tingent remainder depending on the former of two estates vested in the same person, will suspend the absolute union of these estates, if created by the same conveyance; yet this protection from merger will continue only till the owner of these estates has done some act, by which he confounds the first of his estates in the more remote estate, and by that means destroys the contingent remainder. Per Hale, Purefoy v. Rogers, 2 Saund. 380. And even while the intervening remainder is in contingency, the several estates belonging to the same person will unite for all the purposes of tenure, and there will be a temporary merger, subject to the right of those entitled under the contingent remainder, to have the benefit of that remainder, when it can vest. In this instance, the estate opens and closes as the circumstances of the contingent remainder require. Lewis Bowles's case, 11 Co. 79. 3 Prest. Conv. 112, 113. And, notwithstanding an intervening estate for years, the freehold may unite with the inheritance, when the freehold and the inheritance meet in the same person, so as to confer a title by curtesy, dower, possessio fratris, &c. without prejudice to the term: which affords an instance of a qualified merger, or, more accurately speaking, of union and consolidation, without producing all the effects of merger. Batese's case, 1 Salk., 254. 3 Prest. Conv. 114, 115. And an intervening estate for years will prevent the merger of another estate for years, in the freehold or inheritance, limited to take place after the several estates for years. Ib. 127. Bicknal v. Tucker, 15 Vin. 362. pl. 2. Brownl. 181. An interesse termini, however, is not such an intervening interest as will prevent the application of the law on merger. On the contrary, notwithstanding an interesse termini, two estates which in all other respects are immediate to each other will unite, and the right of possession under the interesse termini may, unless circumstances impede, be accelerated. 3 Prest. Conv. 120, 121. Northam's case, Hetl. 55. That the merger of one of three or more estates may be interrupted by reason of a mesne estate, which cannot merge, because it is larger than the more remote estate; see 3 Prest. Conv. 141, 142.

3dly. The estate in reversion or remainder must be as large as, or larger than the preceding estate. Ante, 54 b. vol. 1. p. 635. Bro. Abr. Exting. 11 H. 4. 34. 3 Leon. 157, 158. Jenk. Cent. 248. pl. 37. Mordant v. Watt, Brownl. 19. Thus an estate at will will be merged by the acquisition of an estate for years. 3 Prest. Conv. 176. So estates by extent on statutes, &c. may merge in each other (Dighton v. Grenville, 2 Vent. 231. Collis's Par. Cas. 64. Vin. Abr. Merger.), and in estates for years, &c. 3 Prest. Conv. 177. So, we have seen, estates for years may merge in each other, ante, p. 510. n. (q 3); or in estates of freehold or inheritance. Ante, vol. 1. p. 635. n. (1). So estates after possibility of issue extinct are, for all the purposes of merger, estates for life, and may merge in estates of that or a superior degree. Ante, vol. 1. p. 555. n. (G). So estates for life may merge in each other, or in larger estates. Ante, vol. 1. p. 624. n. (G). And though an estate tail, while in the tenancy of the tenant in tail, and descendible to the issue inheritable under the intail, is privileged from merger, yet when the right of the issue under the intail ceases, or is defeated, or suspended, this estate may merge in the fee-simple. Ante, vol. 1. p. 549. n. (P). So determinable fees, qualified fees, and conditional fees, will merge in the fee-simple, or in any fee of the same or larger extent, that is, in any fee not being in fee-tail. 3 Prest. Conv. 258. And it seems probable that, when the base or determinable fee depends in point of title on an estate tail, it will merge in the immediate reversion or remainder, whether the same is held for an estate in fee, or in fee-tail. Ib. 259. And although a person cannot have a power and a fee in the same lands, when he is seised of that fee under a gift or conveyance to him by the rules of the common law, but the power will merge in the estate, Goodill v. Brigham, 1 Bos. & P. 192; yet it is clearly settled, that, in a conveyance to uses, the same person may have a power of appointment and also a fee. Sir Edward Clere's case, 6 Co. 17. Maundrell v. Maundrell, 10 Ves. 244. As if a conveyance is made by A. to B. in fee, to such uses as A. shall appoint, and in default of appointment to the use of A. in fee, A. is seised by means of the statute of Uses, and the power and the fee are consistent. So if A. convey to B. in fee, to such uses as A. shall appoint, and in default of appointment to the use of A. for life, remainder to B. in fee. The power, being in a conveyance to uses, is good. But it is otherwise in the case of a conveyance to A. in fee, to such uses as A. shall appoint, and in default of appointment to the use of A. in fee; for the statute of Uses is applicable only when there is an use divided from the legal ownership; and therefore the statute does not execute uses of this description, when the use or beneficial ownership is in effect embraced in, and conferred by the legal estate. 3 Prest. Conv. 270-273.

