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grants a lease for life to A., reserving rent, with reversion to B. and his heirs, B. hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent during the continuance of A.'s estate.x21

In order to assist such persons as have any estate in remain- [177] der, reversion, or expectancy, after the death of others, against Remainder fraudulent concealments of their deaths, it is enacted by the man's right

to compel statute 6 Ann., c. 18, that all persons on whose lives any

lands

appearance or tenements are holden shall (upon application to the Court of tenant for of Chancery, and order made thereupon) once in every year, if required, be produced to the court, or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon

and hold the lands and tenements till the party shall appear to be living. ***

* 1.And., 23.

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(21) There may be a reversion for a last two days thereof, the effect of which mere term of years, and that either at qualification is to preserve a reversion in the moment of the creation of the par- the mesne lessor, and to prevent the subticular estate, or by måtter subsequent. lessee from becoming tenant to the origThus, if A., tenant for life or in fee, de- inal lessor. mises to B. for years or for life, at a rent, But in these, as in most other assura freehold reversion remains in or reverts ances, the law regards rather the subto A., to which the rent is incident; if stance than the form; and a deed purhe then demise the same land (i: e., his porting to be a demise or lease for a term reversion in it) to C. for years, C. instant- as long as the subsisting residue of the ly acquires the reversion and the right original term out of which the demise to the rent for that term, and may take is intended to operate, will have the efa surrender of the particular estate of B., fect of an assignment, creating no tenprovided it is not a freehold; for, by ancy between the parties, and leaving analogy to the rule that a freehold estate no reversion in the grantor. (Dougl., will not merge in a remainder for years, 178; 3 Moo. & P., 57; 3 B. & Ad., it seems that a reversioner for years can 586.) See an ingenious argument for not take a surrender of a freehold estate. the existence of a mesne tenure in such

Again, a tenant for years may demise à case, 5 Man. & Ry., 157, n. the lands comprised in his term for a shorter term, and then he will have a (22) The student may be curious to reversion for years, in which the deriva- know upon whom the order spoken of tive term will merge if they come to- in the text is to be made. It is to be gether in the same person. Where à made on the ex parte application of any tenant for years wishes substantially to person having any claim to lands in repart with the term, but at the same time mainder, reversion, or expectancy, after to remain tenant to his own landlord, the death of any minor, married woman, and to stand in the relation of reversioner or other person, upon the guardian, to the intended termor; or where the trustee, husband, or other person suspect. latter does not choose to take upon him- ed of concealing the death. Upon affiself the responsibility of assignee of the davit that the cestui que vie is beyond original lease, it is common for the termor seas, the reversioner

may send over perto demise the premises comprised in the sons to view him. Restitution is to be term, to hold to the lessee for all the res- made if, after possession by the reveridue of the term wanting the last day or sioner, the cestui que vie appears to have

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* See similar provisions in the statutes of New York, which also require that restitution is to be made, if, after possession by the reversioner, the cestui que vie appears to have been alive.—(2 R. S., 343–346.) Vou. JI.-0

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Dootrine of merger.

Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person without any intermediate estate,y the less is immediately annihilated ; or, in the law phrase, is said to be merged, that is, sunk or drowned in the greater." Thus, if there be tenant for years,

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y 3 Lev., 437.

*

been alive. (See 6 Ves., 512; 4 Myl. & is immediately accelerated. An estata Cr., 11.)

in remainder is as capable of merger as At common law, a person who has not an estate in possession. Thus, if A. is been heard of for seven years was pre- tenant for life, remainder to B. for his sumed to have died (Dy., 185); and that life, remainder to C. in fee, and B. con period was adopted in the statute 1 Jac. veys his life estate to C., or the feeI., c. 11, against bigamy; and by the simple in C. descends upon or is convey. stat. 19 Car. II., c. 6, it is enacted that, ed to B., the life estate merges. But in actions by grantors of copyholds for merger can only take place between eslives,

and by other reversioners expect- tates in immediate succession, the parant on leases for lives, the death of any ticular estate can only drown in that esperson on whose life such grant or lease tate which, if the particular estate and was made shall be presumed, if such all estates preceding it were at an end, person shall remain beyond seas, or else would be the estate in possession. where absent himself in this realm, by Therefore, in the last example, if A. the space of seven years together; un- were to convey his life estate to C., there less he is proved to be living. It is now would be no merger, but C. would be the rule in most cases (see, as to legacies, tenant for the life of A. in possession, 3 Br., C. C., 510; 6 Ves., 606; 8 Sim., with remainder in fee after the death of 443) to presume the death of a person B. But if the intermediate estate in B. who has not been heard of during

seven were removed, merger would take place; years. (See 6 East, 81; 4 B. & Al., so that if B. died after the conveyance 433; 4 Nev. & M., 341.) But there is to C., or himself conveyed his own es. no presumption that the death took place tate to C., the estate for A.'s life would at the beginning, in the middle, or at merge in the remainder in fee, which the end of the seven years. Á pre- would then be immediately expectant sumption as to the exact time of death upon it. A remainder for years, howcan only arise from special circumstan- ever, interposed between two estates of ces. (2 Mee. & W., 910; 1 You. & C. freehold, will not prevent their merger, N. C., 117. See 1 Stark., 121; 3 Br., because the possession of the termor has C. C., 510; 1 Mer., 308; Park on In- nothing to do with the freehold. (1 surance, 644.)

Salk., 254; vide ante, p. 167, n. (7)).

It is laid down in the text that merg. (23) This account of merger is very er is the drowning a lesser estate in a imperfect. Merger is the acceleration greater, but whether merger may not of an estate in remainder or reversion take place between estates of equal by the destruction of the particular es- amount or value in the eye of the law is tate; and the estate in which the lesser not satisfactorily settled. An estate for estate is to drown or merge, must stand one's own life is considered to be an es. to it in the relation of an immediate re- tate of greater amount than one pour mainder or reversion. Thus, if A. is autre vie (Co. Litt., 273, b), though it tenant for life, remainder to B. for years, would, perhaps, be impossible to discov: and A. conveys his estate to B., or B. as- er the ground of this distinction; and signs his term to A., no merger takes hence it appears to be settled, that an place, because the particular estate is estate pour autre vie uniting in the same greater in amount of interest than the person

with an immediate remainder or remainder ; but if A. is tenant for years, reversion for his own life will merge in remainder to B. for life, in tail, or in fee, the latter; but, according to the old authen upon the two estates coming to thorities, an estate for one's own life will gether, either in A. or B., or in a third not merge in an estate pour autre vie, person, the lesser estate for years merges nor will even one estate pour autre vie in the freehold remainder, and the latter merge in another. From these distinc.

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Expectant estates can not be defeated by merger.-(1 R. S., 724, $ 32.0

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

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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 remainA. there would be no merger; whereas der; and, secondly, where either the if the limitation were to Ă. for the life particular estate or the remainder is limof 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 limbeing 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. ii., 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 that 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. Čar., 476; 2 Ves. Sen., 354; tingent limitations, 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. C., 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. Àb., 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

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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.z 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 intertst 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.b 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.“

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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 orged. (4 Leon., 37.

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