and the spirit of the same, so far as that spirit can now be collected; and to introduce an equitable circumstance, in opposition to the legal effect of a conveyance.

Nor is the case of Moor and Parker (c) (the leading authority for the position, that the several limitations to the ancestor and his heirs, must be contained in, or mediately or immediately owe their effect to, the same instrument,) over-ruled by the determination of Hayes and Ford (d). The latter case arose on a devise by a man to the heirs male of his brother N's sons, after, and in remainder of, a limitation to his brother W and his heirs males; and the testator, by a schedule annexed to his will, and referring thereto, and, by a special verdict, found to be part thereof, and purporting to be an account of the manner in which he had disposed of his property, said, "And for want of his brother I's having sons, then to his brother N's sons, and for want of sons, then over;" and on an appeal from the Court of King's Bench in Ireland, (where it was held, that the sons of N took (c) Supra, Ld. Raym. 37. (d) a J. Bl. Rep. 698.

only an estate for life,) to the Court of King's Bench in England, it was determined that a son took an estate-tail. This determination was pronounced, expressly, on the ground, that by the will, as explained by the schedule, the son took an estate for life by implication, and that estate attracted to him the benefit of the limitation to his heirs males: so that the court assumed it to be a fact, that the will and schedule were in legal intendment, several parts of the SAME instrument, and that the words of one paper, might be called in aid of the construction, and in order to the exposition, of the words in the other paper.

So as the preceding estate be of freehold, it is immaterial, whether the same be for life or in tail, or for the life of the party, or the life of any other person, or for the joint or several lives of the party and some other person; or be to two persons jointly, though the limitation be to their heirs as tenants in common (ef); or be absolute, as for life certainly; or have a collateral determination, as during widowhood; or, as hath been already noticed, arise by express limitation, implication of law, or resulting use.

And though the estate be determinable on an event which may happen in the life-time of the ancestor (g); as to A and B for the life of C,

(ef) 9 Mod. 292.

(g) Fearne, 33; Perk. § 337; see Cases contra, Butler's Fearpe, 30; and Distinctions, infra.

remainder to the right heirs of A, or to a woman during her widowhood (h), remainder, after her DECEASE, to her heirs of her body; so that the particular estate of freehold limited to the ancestor, may determine in his life-time; in the first example, by the death of C; and in the second example, by the marriage of the widow; and consequently, with a view to both these cases, before there can be any one to fulfil the character of heirs, in relation to the tenant of the estate of freehold, the rule will apply.

Jones said, "this remainder, to a widow, was contingent (i);" but this is an opinion which should not be followed without very mature 'consideration.

Indeed, Sir William Grant seems to have been of a contrary opinion in Curtis v. Price (h). He observed, "If the proposed construction be adopted, then the remainder to the heirs of the body of Eleanor Barry will be not contingent but rested, and will unite with the estate for life. I am taking that for granted, that it will unite, though it was in some degree argued, but not pressed, that, as her estate is to terminate in case of her second marriage, the two estates could not unite so as to vest a complete estatetail. That point is quite at rest; for all that

(h) Merrel and Rumsey, Raym. 126; Curtis v. Price, 12 Ves. 89.

(i) 1 Siderf. 207; Butler's Fearne, 30.

is required by the rule in Shelley's case is, that the ancestor shall take an estate of freehold, and afterwards, in the same conveyance, an estate shall be given to his heirs. The estate, during widowhood, is an estate of freehold; and the possibility that it may terminate in the life of the widow, and before there can be an heir, is no objection."

Nor is it of any importance that the ancestor may or may not be living at the time when the gift to his heirs is, by the words introducing that gift, to take place (k); as to two persons who are husband and wife, during their joint lives, and, after the decease of either of them, to the heirs of the body of the wife begotten by the husband; so that the wife may die in the life-time of her husband, or survive him; and if she survive him, her ESTATE OF FREEHOLD will have determined in her life-time.

Nor that the ancestor must die, before the object of the gift to the heirs can be ascertained, or, in other words, before it is certain, that he, in particular, is the person to whose heirs the limitation is made (1); as to A and B, so long as they jointly together live, remainder to the right heirs of him that dieth first.

Although the object of that gift cannot be ascertained till the death of one of the tenants

(k) Merrel and Rumsey, 1 Keb. 188; Raym. 126; Siderf. 427; 4 Bac. Abr. 301.

(1) Fearne, 32, 33; 1 Inst. 378.