4thly. The several estates must be held in the same legal right; or when the estates are held in different legal rights, one of them must not be an accession to the other, merely by act of law. See ante, n. (H) and (1), p. 556. and (L) infra. The exemption from merger in favour of estates held in autre droit, appears to apply, Ist. As between husband and wife.

2d. As between executors and administrators, having an estate in their own right, and another in right of their testator or intestate. 3d. As between persons who form a part of a corporation aggregate of many, and who have estates in their individual capacity, at the same time that the corporation, of which they are a constituent part, has an estate in its corporate capacity. 4th. Between persons entitled under an intail, and who have the fee expectant upon that estate. And 5th. Between persons who have an instantaneous or temporary seisin to serve uses, to be raised out of the estate conveyed to them, and also an estate in their own right. This exemption from merger, however, does not hold, as between trustees and cestuis que trust, Lee's case, 2 Leon. 110. 3 Leon. 6. Villiers v. Villiers, 2 Atk. 72; but the doctrine of merger equally applies, whether the estate charged with the trust merges in the estate which the trustee had in his own right; or the estate of the trustee held in his own right, becomes merged in an estate conveyed to him, or devolving on him by descent. But in either case equity will afford relief. Though a trust will not prevent the merger of one of two legal estates, yet when the same person has the trust or beneficial ownership, and also the legal estate, though they are derived under distinct titles, the trust will merge in the legal ownership. Cooke v. Cooke, 2 Atk. 67. Willoughby v. Willoughby, 1 T. R. 766. Goodright v. Sales, 2 Wils. 331. Villiers v. Villiers, supra, Capel v. Girdler, 9 Ves. 509. For it is a general rule in equity, that a person cannot be a trustee for himself, and that as between real and personal representatives, or between different classes of heirs, or heirs in different lines, there is not any equity, but the legal right must prevail. 3 Ves. jun. 126. Ibid. 339. Therefore, except in the case of infants, &c. an equitable charge will merge in the legal ownership when they are united; an equitable term will, as between the heirs and executors, merge in the legal estate of inheritance; and an equitable fee, by descent ex parte paterna, will merge in the legal fee taken by descent ex parte materna: so as, in the two former cases, to exclude the person entitled to the charge; and, in the latter case, to exclude the paternal heirs in favour of the maternal heirs. Doe, d. Balch v. Putt, cited Dougl. 772. Goodright v. Wells, Dougl. 771. 3 Ves. jun. 339. 3 Prest. Conv. 328. But when a person has a fee subject to an executory devise to his mother, and the interest under the executory devise descends to him, and the event happens on which the executory devise is to operate, the descent from the mother will govern the title; and consequently the interest by executory devise is not extinguished in the fee. Goodright v. Searle, 2 Wils. 29. Also an exemption from merger is not allowed, as between jointtenants, when the reversion comes to one of them by descent. Wiscot's case, 2 Co. 60: nor when the reversion is limited by any other deed, &c. than that which creates the jointtenancy. Ante, 184 a. vol. 1. p. 746. And it is doubtful whether it applies as between parsons who have a term in their own right, and also the parsonage in right of their church and in their capacity of parsons: or between prebendaries who have an estate in the revenues and lands of the prebend under a grant from the prebendary, and also the advowson of the prebend as their inheritance, or the incumbency of the prebend in the character of prebendary. Vin. Abr. tit. Merger. 3 Prest. Conv. 298-300.

