Notre Dame Law Review Volume 73 | Issue 1 Article 11 6-1-1999 Judicial Overkill in Applying the Rule in Shelley's Case William A. Reppy Jr. Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation William A. Reppy Jr., Judicial Overkill in Applying the Rule in Shelley's Case, 73 Notre Dame L. Rev. 83 (1997). Available at: http://scholarship.law.nd.edu/ndlr/vol73/iss1/11 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. JUDICIAL OVERKILL IN APPLYING THE RULE IN SHELLEY'S CASE William A. Reppy, Jr.* I. INTRODUCTION The Rule in Shelley's Case holds that when 0 conveys "to A for life then to A's heirs," A gets a fee simple absolute and his would-be heirs not even a future interest. O's intent that A get only a life estate is frustrated. The respected Simes and Smith treatise states that courts sometimes look for "a pretext to cut down the scope of the Rule in Shelley's Case."' The thesis of this Article is that-far more fre- quently-just the opposite is occurring. Perhaps to make a display of their willingness to carry out the judicial duty of enforcing a much- maligned and intent-defeating rule, courts are erroneously holding Shelley's Rule applicable to limitations in remainder that, upon cor- rect analysis, are outside the Rule's scope. II. THE RuLE IN SHELLEY's CASE: ITS HISTORY, ITS NOW-IRRELEVANT PoLicY BASES, AND ITS PRAGcAL APPLICATION A. The Rule Dates from the 14th Century and Probably Was Rooted in . JudicialRespect for the Incidents of Feudal Tenures The Rule in Shelley's Case refers, linguistically, to the 1581 deci- sion in Wolfe v. Shelley,2 but the concept that what looks like a remain- * Charles L.B. Lowndes Professor of Law, Duke University. A.B., J.D., Stanford University. For their useful comments on a draft of this Article, the author thanks John V. Orth, William Rand KenanJr. Professor of Law, University of North Carolina, and Robert R. Wright I, Donoghey Distinguished Professor of Law, University of Arkansas at Little Rock. Chief student research assistant for this Article was Anthony Prisco. Research assistance was also provided by Nelson Reid, Aaron Rugh, and Ward Connolly. 1 LEwis M. SMsEs & ALLAN F. SMITH, THE LAW OF FuTuR- ITEREsrs § 1549, at 453 (2d ed. 1956). For such a case, see Jones v. Stone, 279 S.E.2d 13 (N.C. Ct. App. 1981), described in infra text accompanying note 205. 2 76 Eng. Rep. 206 (K.B. 1581). The facts of the case are also described in vari- ous other sources. See, e.g., Benton v. Baucom, 135 S.E. 629, 631 (N.C. 1926); Norman Block, The Rule in Shelley's Case in North Carolina, 20 N.C. L. REv. 49, 50-51 (1941); NOTRE DAME LAW REVIEW [VOL. 73:1 der conveyed to the life tenant's heirs as purchasers3 is actually language of limitation creating a fee in the apparent life tenant has 4 been traced to an English decision, Abel's Case, decided in 1324. Under feudal concepts of this time, if overlord 0 had enfeoffed un- derlord A "and his heirs" in a livery of seisin ceremony so that A ac- quired an estate in tenure, holding of 0, the "and his heirs"5 signified that 0 also consented to have A's heir, upon A's death, succeed as underlord, holding under 0 (or O's heir if 0 had died) in a position of fealty. One of the most costly6 incidents of feudal tenure that an underlord owed his immediate overlord was the relief, payable at the former's death, as the cost of the overlord's acceptance of the un- derlord's heir as the decedent's successor in the tenurial chain. For some reason, the old courts were unwilling to expand the law to make Annotation, Note on the Rule in Shelley's Case, 29 L.R.A. (N.S.) 963, 968-69 (1911) [hereinafter Note]. For an interesting peek at the historical, political, social, and religious underpin- nings of the case see A.W. BRIAN SIMPSON, LEADING CASES IN THE COMMON LAW 13-44 (1995). 3 "Purchasers" means persons who take an estate other than by intestate succes- sion; the concept does not involve payment of money or other consideration. See 1 HERBERT THORNDIKE TnFANY, THE LAW OF REAL PROPERTY § 24 (BasilJones ed., 3d ed. 1939). Donees and devisees are purchasers; they take "by purchase," and the lan- guage of an instrument describing them constitutes "words of purchase." Heirs tak- ing by intestate succession are not purchasers. See id. § 28. 