rule: for a man may have in his own right both an estate-tail and a reversion in fee; and the estate-tail, though a less estate, shall not merge in the fee. For estates-tail are protected and preserved from merger by the [178] operation and construction, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate. But, in an estate-tail, the case is otherwise: the tenant for a long time had no power at all over it, so as to bar or to destroy it; and now can only do it by certain special inodes, by a fine, a recovery, and the like: it would therefore have been strangely improvident, to have permitted the tenant in tail by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue: and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee.*

NOTE OF THE AMERICAN EDITOR TO CHAPTER XI.

(36 a) The remainderman is seised of his remainder at the same time the termor is possessed of his term, page 166.

In strict logic, there can be neither remainder nor reversion after a term for years. As Blackstone here shows, "the freehold is immediately created [or in case of a reversion is reserved] and vested in [the remainderman] B during the continuance of A's term of c See pag. 116.

a 2 Rep. 41. 8 Rep. 74.

b Cro. Eliz. 302.

*Cited, 6 Conn. 389; 2 Dutch. (N. J. L.) 582; 1 Brev. 363.

years." Hence B's estate is an estate of freehold in possession, whether it comes to him from another by livery of seisin made to the termor in his behalf, or being in him is not parted with, when he creates the term him self. Hence, also, there can be no contingent remainder after such a term, any more than there possibly can be such a thing as a contingent reversion. If this rule had always been recognized, the entire doctrine of remainders would be greatly simplified: it would have to deal only with freehold estates, the rules of which are comparatively simple. But it is altogether too late to correct the usage, which dates at least from the thirteenth century, as Britton shows, and from a time when seisin was predicated as freely of terms and other chattel interests, and even of personal chattels, as it has since been of freeholds. This is beginning to be well understood: indeed the chief difficulty now seems to be, to convince historical students that there is no mystery in this original use of the word "seisin " for mere possession. But it will assist the beginner, materially, to remember that all the rules for remainders after chattel interests in land really belong to estates that are already freehold, and in seisin, although the mere possession is in the termor: or in other words, that so far as the doctrine of remainders is concerned, the term of years may be regarded as a nullity, or as a mere contract with the real owner of the land, not an estate in it. (See note 35, page 253.)

(37) Vested remainders are where the estate is invariably fixed, to remain to a determinate person after the particular estate is spent, page 169.

This definition requires that the person who will certainly take at the end of the particular estate (provided he lives until then), be now determined. But the definition given by Kent, and repeatedly approved by the United States Supreme Court and other American

courts, is that "it is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder." (4 Com. 203.) The difference between these two definitions is marked, though it has often been overlooked in the discussion of an intricate subject. Under the latter, every remainder is vested if the remainderman is capable of taking at this moment, should the estate fall in. Blackstone requires in addition that he should also be certain to take whenever it does fall in; provided, of course, he lives long enough. Any other contingency than his death, which may prevent him from taking at that time, is fatal to the vested character of the remainder: while, according to the other rule, "if there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate." (Lourie, J., in Manderson . Lukens, 23 Pa. St. 31; 62 Am. Dec. 312; Carver v. Astor, 4 Peters, 190.)

In New York and some other states the latter rule is now adopted by statute, and of course is binding. For the doubts created by overlooking the change thus made, compare Olney v. Hull, 21 Pick. 311; Thomson v. Ludington, 104 Mass. 193; Moore v. Littel, 41 N. Y. 66; Doe v. Considine, 6 Wall. 458.

(37 a) Contingent remainders may be defeated by destroying or determining the particular estate, page 171. But a mere disseisin of the particular tenant will not destroy them, so long as he retains a right of entry. (Fearne on Remainders, p. 286.) Of course the tenant's alienation that merely transfers his estate to another will not destroy the remainders. Aliter, if he destroys the estate, as by feoffment. But it is questionable whether this rule applies in states where the tenant's alienation is by statute good only to the extent that he may legally transfer, and does not work a forfeiture.

(37 b) An executory devise, page 172.

Mr. Fearne objects to this definition as too broad, because it covers also contingent remainders given by will, and would substitute for it: "Such a limitation of a future estate or interest in lands or chattels (though in the case of chattels personal it is more properly an executory bequest), as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law." (Civil Remainders, p. 368; Coleman's Epitome, p. 75.)

But the American student must remember that in many states by statute such interests may be created by deed as well as will, and should properly be termed executory estates" rather than executory devises. In other respects Blackstone's description applies to them.

66

CHAPTER THE TWELFTH.

OF ESTATES IN SEVERALTY, JOINT TENANCY, COPARCENARY, AND COMMON.

We come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways [see note 38, page 314]; in severalty, in joint tenancy, in coparcenary, and in common.

I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants.

[180] II. * An estate in joint tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grants an estate is called an estate in joint tenancy, and sometimes an estate in jointure, which word as well as the other signifies 3an 5 union or conjunction of interest;* though in common speech the *-* Quoted, 14 Wend. 336.

a Litt. 277.

5 Prior editions read "a."