it by the court in a decision which has since been known as the rule in Shelley's Case. SECTION 81. THE RULE IN SHELLEY'S CASE. The two most famous statements of the rule in Shelley's Case are those by Preston and Kent which were as follows: a recovery with single voucher, see Fearn. Post. Works, p. 336; if against the tenant of the freehold, and he vouch over the tenant in tail, and the tenant in tail vouch over the common vouchee, it is called a recovery with double voucher; and so on, according to the number of persons vouched. And when an intail is to be barred, it is always proper, for the reasons before mentioned, to suffer a recovery with a double voucher. Watk. Conv., 134. Such a recovery, in which the tenant in tail is vouched, and is vouched over, will not only bar an actual estate tail, of which he is seised, but it will bar all estates tail which have been devested, discontinued, or previously aliened. Salk., 571; Brook. Tail, pl. 32. And it may bar several estates tail, or the right to several estates tail, by one and the same operation. Baxton vs. Lever, Cro. Eliz., 388, 1 Ves., 253. It will also bar all remainders and reversions expectant thereon, even though the estate tail has been previously barred by a fine with proclamations levied by the tenant in tail. Sheffield vs. Ratcliffe, 2 Rol. Rep., 418. And the better opinion seems to be, that a recovery suffered by the issue in tail after the death of the ancestor, and after a fine with proclamations levied by the ancestor, which has effectually barred the estate tail, will bar all remainders and reversions, which are, or were expectant on the estates tail. Fearn. Post. Works, 442; 1 Prest. Conv., 126; 1 Prest. Abst., 394, 395. With respect to the effect of a recovery, it may be further observed, that the recoverer, generally speaking, gains a clear and absolute fee in the premises recovered. But where the person by whom the estate tail was created, had a determinable or defeasible fee, the recovery cannot do more than acquire the ownership for the whole of that determinable or qualified fee. 1 Prest. Conv., 141. And when a tenant of a remote estate tail suffers a common recovery, in which he is vouched, and vouches over, the effect of this recovery will be merely to bar his own estate tail, and the remainders and reversions expectant thereon (3 Co., 6, 8 T. R., 10), and all conditions and collateral limitations annexed to his estate; it will not affect prior estates tail, or any other prior estates. Smith vs. Clifford, 1 T. R., 738. And the fee acquired by such recovery may be barred by a recovery afterwards suffered by the tenant of a prior estate tail. 1 Prest. Abst., 394. So when the entail is of a subject which has a limited duration, as a rent-charge, created de novo, and limited for an estate tail, without any remainders over, the recovery of tenant in tail cannot enlarge the estate beyond the period prescribed for its duration. 1 Prest. Conv., 140; Ante, vol. 1, p. 448 (n. F). It is also observable, that the estate recovered is not subject to any charges "In any instrument, if the freehold 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 but to those of the recoveree. Hence it is preferable, in some cases, to a fine, as a fine lets in the incumbrances of the ancestors as well as those of the cognizers. Watk., 134, Ante, p. 610 (n. 1). On the other hand, a fine is, in some instances, preferable to a recovery, as the former operates as an estoppel by the statute, where a recovery would not estop. Pig. Rec., 32, 34, 55; 2 Cru., 271; Plowd., 515, Ante, p. 610 (n. 2). But no tenant in tail can, by suffering a common recovery, bar any charges which are an incumbrance on his own estate, nor any estates derived out of his own estate tail. On the contrary, he may give stability to these estates and charges, by suffering a common recovery. Goodright vs. Mead, 3 Burr., 1703; Stapilton vs. Stapilton, 1 Atk., 2; 1 Prest. Conv., 142. With respect to the persons who may suffer recoveries.A recovery may be suffered by a tenant in fee-simple, in order to strengthen the title, Watk., 135; but it will not bar an executory devise or springing use annexed to that estate. Pells vs. Brown, Cro. Jac., 590; Palm., 131; 2 Fearn., Ex. Dev., 66, 69; Pig. Rec., 134; though a recovery by tenant in tail will bar an executory devise or springing use annexed to his estate. Page v. Hayward, 2 Salk., 570; 1 Prest. Conv., 3. So a feme covert may convey her freehold and inheritance by suffering a recovery; and no fine is necessary on account of coverture, when a recovery is suffered. 1 Prest. Conv., 34. The husband has the freehold in right of his wife, and he alone may convey the freehold to make a good tenant to the præcipe, 2 Rol. Abr., 394, pl. 4; Robinson v. Cumming, Cas. Temp. Talb., 114; Atk., 473; but the wife will not be barred unless she is vouched. 1 Prest. Conv., 56. Where the wife has the freehold by way of separate estate, she is to be considered as a feme sole, and alone is competent to make a good tenant of the freehold. 1 Prest. Conv., 34, 36. A recovery, with the concurrence of the freeholder, may be suffered by a tenant in tail, either in possession, reversion, or remainder, 2 Rol. Abr., 394; or by a person who has the right of an estate tail once vested, and which has been devested or discontinued, Maxwell's case, 2 Plowd., 8 b. 3 Co., 6; Sheffield v. Ratcliffe, Hob., 334; Lincoln College case, 3 Co., 38 b.; or, as before observed, by the heir in tail, after the estate tail has been barred by fine, or the heirs are bound by warranty. Supra, p. 614; Barton v. Leaver, Cro. Eliz., 388. But a person who has a contingent or executory interest in tail, as under an executory devise, or a springing or shifting use, cannot suffer a common recovery with effect, so as to bar either his own interest (except by way of estoppel), or the issue in tail, or those in remainder or reversion; nor can the issue in tail suffer a common recovery with effect in the lifetime of the ancestor. Apprise v. Apprise, 1 Keb., 391; 1 Prest. Conv., 142; 1 Prest. Abst., 395. The alienee of a tenant in tail, or the assignee of the crown, claiming the estate of a tenant in tail under an attainder for treason, cannot, in any case, bar the estate tail or the re of his body, he takes a fee-tail; if to his heirs, a feesimple." The rule as stated by Chancellor Kent was as follows: "When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons, to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." 