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and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall

tions, if well founded, the following cu- manner as if the estates, having been rious results would flow, that if lands originally limited to different persons, were limited to A. for his own life, re- had subsequently come together (Godb., mainder to B. for his own life, and A. 52), but with two exceptions : first, conveyed his estate to B., it would where a contingent estate is limited bemerge; but if B. conveyed his estate to tween the particular estate and remain. A. there would be no merger; whereas der; and, secondly, where either the if the limitation were to A. for the life particular estate or the remainder is lim. of B., remainder to B. for the life of A., ited to the person in question jointly with merger would not happen upon the union some other person. Thus, where the of the two estates in A. or in a stranger, limitations were to A. for life, and if he but would happen if they came together should die without issue living at his in B. These distinctions, however irra- death to B. in fee, but, if A. had issue tional, appear to be established by the living at his death, to A. and his heirs, it books. Thus it is laid down, that if a was held that A.'s life estate did not lease be made to A. for the life of B., merge in the remainder to him in fee. without impeachment of waste, with re- (1 Lev., 11.) But if the life estate had mainder to A. for his own life, he is been to A., and the remainder in fee to punishable for waste, the prior estate C., with an intermediate contingent lim. being merged and the privilege annexed itation, and the estates of A. and C. had to it gone ; but if the first estate sans come together by any means in the same waste had been to him for his own life, person before the happening of the conand the remainder to him pour autre vie, tingency, those estates would have unitit had been different. (Godb., 52.) ed, and forever excluded the contingent Mr. Preston, admitting that an estaté estate. And even where the two estates pour autre vie is less in quantity than an were originally limited to the same perestate for one's own life, asserts that son, the interposed contingent limitation merger may take place between estates is only protected from destruction while equal in quantity (Prest., Conv., vol. iii., they remain in that person; if he should p. 222, et seq.); and this opinion is sup- convey his whole estate to a stranger, ported by the authorities which show merger would instantly take place, to îhat a conditional fee may merge in an- the exclusion of the contingent estate. other, or in the reversion or possibility In order to prevent this, it is the practice of reverter (3 Prest., Conv., 258; 9 Rep., in all settlements, where there are con138; Cro. Car., 476 ; 2 Ves. Sen., 354; tingent liinitations, to insert a vested 5 Scott, 790); that an estate by elegit limitation to trustees before each continor statute may merge in another (2 Vent., gent limitation, in trust to preserve the 231; Collis, P. O., 64); and that a term contingent estates, such interposed vestof years may merge in a reversion even ed estate effectually preventing the union for a shorter term of years. (Cro. El., of the vested estates on each side of it, 302; 6 Madd., 66; 4 Bac. Ab., 875, unless the trustee, in breach of his trust, Gwill. ed.). It is opposed, however, in should lend his assistance. To illustrate a recent work of merit

, on the authority the second exception, suppose a limitachiefly of a dictum in Bowles's case (11 tion to A., B., and C. jointly, for the life Rep., 79, 83, 153; 1 Roll., 177), and of the survivor of them, with remainder another in Co. Litt., 299, b. (See Bis- in fee to A.; here is no merger even as sett on Estates for Life, 182, et seq.; to one third; but if the remainder in fee and see Hurd v. Foy, 2 Roll., 485; 15 had been to D., and D. had conveyed Vin. Ab., 315, contrà.) It is not settled his fee to A., there would instantly have whether an estate for years will merge been a merger as to one third, so that B. in a remainder for years, and it would and C. would have been jointly seized not, perhaps, be difficult to support a of two thirds for the life of the survivor distinction between a remainder and a of A., B., and C., and A. would have reversion for this purpose. (See Co. been seized in common with them of Litt., 273, b; 3 Prest., Conv., 201.) An one third in fee-simple in possession, interesse termini, being no estaté, can and would have also been seized of the not be the subject of merger, or prevent other two thirds in remainder in fee. (2 it. (5 B. & Cr., 111; Dy., 112.) Rep., 60.)

If a particular estate is created, and Another exception to the general docthe immediate remainder is limited for trine of merger, which seems to be beta greater (or equal ?) estate to the same ter supported by authority than by prinperson, merger will happen in the same ciple, is where the two estates come

never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another (en auter droit), there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term-shall not merge ; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So, also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife. An estate-tail is an exception to this 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.a [178] For estates-tail are protected and preserved from merger by

the 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 modes, by a fine, a recovery, and the like;c 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 can not be surrendered, can not, also, be merged in the fee."