5thly. The estate must not be privileged, either under the statute of Uses, or the statute of Intails. It has been already shown, that the exemption of estates tail from merger is for the benefit of the issue; and it may be considered as a general rule, that when there is not any longer a possibility that the issue in tail can claim a right to inherit the estate in that character, and per formam doni, the estate tail ceases to retain the quality of being privileged from merger. Ante, vol. 1. p. 549. n. (p). With respect to the privilege from merger under the statute of Uses, Mr. Preston observes, that all the cases which have arisen on this statute, as well as the words of the statute itself, prove that there is an exemption from merger under this statute, in those instances only in which the owner of the term, or particular estate, is the instrument mediately or immediately for raising the uses, so that the uses are to arise out of the estate conveyed to him. For even at this day an estate arising to a feoffee to uses under a declaration of uses, will merge an estate previously vested in such feoffee to uses. Also when a man has a term, or other particular estate, in his own right, and the reversion or remainder is conveyed to him upon trusts which do not execute into estate by force of the statute of Uses, the legal right under the term or other particular estate will be extinguished. So when a termor joins with those who have the reversion in making a conveyance to a third person, either to uses or upon trust, and although there be an express declaration that the conveyance shall not affect the right of the terior, yet his estate will be annihilated. And the only mode of keeping his estate on foot, is to insert an express declaration of use, by way of confirmation in his favour. And then there is rather a new term under a new title, than the old term under the ancient title. 3 Prest. Conv. 369, 370. Ferrers v. Fermor, Cro. Jac. 643. Fountain v. Cook, 1 Mod. 107.

6thly. The doctrine will not have effect, to alter the quality of one of two estates, in the same person, or to destroy a contingent remainder, when the several estates are limited by the same deed or instrument, or take their effect in the same instant of time, and, in some degree, by the same act, and some other person is concerned in the consequence of the merger. With respect to this branch, see ante, 182 b. vol. 1. p. 744 and 184 a. vol. 1. p. 746. and the notes there. Ante, p. 144. n. (P). Supra, p. 557. Rogers v. Downes, 2 Mod. 293. Purefoy v. Rogers, 2 Saund. 386. 3 Prest. Conv. 376-403.

7thly. The doctrine does not apply to an estate for several lives, arising under the same limitation, as giving one undivided and entire time of continuance. In Ross's case, 5 Co. 14. it was determined that a lease for several lives was one entire estate, and not several and distinct estates; and consequently that there could not be any merger, since there were not two estates, so that one might merge in another. Et vid. Útty Dale's case, Cro. Eliz. 182. But when a lease is made for several lives, as distinct periods of time, giving one estate in possession, and others in remainder, then cæteris paribus, the doctrine of merger will apply; because there are several estates: that doctrine however cannot operate, unless the estate in remainder is larger than, or as large as, the estate in possession. 3 Prest. Conv. 406. Supra, p. 558.

And 8thly. The union of two estates in the same person, by means of the joint act of the respective owners of these estates, with an intention that the estate of their assignee should continue for the collective time of their several estates, will not be a cause of merger. 3 Prest. Conv. 50, 51. On this head Mr. Preston observes, that all the cases in which the doctrine of merger has prevailed, are authorities only that one estate will be annihilated, when there are two distinct estates, and the time of one becomes, either in point of fact, or in intendment of law, inconsistent with the other; or there is an evident intention to change the tenancy under one estate, to a tenancy under another estate. But when one person accepts a conveyance from two persons who have distinct estates, becoming the purchaser of the estate of each of them, and their estates give particular interests only, and not the complete ownership and absolute dominion over the property, either generally, or subject to certain particular estates, it is a natural and reasonable inference that he intended to have the right of enjoyment for the several periods of time comprised in these estates. To many purposes there is a union and consolidation of the two estates. They become one entire interest, so as to perfect a right of dower, tenancy by curtesy, &c. and give the remedies proper to the estate considered as an estate of inheritance in possession: still, however, there is not any merger. For to merger it is essential that the time of one estate should, in point of title, be absorbed and lost in the time of the other estate; while, in the case under consideration, the right of enjoyment will continue for the several times of the several estates. Another circumstance peculiar to these cases, and distinguishing them from those to which the doctrine of merger is applicable, is, that the right of enjoyment continues under each estate for the time of that estate; so that under these circumstances the charges on the reversionary or more remote estate, which were created by the former owner of that estate, will not be accelerated by the union and consolidation of the two estates. Ib. 409, 410. Et vid. Bredon's case, i Co. 77. Treport's case, 6 Co. 14. The Earl of Clanrickarde's case, Hob. 273. Beckwith's case, 2 Co. 56. But when one and the same person has several estates, which are kept distinct in him by reason that one of the estates is privileged from merger under the statute of Intails, or for the sake of some other person concerned in benefit under a joint-tenancy or a contingent remainder, there will be a merger when this person conveys these several estates even by one conveyance and one entire grant. For as these estates were kept distinct and exempted from merger for a particular cause, a merger will take place on the union of these estates in another person, or even in the same person as taking under a conveyance to uses; since the cause for the exemption from merger no longer exists, et cessante causa cessat effectus. 3 Prest. Conv. 441. Symonds v. Cudmore, 4 Mod. 1. Eustace's case, Jones, 55. 2 Salk. 204.

