Hello Reader, this time Tabir Hukum will discuss about the rule in shelley's case.
Until the legislatures deliver us from the Rule in Shelley's Case (1581), I Co. Rep. 93b, it remains a threat to the peace of mind of law students and practitioners. As distilled from countless confused cases, the rule is this : Where a grant of a life estate to A is followed in the same instrument in fee simple to the first grantee. By the Rule in Shelley's Case, which is a rule of law, not a canon of construction, a grant "to A for life, and remainder to A's heirs" must be interpreted to give A a life estate and also a fee simple in remainder, and the heirs nothing. Put another way, the Rule treats the words "and heirs" as being words of limitation defining the estate that A receives, not words of purchase identifying the heirs as grantees. Of course, the heirs may not be done out of their expected inheritance completely. A may decide to transfer the fee simple to them inter vivos or by will, though there is no obligation to do so.
There are two requirements for the application of the Rule in Shelley's Case. One we have already seen : an attempt to create in a single instrument a life estate and a remainder in fee simple or fee tail to the heirs of the life tenant. Simply attach the following sentence to your statement of the Rule in Shelley's Case : the Rule applies only if the life estate and the remainder are of the same kind, that is, only if both are legal or both are equitable.
One further point : where O, by will, conveys land "to A for life and upon A's death to A's heirs", and A is alive at O's death, there is not doubt that the Rule in Shelley's Case applies. But if A has predeceased O, it has been argued that, with no life estate in A, the Rule cannot apply. This argument has met with substantial, but not universal, success.
If you have understood the effect of the Rule so far, you may be wondering why we say that A gets a life estate and also a fee simple in remainder. Why not say simply that A gets the fee simple ?. The answer is that the Rule in Shelley's Case will not always operate to give A the immediate fee simple. The words "mediately or immadiately" in the Rule mean that the Rule applies even if there is a grant of a life estate in between the life estate to A and the remainder to A's heirs. Thus, if O conveys "to A for life, then to B for life, remainder to A's heirs", B gets a life estate at A's death, and on B's death, A's estate gets the fee simple. There is no limit to the number of estates which might intervene between the life estate in A and the remainder to the heirs; forgetting this fact may lead practitioners to draft grants that the Rule in Shelley's Case then transforms into a result very far from that intended by the grantor. Where there is no intermediate life estate, as in the first example, "to A for life, remainder to A's heirs", A will get the immediate fee simple absolute, but only by the combined operation of the Rule in Shelley's Case and the doctrine of merger. If the owner of a life estate acquires a remainder in fee simple, the lesser estate (the life estate) is said to merge into the greater (the remainder in fee simple) giving that person an immediate fee simple.
Remember that the Rule in Shelley's Case transforms an attempted remainder in the heirs into a remainder in the ancestor. It will apply whenever there is an attempt to give a life estate to the ancestor and a remainder to the heirs - not just in grants using the wording of the two examples given thus far. But the rule applies only if the words in the grant mean the whole life of succession. If there is evidence that the grantor used the words to mean specific heirs, such as heirs of the first generation (the ancestor's children) or some other limited and defined group, then the Rule will not apply. Conversely, if by "children" the grantor meant the whole line of succession, the Rule applies. With the word "heirs" and nothing else, it would be difficult to argue that the grantor meant anything other than an indefinite line of succession, but the singular "heirs" might mean one individual. Other words that have raised problems of interpretation include "issue" and "children and their children".
It is still not uncommon, as we have already seen, to grant a life estate to one's surviving spouse and a fee simple in remainder to children or grandchildren. One can do so without attracting the Rule in Shelley's Case if one chooses one's words with the Rule in mind. The Rule originated when lords still obtained substantial benefits from the feudal incidents of relief, wardship and primer seisin that might be claimed when property passed by descent on the death of the estate holder. These incidents were avoided if the property passed by two separate grants of a life estate to the ancestor and the remainder to the heirs. The Rule, by denying the remainder to the heirs, ensured that the fe simple estate would pass by descent rather than by purchase. England abolished the Rule in the great statutory reform of real property law in 1925. No Canadian jurisdiction has been so bold, so that the inclination of practitioners to convey property to A with a remainder to A's heirs still occasions wasteful litigation.
Umpteen posts of tabir hukum about the rule in shelley's case, hopefully the writing of tabir hukum about the rule in shelley's case can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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| Figure Property Law : Freehold Estates - The Rule in Shelley's Case |
