1. Where a husband and wife conveyed lands in trust for the sole
and separate use of the wife and for the children of the two
parties during the wife's life in absolute property, as if she were
a feme sole,
and free and clear of
"any right, title, and estate, whether as tenants by the curtesy
or otherwise, of her present or any future husband, and from his
control and from any liability for his debts, and upon trust and to
hold and dispose of and convey the said premises in such manner and
to such uses, interest, and purposes as the wife may from time to
time direct by any last will and testament or other testamentary
writing of what form soever which she, the wife, notwithstanding
her present or any future coverture, shall and may direct, limit.
and appoint, and in the absence of any such direction, limitation,
or appointment, or subject thereto, or remainder after her death,
to her heirs-at-law of the wife,"
the Rule in Shelley's Case does not apply. A fee simple is not
created in the wife, and a deed by her, her husband, and her
trustee conveying or pledging the property is void and may be set
aside by herself and her children. She could pass title only by a
testamentary writing of some form.
Thomas Green, by deed dated January 15th, 1867, conveyed certain
real estate in Georgetown, D.C., to James Green, in fee, in trust.
The trust was in these words:
"For the sole and separate use of Catharine Green (wife of the
said Thomas) and for the children of said Thomas Green and
Catharine Green, during her life, in absolute right and property,
as if she was a feme sole,
and free and clear of any
right, title, and estate, whether as tenants by the curtesy or
otherwise, of her present or any future husband, and from his
control and from any liability for his debts, and upon trust and to
hold and dispose of and convey the said premises in such manner and
to such uses, interest, and purposes as she, the said Catharine
Green, may from time to time direct by any last will and
testament, or other testamentary writing of what form soever
which she, the said Catharine Green, notwithstanding her present or
any future coverture, shall and may direct, limit, and appoint, and
in the absence of any such direction, limitation, or appointment,
or subject thereto, or remainder after her death, to her
heirs-at-law of the said Catharine Green. "
Page 90 U. S. 487
On the 21st of November, 1868, James Green, as trustee, and
Thomas Green and Catharine Green united in a deed to one Ward
whereby they conveyed to him in fee simple the premises described
in the deed first set forth, in trust to secure the payment of a
note for $6000, payable six months from date, with interest, and
bearing even date with the deed, payable to the order of Lewis
Wells. At this time, Mr. and Mrs. Thomas Green had two daughters,
both under age.
This note having matured and continuing unpaid, Ward, at the
request of Wells, advertised the premises for sale, and was
proceeding to a sale thereof under the power contained in the deed
Hereupon Mrs. Green and the two infant daughters by their
guardian filed a bill in the court below -- the bill in this case
-- against the trustee, the husband, and Ward, alleging that the
deed to Ward was improvidently executed; that Mrs. Green had no
power to appoint or limit the fee simple of the premises therein
described by deed, but only by a last will and testament or a
testamentary writing; that the deed to Ward was accordingly void;
that the powers contained in it were unauthorized by the deed of
trust to James Green for their benefit; that the title obtained
under the deed to Ward would impair the equitable title of the said
Mrs. Green and of her children under the deed for her and their
benefit, and asking that the deed to Ward might be set aside and an
injunction issue restraining Ward from selling under the alleged
authority of the deed to him.
The trustee and the husband answered admitting the facts as
Ward answered denying that the deed was void. His position was
that under the Rule in Shelley's case, the wife became, by the
conveyance in trust to James Green, the owner of the property in
fee simple; that the estate granted to her for life, and the
remainder to her heirs-at-law, being both equitable estates, united
in her as an estate of inheritance, and without reference to the
exercise of the power of appointment; that, being the owner of the
fee, her deed to Ward carried the full title to him.
Page 90 U. S. 488
The court below decreed a perpetual injunction and that the
defendant Ward be absolutely enjoined and prohibited from selling,
or attempting to sell the property described in the trust deed
except the life interest of Mrs. Green in one-third thereof, and
that the defendants below pay the costs of suit.
From this decree the defendants appealed to this Court.
MR. JUSTICE HUNT delivered the opinion of the Court.
In Shelley's case, [Footnote
] the rule is thus laid down:
"That when the ancestor, by any gift or conveyance, taketh 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, the heirs are words of limitation of the estate and not words
Mr. Preston uses the following language, which is approved by
Chancellor Kent: [Footnote
"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."
The trust deed of Thomas Green of January 15th, 1867, creates
the following trusts, to which the premises are subjected:
1. To the use of Catharine Green and the children of Thomas
Green and herself during the life of Catharine Green. There are two
such children. Catharine and her two children are therefore joint
tenants or tenants in common of the estate during the life of
Catharine. The words
Page 90 U. S. 489
"as if she were feme sole,
" "free and clear of any
right or control of her present or future husband," do not define
the estate, but have the effect simply to exclude any possible
claim on the part of her husband or his creditors.
2. To such uses and purposes as the said Catharine may, by
testamentary writing, limit and appoint.
3. In the absence of such limitation, or subject thereto, or
remainder after her death, to the heirs-at-law of the said
It is contended that these trusts create an estate in fee simple
in Catharine Green which, by her deed to Mr. Ward, has become
vested in him.
The Rule in Shelley's case is applicable to trust estates where
both the life estate and the remainder are of the same character.