4 Y.B. 18 Edw. 11 577 (1324), cited and discussed in RESTATEMENT OF PROPERTY § 312 cmt. a (1940); see also Note, supra note 2, at 977 (discussing Abel's Case but dating it as 1325). SIMEs & SMITH, supra note 1, § 1542, trace the Rule back to 1366 and state that it "probably" had earlier roots. 5 Under the principle of primogeniture, it was expected that A's heir would be his eldest surviving son. Hence the "s" in "heirs" indicated that the overlord was ac- cepting not only A's heir, A, Jr., to assume a position of fealty under him, but also A III, as heir of A, Jr., A JV-for an unlimited number of future successions. See SImEs & SMITH, supra note 1, § 1543. 6 See Society Nat'l Bank v.Jacobson, 560 N.E.2d 217, 221 (Ohio 1990); SIMES & SMITH, supranote 1, § 1543 (describing relief as well as some other feudal incidents); John V. Orth, Requiem for the Rule in Shelley's Case, 67 N.C. L. REv. 681, 682 (1989); James A. Webster, Jr., A Relic North Carolina Can Do Without-The Rule in Shelley's Case, 45 N.C. L. REV. 3, 18 (1966); Note, supra note 2, at 980. There were incidents of feudal tenure in addition to the relief that was imposed on underlords who took by intestate succession, and some authorities state that the reason for Shelley's Rule was to eliminate a device to avoid, not the relief in particu- lar, but all such incidents. See Wool v. Fleetwood, 48 S.E. 785, 789 (N.C. 1904); King v. Beck, 15 Ohio 559, 563 (1846); RESTATEMENT OF PROPERTY § 312 cmt. a (1940); 1 AMEmCAN LAW OF PROPERTY § 4.40, at 478-79 (A. James Casner ed., 1952) [hereinaf- ter AMERICAN LAW] (mentioning the incidents of wardship, marriage, and primer sei- sin, which did not attach when underlord took by purchase); Addison M. Dowling, Rationale of the Rule in Shelley's Case in Indiana, 13 IND. LJ. 466, 470-71 (1938). 1997] RULE IN SHELLEY'S CASE the relief payable when A, Jr. took his father's place in the tenurial change by grant, either directly to him by name or as the heir in an apparent limitation in remainder to the heirs of A. Instead the grant to A, Jr. by name was held a fraud on the overlord,7 forcing A, Jr. to take by succession; and what is now called Shelley's Rule treated "and his heirs" as language of limitation, giving A a fee and also forcing A, Jr. to take by succession and to pay a relief. The relief was abolished in 1660,8 but Shelley's Rule remained part of the common law in Eng- land until 1925. 9 Another theory states that old English courts developed Shelley's Rule out of fairness to creditors of the life tenant.10 The notion is that if Lord A enfeoffed a straw person who in turn promptly enfeoffed A for life, remainder to A's heirs, nothing really happened if this were given literal effect except to limit A's creditors to the seizing of an estate measured by his life. This was so because (1) A could not devise the land (until the Statute of Wills was enacted in 1540), and (2) as a practical matter, A was not going to convey the land outside the fam- ily. Absent an attempt by A to convey intervivos the estate to A, Jr.or to A, Jr.for life with remainder to his heirs, A was going to let it pass by succession to A, Jr.his eldest son." 7 See RESrATEMENT OF PROPERTY § 314 cmt. j. (1940) (explaining that a devise to named person who turned out to be heir of conveyor was ineffective as a device to avoid feudal incidents); see also George B. Young, The Rule in Shelley's Case in Illinois:A New Analysis and Suggestionsfor Repea 45 Ii.L. L. REv. (NoRaTwEmRN) 173 (1950). 8 See Orth, supranote 6, at 683. 9 Law of Property Act, 1925, 15 Geo. 5, ch. 20, § 131, at 661 (Eng.). 10 Doyle v. Andis, 102 N.W. 177 (Iowa 1905); Benton v. Baucom, 135 S.E. 629, 630 (N.C. 1926); Williams v. Houston, 57 N.C. (4Jones Eq.) 268, 270 (1858) (finding that the Rule's purpose was to prevent "manifest fraud of the rights of third persons"); see also Myers v. Myers, 190 N.W. 491, 492 (Neb. 1922) (stating that the purpose was to avoid restraint on alienation placed on a person who was effectively sole owner). Abel's Case of 1324, said by the RESrATEMENT OF PROPERTY § 312 cmt.