The Rule in Shelley’s Case

Mary Shelley has nothing to do with this but it is something of a Frankenstein’s monster, because it’s the kind of law that keeps the owner of land from doing with his farm or house or beach property what he thought he did.

First recorded as a doctrine in the case of Wolfe vs Shelley in Elizabethan England (1581)  the rule transmutes the grant of a life estate to a person, remainder to his lawful heirs to fee simple absolute in the holder of the life estate. In other words he holds the whole of the title, and not just for his life.

Say a farmer grants his son a life estate in the farm, remainder to his heirs, meaning his grandchildren. The Rule in Shelley’s Case makes this grant a grant to the son without restrictions as to what he can do with the land. If he sells off the farm to Wal-Mart there isnt anything the farmer or the grandchildren can do about it.

It was the rule in Washington until 1961 when judges began it’s erosion in cases of interpretation of wills. By 1995 the whole thing was over, the legislature abolishing the rule for all transfers whether the farmer is alive or dead.

Apparently the orginal idea was to favor the passing of land by inheritance, rather than gift. Judging by the amount of asphalt covering prime bottom land in the Puget Sound basin I think we need to return to the Rule and Shelleys case, and its closely regarded cousin, the Doctrine of Worthier Title.

It certainly would make the practice of law more fun to have all these ancient terms to throw around in court and less parking lots here in our lovely state. Instead the Middle Ages finally ended in the second decade of my law practice and we are instead trapped in some dismal economic model that allows all property to go to the highest bidder.

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