The legal effect of the union of the estates, as declared by that
rule, does not occur where the life estate is of an equitable
character and the remainder is a legal estate, or vice
Both estates must be of the same character. [Footnote 3
] The Court of Chancery does
not, however, consider itself tied up to an implicit observance of
the rule in respect to limitations which do not immediately vest
the legal estate. [Footnote
A distinction is also given by Mr. Fearne to the effect that a
trust or use created by deed will often be held to create an estate
in the heirs named which cannot be cut off by the act of the tenant
for life, when the same effect would not be given to an estate
created by like language in a devise. The reason given,
that in the former case there may often occur a
valuable consideration in the intention to make provision for the
issue of an intended marriage does not exist when the transaction
arises after marriage, but still the rule is to some extent a rule
of property. [Footnote 5
Mr. Cruise, however, says that the same mode of construction is
adopted in case of deeds as in case of devises, [Footnote 6
] and so is the case of Ayer v.
After commenting on various authorities on this subject,
Page 90 U. S. 490
Mr. Fearne adds:
"This brings us to those cases of limitations in trust, in
decreeing the execution of which the Court of Chancery so far
departs from that which would be the legal operation of the words
limiting the trust, if reduced to a common law conveyance, as to
construe the words heirs of the body of the cestui que
although preceded by a limitation for life, as words of
purchase and not of limitation."
Such was the case of Papillon v. Voice,
] where A. devised a sum of money
to trustees, in trust, to be laid out in lands and to be settled on
B. for life, remainder to trustees during the life of B., to
support contingent remainders, remainder to the heirs of the body
of B., remainder over with power to B. to make a jointure. It was
decreed that B. should have but an estate for life in the lands so
to be purchase, and Lord Chancellor King declared that the
diversity was between the will passing a legal estate and leaving
the estate executory,
so that the party must come into the
Court of Chancery in order to have the benefit of the will, that in
the latter case the intention should take place and not the strict
rules of law. [Footnote 9
The case of Bagshaw v. Spencer
] is quite instructive in its
resemblance in some of its facts, to the present case, and in the
principle finally announced by Lord Hardwicke, viz.,
there is a distinction between a trust in equity and a mere legal
estate, and that in the latter class the words must be taken as
they stand according to their legal determination, while a
different rule prevailed in regard to trusts. [Footnote 11
Trusts are the mere creatures of confidence between party and
party, totally distinct in almost every quality from those legal
estates which are the subjects of tenure. They are in their nature
independent of tenure, and therefore not the object of those laws
which are founded in the nature of tenure. They are rights arising
solely out of the intent of the party who created them, and
therefore such intent could be the only guide in the execution of
them. [Footnote 12
Page 90 U. S. 491
Ware v. Richardson
] is a case like the one before us, governed
by the laws of Maryland and strikingly akin to it in its main
facts. In that case, Mrs. Kennedy,
"in consideration of the natural love and affection which she
hath and beareth towards Elizabeth Richardson, and in consideration
of five shillings to her paid by Samuel N. Ridgely, did grant,
bargain, sell, enfeoff, and convey to the said Samuel, his heirs
certain property described, to have and to hold in trust, first,
that Mrs. Kennedy should enjoy the same during her own life, and
after her decease, upon the further trust, that Elizabeth
Richardson, during her natural life, should hold and enjoy the
same, the rents, issues, and profits thereof, the same to convert
to her own proper use and benefit, as if she were feme
without let or interference from her husband or
liability for his debts,
"and from and immediately after the death of the said Elizabeth,
then to, and for the use and benefit of the legal heirs and
representatives of the said Elizabeth, and to and for no other
intent and purpose."
As in the present case, it was there contended that, by the Rule
in Shelley's Case, Elizabeth Richardson took a fee, and that the
estate was liable for her debts. The point was elaborately argued
by Mr. W. H. Norris in support of this contention, and Mr. T. S.
Alexander in opposition thereto, before the Court of Appeals of
Maryland. That court held (Mr. Justice Mason delivering its
opinion) that this deed created but an equitable life estate in
Mrs. Richardson, and that it executed the legal estate in the
heirs; that where the estate limited to the ancestor is an
equitable or trust estate, and the estate limited to the heirs is
an executed use or a legal estate, the two will not coalesce in the
ancestor. The Rule in Shelley's Case was held not to be applicable,
and the estate was adjudged to have passed upon her death to her
children, Charles and Robert.
The cases of Doe v. Considine,
] Croxall v. Shererd,
] and of
Daniel v. Whartenby
] also bear upon the question before us.
Page 90 U. S. 492
In the last case, the question arose under a devise
"to Richard Tibbitt during his natural life, and after his death
to his issue by him lawfully begotten of his body, to such issue,
their heirs and assigns forever,"
with limitations over. It was held that the Rule in Shelley's
Case did not govern, and that Richard took a life estate only. It
is not as pointed in its authority as the case of Ware v.
for the reason 1, that the question arose upon a
will and not upon a deed; 2, that the limitation was not to
Richard's heirs simply, but to a class equivalent to the children
To adjudge that the deed of January 15th, 1867, transferred and
conveyed this property in fee to Mrs. Green, so that by the common
law her husband would have had as tenant by curtesy an immediate
and continuing right to the enjoyment of the rents and profits
during his life, and so that her two children would have in it no
estate legal or equitable, would be in manifest violation of the
intention of the parties to that deed. A rule of the law of tenure
which would require us so to hold would work a monstrous perversion
of justice. We are satisfied that there is no such rule and that a
compliance with the evident intention of the parties is in
accordance with the rules of law.
1 Preston on Estates, p. 263; 4 Kent's Commentaries 215.
Fearne on Remainders 62; Ware v. Richardson,
Fearne on Remainders, 3d ed., p. 61.
1 Cruise's Digest of Real Property 459.
16 Pickering 330.
2 Peere Williams 471.
1 Vesey 142, S.C.,
2 Atkyns 246, 570, 577.
3 Md. 505.
73 U. S. 6
72 U. S. 5
84 U. S. 17