As to the effect of merger, it is observable, 1st, That the doctrine of merger may be injurious to the person in whose estate in reversion or remainder a prior estate becomes merged. We have seen, that when he is a trustee, he will be protected by the court of equity from the consequences of the merger; but unless he can derive a protection from this or some other source, he may, by reason of the merger, be subjected to a lease operating by interesse termini, to a charge, or to a judgment, as a present and immediate incumbrance, affecting the possession: while, without the merger, such lease, judgment, &c. would not have attached on the possession, until the prior estate had determined by effluxion of time. 2dly. Notwithstanding the merger of the particular estate, persons who have interests affecting the estate which is merged, will be left in the same condition in point of benefit, as if no merger had taken place. Therefore, if tenant for life has made a lease, or granted a

rent-charge, or confessed a judgment, such lease, rent, or judgment, will remain in force, and affect the land during the period of the estate which is merged, in like manner, as if that estate had continuance. For the purpose of these estates, the particular estate, though merged, has continuance in point of title, although it is merged in point of law. Infra, 338 b. 3 Prest. Conv. 446-448. Under the same principle, the right of exercising powers of leasing and of cutting timber, cannot be accelerated to the prejudice of persons who have opposing interests. Ibid. 452. 3dly. The effect of the merger on the estate in which the merger takes place, is to subject the reversion or remainder, thus accelerated, to all those burdens and consequences, which would have attached on that estate in case the prior estate had not existed, and in the same order or series of time, as if that estate were determined. Symonds v. Cudmore, 4 Mod. 1 Perk. sect. 62, 63. Shelbourne v. Biddulph, 4 Bro. P. C. 594. Infra, 338 b. Post, 132 b. Thus the possession will be chargeable during the period appointed for the continuation of the particular estate, with all the incumbrances which affected that estate; and also (by way of acceleration) with the incumbrances which attached on the reversion or remainder as thus accelerated. Errington v. Errington, 2 Bulstr. 42.

It only remains to observe, that an executory interest by devise or by bequest, or an executory interest under a springing or shifting use, will not cease by the union of the executory interest in the person who has the estate, which is subject to that interest. Goodright v. Searle, 2 Wils. 29. Goodtitle v. White, 15 East, 174. 3 Prest. Conv. 493. But although these interests are distinct, while they are in the original owner, yet after he has aliened the fee, the two interests will be united; for the conveyance will operate first, as a transfer of the estate, and secondly, as a release, by way of entinguishment of the interest under the executory devise, &c. Ibid. 407. With respect to persons who are releasees to uses, we have seen, that no estate will be merged, by reason that the owner thereof accepts another estate merely as a releasee or grantee to uses. Supra, p. 559. On the other hand, an estate which such feoffee, releasee, or grantee may take under an use declared of his estate, may be the cause of merger; in the same manner, as if the person taking an estate under the use had not been the feoffee, releasee, or grantee to uses. It is also to be remembered, that this protection is extended to a person who is an instrument towards the raising of uses, although he be not the feoffee, releasee, or grantee, on whose immediate seisin the uses arise. Thus, in the instance of a conveyance to a man, and his heirs, to the intent that he may be tenant of the freehold, to the end that a common recovery may be suffered to uses, although the uses arise from the seisin of the demandant, and not from the seisin of the tenant, yet the estate which was in the tenant prior to the acceptance of the conveyance, will be protected. Ferrers and Curson v. Fermor, Cro. Jac. 643. 3 Prest. Conv. 512, 513. Merger is not favoured in equity, except to promote the intention, Phillips v. Phillips, 1 P. Wms. 41; and therefore though there may, as to equitable estates, be an union in equity, as well as at law, yet equity would not permit an acceleration of charges, incumbrances, &c. as a consequence of the union, against the justice of the case, or contrary to the intention. But even in equity, if a man grant a lease of the possession, while he has merely a reversion or remainder expectant on a prior estate, yet on his purchase of the particular estate, equity proceeding upon those rules which govern that court in enforcing specific performance of contracts, would decree a lease to operate on the ownership thus acquired, subsequent to the lease; so as to charge the possession with the lease. 3 Prest. Conv. 558. As to money paid, the union of the title to the money in the person who is owner of it, whether it be real or personal property, will extinguish the demand. The fund must be taken as it is found. Pulteney v. Darlington, 1 Bro. C. C. 223. 2 Ves. jun. 175. With respect to creditors, it is observable, that after the merger of a term belonging an executor or administrator in that character, in the reversion or remainder which the executor or administrator, or the husband of an executrix or administratix, has in his own right, the term, it should seem, no longer remains assets, against which an execution can be sued as part of the goods of the testator. In consequence of annihilating the term by his own act, the value of the term is assets in the hands of the husband, or executor, &c. making the husband in his life-time, and his wife after his decease, liable to that extent, as for value received; or for a devastavit. But at law, the term does not, it is apprehended, continue specifically liable to the demands of the creditors, merely as creditors. Chalton and others v. Low and others, 2 P. Wms. 328. But it is probable, that a court of equity would not suffer creditors to be defrauded by the merger of the term; but would follow the inheritance while it remained with the executor, &c. or with the wife, or the husband; so as to give the creditors out of the inheritance a compensation to the value of the term, as assets belonging to them in equity, though withdrawn from them by the rules of law. 3 Prest. Conv. 559–565. With respect to persons who have legal and equitable estates united, as a legal estate cannot merge in an equitable

