p. 774, n. (N).

Fearne observes, that where there is a joint limitation of the freehold to several, followed by a joint limitation, of the inheritance in fee-simple to them; as an estate to A. and B. for their lives, or in tail, and afterwards to their heirs, so that both limitations are of the same quality, that is, both joint, it seems the fee vests in them jointly. Fearn. Cont. Rem., 40; Ante, vol. 1, And so if the limitation of the freehold be to baron and feme jointly, remainder to the heirs of their bodies, it is an estate tail executed in them; as they are capable of issue, to whom such joint inheritance can descend. Brook. Estate, p. 75. But if the limitation of the freehold be not joint but successive, as to one for life, remainder to the other for life, remainder to the heirs of their bodies; there it seems the ultimate limitation is not executed in possession, but gives them a joint remainder in tail. Stephens vs. Bretridge, T. Raym., 36; 1 Lev., 36. And if the limitation of the inheritance be to several men, or to several women in tail, instead of fee-simple, though the freehold be to them jointly, they take several estates of inheritance; because they cannot have issue between or among them as a man and woman may. Ant. 182 b., vol. 1, p. 741, 2. And the same rule extends to other cases, where the relative situations of the grantees render the possibility of issue between or among them more remote than what is termed a simple or common possibility, or else is inconsistent with the laws of marriage. Fearn. Cont. Rem., 41. Ant. vol. 1, p. 517 n. (D). Where the particular estate is limited to A. with remainder to the heirs of A. and B. this is a contingent remainder, and not a vested estate. 2 T. R., 435; 2 Bl. Rep., 731. So if there be a limitation to the wife for life, remainder to the heirs of the body of the hus

band and wife, this is no remainder in the wife, for the freehold is limited to her alone; and as the person who is to take in remainder must be heir of both their bodies, if the wife should die before the husband, there can be no one to answer that description when the particular estate determines, because the baron cannot have an heir during his life, nor could it be involved or flow into the limitation to the feme herself, as not being confined to her own heirs; therefore the remainder is in contingency. 2 Rol. Abr., 417. Cases of the last mentioned class are distinguishable from those cases, where the limitation to the heirs is held to vest, notwithstanding the ancestor's freehold may determine in his life-time; for there the limitation is to the heirs of the body, of the ancestor only; but here it is to the heirs of the body, of the ancestor and of her baron; and though every person may so far be supposed to carry his own heirs in himself during his life, as that a limitation to them where he takes a preceding freehold may vest in himself, supra, 22b.; yet no person can be supposed to include in himself the heirs of himself, and of some body else. Fearn. Cont. Rem., 44, 45. But where the particular estate is granted to two persons, with a limitation to the heirs or heirs of the body of one of them, the inheritance is executed in the person to whose heirs it is limited. Alpass vs. Watkins, 8 T. R., 516. Limitations of this kind are said to be executed sub modo, that is, to some purposes, though not to all; for though they are so far executed in, or blended with the possession, as not to be grantable away from, or without the freehold, by way of remainder; yet they are not so executed in possession as to sever the jointure, or entitle the wife of the person so taking the inheritance to dower. Ant., 184 a., vol. 1, p. 746; and see the books cited in n. (56) there.

"The rule in Shelley's case, however, does not apply where the ancestor takes only an estate for years (another person being the grantor); for, in such case, a remainder to his heirs, or to the heirs of his body, will not vest in himself, but in such heirs, by purchase. Post, 319 b. Sir C. Tippin's case, cited 1 P. Wms., 359. Neither will it take place, unless the particular estate of freehold, and the remainder to the heirs or heir of the body, are created by the same conveyance. Cranmer's case, 2 Leon., 57; Moor vs. Parker, 1 Ld. Raym., 37; 2 Vern., 486; Doe vs. Fonnereau, Dougl., 487, 510. Venables vs. Morris, 7 T. R., 342; Fearn. Cont. Rem., 99. But as an appointment in pursuance of a power, when executed, is to be considered as if it had been inserted in the original deed by which the power of appointment was created, 7 T. R., 347; it seems, that where there is a limitation to a person for life by one deed, and the estate is afterwards limited to the heirs of his body, under an execution of a power of appointment contained in that deed, in such case the several limitations will consolidate. Fearn. Cont. Rem., 102; Prest. Ess. on Rule in Shelley's case, 57. And it is immaterial, with respect to this rule, whether the ancestor takes the freehold by express limitation, or by implication arising from the deed in which the estate is limited to his heirs, &c.; in either case the subsequent limitation vests in himself. Pybus vs. Mitford, 1 Ventr., 372.

