Steve Earle and the Dukes at The Waiting Room Omaha (picture by yours truly)
DUNCAN-PROPERTY
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.
One last hypo: Suppose that Grutz conveys Blackacre "to A for life, then to A's children and their heirs."
Does the Rule in Shelley's case apply?
No. The remainder must be to the "heirs" of the particular person. Thus, the remainder to "A's children" does not trigger the Rule. What, then, is the state of the title? It depends. On what?