2 Plowd., 418. Cro. Jac., 275. Co. Litt., 338.

2 Rep., 61. 8 Rep., 74.

b Cro. Eliz., 302.
c See page 116.

together by the same assurance; as, if text, but there are many niceties and A. is tenant for life with remainder to difficulties connected with this doctrine, B. for life in fee conditional (or for any for a discussion of which the student is estate less than an absolute fee-simple, referred to the works of Mr. Preston and for this seems to be material), and A. Mr. Bissett, already referred to. It may and B. by the same assurance convey be here observed that, as the law does their respective estates to C., here there not take notice of trusts, if a man is seized is no merger. (1 Rep., 77; Hob., 273; of one estate for his own benefit, and of 3 Prest., Conv., 409.)

the other in trust for a third person, Where the estates are held in different the trust will not prevent merger. (3 rights, that is to say, where their union Swanst., 608.) in the same person is not entirely the act of the parties, but partly, at least, (24) So, if the husband has the term the act of the law, merger will not gen- in his own right, and the inheritance deerally take place, as is noticed in the scend upon his wife (Cro. Jac., 275)

but whether, if the term had been pos- in the same right, but yet with a differsessed by the husband in right of his ence, one of them being absolutely in wife, it would have merged in the in- the husband's power, the other not. If heritance descended upon her, is more the husband, having the term in right doubtful. (3 Prest., Conv., 303.) The of his wife, purchase the reversion, the two estates would then have been held former is merged. (4 Leon., 37.)

213

179

CHAPTER XII.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND

COMMON.

estate.

Number of We come now to treat of estates, with respect to the numowners of an

ber and connections 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:

in severalty, in joint-tenancy, in coparcenary,' and in common. I. In sever- I. He that holds lands or tenements in severalty, or is sole alty.

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.

II. In joint- II. An estate in joint-tenancy is where lands or tenements tenancy.

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, [180] an estate is called an estate in joint-tenancy,a and sometimes

an estate in jointure, which word, as well as the other, signifies a union or conjunction of interest ; though in common speech the term jointure is now usually confined to that joint estate which, by virtue of the statute 27 Hen. VIII., c. 10, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower.b

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(1) An estate in coparcenary, howev- cupants pour autre vie, would descend er, must be an estate of inheritance. (See to the common-law heir. (Vide infra, p. 188.). It would seem that gavelkind p. 240, n., 258, n.), lands, limited to the heirs as special oc

ated.

In unfolding this title, and the two remaining ones, in the present chapter, we will first inquire how these estates may be created; next, their properties and respective incidents ; and, lastly, how they may be severed or destroyed.

1. The creation of an estate in joint-tenancy depends on the 1. How crewording of the deed or devise by which the tenants claim title ; for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A. and B. and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As, therefore, the grantor has thus united their names, the law gives them a thorough union in all other respects."* For,

2. The properties of a joint estate are derived from its unity, 2. Properwhich is four-fold: the unity of interest, the unity of title, the unity of time, and the unity of possession ; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. First, they must have one and the same interest.

One joint- Unity of in. tenant can not be entitled to one period of duration or quantity of interest in lands and the other to a different; one can not be tenant for life, and the other for years; one can not be tenant [181 ] in fee, and the other in tail.c But if land be limited to A. and B. for their lives, this makes them joint-tenants of the freehold; if to A. and B. and their heirs, it makes them joint-tenants of the inheritance.d. If land be granted to A. and B. for their

terest.

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(2) If the nature of the thing granted, moiety, and the other in right of his bishor the character of the grantees, is repug. opric of the other moiety, and so by sevnant to a joint-tenancy, the grantees will eral titles, and in several capacities; take in common. “If a corody be grant- whereas joint-tenants ought to have it ed to two men and their heirs, in this in one and the same right and capacity, case, because the corody is uncertain, and by one and the same joint title.' and can not be severed, it shall amount (Id.) to a several grant to each of them of one corody; for the persons be several, and (3) Lord Coke says, that if a rentthe corody is personal.” (Co. Litt., 190, charge of £10 be granted to A. and B. a.) So, if lands be given to two bishops to have and to hold to them two, viz., and their successors, they take in com- to A. till he be married, and to B. till he mon, “because they are seized in sev- be advanced to a benefice, they are jointeral rights, for the one bishop is seized tenants in the mean time, notwithstandin the right of his bishopric of the one ing the limitations; and if A. die before

* In New York, a grant or devise of lands to two or more persons, in their own right, constitutes them tenants in common, unless it be expressly declared in the grant or devise that the estate shall be held in joint-tenancy; but every estate vested in executors or trustees, as such, is held by them in joint-tenancy.-(1 R. S., 726, Ø 44.)

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