Operation of the Rule in Shelley’s Case and the Doctrine of Merger
The Rule in Shelley’s Case may be stated as follows: If in a conveyance or a will a freehold estate is given to a particular person, and, in the same conveyance or will, a remainder is created in the heirs or the heirs of the body of that particular person, that particular person takes both the freehold estate and the remainder. See Moynihan, Introduction To The Law Of Real Property 138.
Thus, in order for the Rule to operate:
1. There must be a grant of a life estate (or, in theory, a fee tail) to a particular person, and
2. In the same instrument, a remainder must be given to the heirs or heirs of the body of the life tenant.
EXAMPLE
Grutz conveys: “To Dr. Butcher for life, remainder to Dr. Butcher's heirs.”
By virtue of the Rule in Shelley’s Case, Dr. Butcher takes both a life estate and a vested remainder in fee simple absolute. Then, under the doctrine of merger, Dr. Butcher’s life estate and vested remainder merge into a present fee simple absolute.
The doctrine of merger is not part of the Rule in Shelley’s Case; in our example it works in tandem with the Rule in Shelley’s Case to give Dr. Butcher a fee simple absolute. The doctrine of merger provides that whenever two successive, vested estates are owned by the same person, the smaller of the two estates will be absorbed by the larger. Thus, in our example, Dr. Butcher had both a life estate and a vested remainder following the life estate under the Rule in Shelley’s Case, and, under the doctrine of merger, the life estate was merged into the vested remainder thereby resulting in a present fee simple absolute.
The separate and distinct role of the doctrine of merger from the Rule in Shelley’s Case is demonstrated by the following example:
Grutz conveys: “To Dr. Butcher for life, remainder to Dr. Paine for life, remainder to the heirs of Dr. Butcher
Under the Rule in Shelley’s Case, Dr. Butcher has both a life estate and the ultimate remainder in fee simple absolute. However, the doctrine of merger does not apply–Dr. Butcher’s two vested estates are not successive, because Dr. Paine has an intervening vested remainder for life. However, if Dr. Paine dies before Dr. Butcher, his remainder for life will terminate, and Dr. Butcher’s life estate will then merge into his vested remainder (since there is no longer an intervening estate) and result in a fee simple absolute