"It may be further observed, that the rule in question is only applied to limitations in which the word 'heirs' is used, on account of the peculiar signification of that word, and the maxim that nemo est hæres viventis; so that if lands are limited to A. for life, remainder to his first and other sons and the heirs of their bodies;

or remainder to the child and children of A., or to the issue of A. and the heirs of their bodies; no more than an estate for life will vest in A., and the words son, child, or issue, will operate as words of purchase. Lewis Bowles's case, 11 Co., 30. And the rule does not extend to the word 'heir' in the singular number, with words of limitation superadded. Walker vs. Snow, Palm., 359. Nor where the estates are of different natures, as if the first limitation only gives a trust estate of freehold, and the subsequent limitation to the heirs of the body carries the legal estate. Lord Say and Sele vs. Jones, 3 Bro. P. C., 113. Nor to cases of marriage articles; which being executory are construed according to the intention of the parties, whose chief object in such agreement, is to make a provision for the issue of the marriage; therefore, where in marriage articles it is agreed to settle lands, to the use of the husband for life, with remainders to the heirs of his body, these last words are construed to be words of purchase, and to mean the first and other sons of the marriage, and the heirs of their bodies. 1 Bro. C. C., 222; Trevor vs. Trevor, 1 P. Wms., 662; 1 Ab. Eq., 387; Cusack vs. Cusack, 1 Bro. P. C., 470. And where articles and a settlement are made before marriage, and the settlement is made in pursuance of the articles, ift he words 'heirs of the body' are transcribed from the articles into the settlement, they will be altered in chancery, and the settlement will be rectified according to the intention of the articles, by making the husband only tenant for life, with remainders to the issue of the marriage. West vs. Erissey, 2 P. Wms., 349; 3 Bro. P. C., 327; 1 Collect. Jur., 463; Hart vs. Middlehurst, 3 Atk., 371; Roberts vs. Kingsley, 1 Ves., 238. So if the settlement is made after the marriage, and adopts

Vol. VI.-9.

the words of the articles. Streatfield vs. Streatfield, Forrest., 176. But this doctrine is adopted only in cases of marriage articles, and is not extended to limitations, in settlements, of the legal estate. Alpass vs. Watkins, 8 T. R., 516. And, although where articles are entered into before marriage, and a settlement is made after marriage different from those articles, the court will set up the articles against the settlement; yet, where both the articles and settlement are previous to the marriage, at a time when all the parties are at liberty, and the settlement is not expressed to be made in pursuance of the marriage articles (as in the above cited case of West and Erissey) if such settlement differ from the articles, it will be considered as founded on a new agreement between them, and will control the articles. Legg vs. Goldwire, Cas. Temp. Talb., 20; Fearn. Cont. Rem., 154; 4 Cru. Dig., 487.

"The rule, in Shelley's case, has been adopted in the construction of assignments of terms for years; and the words 'heirs of the body' have been held to be words of limitation, Peacock vs. Spooner, 2 Vern. 43, 195; Webb vs. Webb, 1 P. Wms., 132; Hayter vs. Rod, 1 P. Wms., 360; 2 Ves., 660; Theebridge vs. Kilburne, 2 Ves., 233; though the construction has been different where there were words of limitation superadded to the words 'heirs of the body.' Archer's case, 1 Co., 66; Hodsol vs. Bussey, Forrest. MSS.; S. C., 2 Atk., 89; Barnard., 199; Price vs. Price, 2 Ves., 234; Sands vs. Dixwell, 2 Ves., 652.

"2dly. Of the application of the rule of Shelley's case, in the construction of surrenders of copyholds:The rule under consideration is equally applied in construing surrenders of copyhold estates as in deeds;