5 The application and extent of the rule has been thus expressed in Coke's Institute: "The rule mentioned in the text is usually called the rule in Shelley's case. As this rule is intimately connected with the doctrine contained in the present chapter, it may be desirable in this place to consider the manner in which it is applied in the construction.-1st. Of deeds. 2dly. Of surrenders of copyholds; and 3dly, of devises. "1st. Of the application of the rule in Shelley's case in the construction of deeds. Where an estate was mainders, by suffering a common recovery. Hob., 259. And the right of suffering a common recovery is a privilege personal to the donee in tail, and his heir in tail, when heir; therefore a corruption of the inheritable blood of the issue, by the attainder of their ancestor for treason, will preIclude their right to suffer a common recovery so as to bar the remainders. Jenk. Cent., 251, Hob., 345. And attainder of tenant in tail creates a disability to suffer a common recovery, Barton's case, 2 Rol. Abr., 394; Jenk. Cent., 250; though between the crime and attainder, it should seem, that a common recovery may be suffered. Stevens v. Winning, 2 Wils., 219; 1 Prest. Conv., 140. But a recovery suffered by a tenant in tail, being an alien, will bar the remainders expectant on his estate. Leon., 84. It may be further observed, that a recovery will be good only for that portion of estate which is vested in the tenant in tail who is vouched. 4 Warvelle on Real Property, 269. Waryelle on Real Property, pp. 268-269. 4 conveyed to A. for life, remainder to the heirs, or heirs of the body of A., if the construction had been made according to the strict meaning of the words, A would have taken only an estate for life, and the remainder to the heirs, etc., of A. would have been considered as words of purchase, giving a contingent remainder to the heirs, etc., of A., according to the rule of law, that nemo est hæres viventis; but such a construction would have been attended with these inconveniences: 1st. The lord of the fee would have been deprived of the wardship and marriage of the heir, because, in that case, the heir would have taken as a purchaser, without claiming anything from his ancestor by descent. 2dly. The remainder to the heirs, or heirs of the body, being contingent until the death of the tenant for life, the inheritance would have been in suspension or abeyance: which was never allowed but in cases of absolute necessity; because the abeyance of the inheritance created a suspension of various operations of law, particularly of the remedies for the recovery of land by real actions. And 3dly. If the remainder, in those cases, had been construed to be contingent, no alienation could have taken place in the life-time of the ancestor. To obviate which inconveniences, was the origin of the rule of law, laid down in Shelley's case, viz., that 'when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee or in tail, that always, in such cases, 'the heirs' are words of limitation of the estate, and not words of purchase,' 1 Co., 104 a. Whence it follows, that such remainder is immediately executed in possession, in the ancestor so taking the freehold, and is not contingent or in abeyance. Bl. Arg. Harg. Tracts, 498, 510; 4 Cru. Dig., 470, 1. Serjeant Rolle, indeed, takes a distinction respecting this rule, by saying, that where the freehold is so limited to the ancestor, and a mediate remainder to his right heirs, that all the intermediate estates between that and the limitation to his heirs, as well as his own estate, may determine during his life, in that case the limitation to his heirs is in abeyance, because he can have no heir to take the remainder. 2 Rol. Abr., 418. But Mr. Fearne has controverted this distinction, and shown that the possibility of the freehold's determining in the life-time of the ancestor, who takes it, does not prevent the subsequent limitation to his heirs from attaching in himself. Fearn. Cont. Rem., 32; Et vid. Curtis vs. Price, 12 Ves., 89. With respect to the mode in which mediate limitations are vested, it is observable, that where the subsequent limitation is immediate, it then becomes executed in the ancestor, forming by its union with his particular free hold one estate of inheritance in possession; but where such limitation is mediate, it is then a remainder vested in the ancestor, who takes the freehold, not to be executed in possession, until, the determination of the preceding mesne estates. Fearn. Cont. Rem., 38. And where the limitations intervening between the first estate for life, and the limitation to the heirs of the body, are contingent, the estate for life is not merged, because the intervening limitations would be thereby destroyed; but the two limitations are united and executed in the ancestor only, until such time as the intervening limitations become vested; and then open and become separated, in order to admit such intervening limitations as they arise. Lewis Bowles's case, 11 Co., 79; Fearn. Cont. Rem., 42. "With regard to joint and several limitations, Mr. |