or in case of

*But if it had been a corporation aggregate of many, the making (563)* of the lessee master had not extinguished the term, no more lessee for than if the lessee had been made one of the brethren of the hos- years under a pital (L).

corporation aggregate of many, being made master.

one, it frequently becomes material, with reference to the application of the doctrine now under consideration, to consider whether the term be not legal, and the inheritance equitable, or e converso. We have seen that an equitable fee may be extinguished by the legal fee, and that the purchase of the legal fee will govern the order of succession. In general too, all equitable interests will be absorbed in, and extinguished by the legal interests, as far as they are united, since the legal estate will govern the title, as far as the same person has the legal estate, and the benefit of that estate, as the equitable owner. Wade v. Paget, 1 Bro. C. C. 363. But the legal estate will not extinguish more of the equitable interest, than is corresponding to, and co-extensive with, the legal estate. 3 Prest. Conv. 567. And where a charge upon land comes to the same person, that is entitled to the land (Clerk v. Rutland, Lane, 111. Chester v. Willes, Ambl. 246), if he has not the same interest in both, there shall be no extinguishment upon his account. Price v. Seys, Barn. C. C. 120: in which respect there is a distinction between legal and equitable estates, on the one hand, and freehold and copyhold interests on the other hand; because the fee of a copyhold may be extinguished in a particular estate of the freehold tenure. St. Paul v. Lord Dudley and Ward, 15 Ves. 167. So if a person has a charge on the inheritance, and purchases an estate, being a portion of that inheritance, the charge will not be extinguished or suspended, except so far as it affect the ownership, which the party acquires in such portion of the inheritance. 3 Prest. Conv. 567. The general rule also is, that if a person has a portion charged on the inheritance, and then acquires the inheritance in fee by purchase, the charge cannot be enforced by the personal representatives to the prejudice of the heirs or real representatives. Chester v. Willes, Ambl. 246. Supra, p. 559. But if there be evidence of the intention of the owner of the fee, that the charge should not merge; or where no intention is expressed, or the party is incapable of expressing any, if it appear to the court to be most advantageous for him, that it should continue personal property; in such case the charge will not sink. Thomas v. Kemish, 2 Vern. 348. Et vid. Forbes v. Moffatt, 18 Ves. 384; in which case a mortgage was held to be not merged by union with the fee; the actual intention, not established by the acts of the party, being presumed from the greater advantage against merger in favour of the personal representative. So it is when the inheritance descends on an infant entitled to a portion, or when an estate-tail or for life only is acquired. (Chandos v. Talbot, 2 P. Wms. 610. Ambl. 246.), or creditors would be prejudiced. Donisthorpe v. Porter. Ambl. 600. 1 Sand. 242. There are also some other exceptions to the general rule that the succession shall be governed by the legal and not by the equitable estate; for if a person has a term of years at law, and purchases the equitable inheritance, the term will become attendant on the inheritance, for the benefit of the heirs, in exclusion of the executors, or, more correctly speaking, the executors, as to the legal estate, will become trustees for the heirs. Charlton v. Low, 3 P. Wms. 328. Also, when a copyholder of the legal estate purchases the equitable fee of the freehold tenure, the heirs of the freehold tenure, though merely equitable, will be entitled to the benefit of the legal estate of the copyhold tenure. 3 Prest. Conv. 569. The general rule, however, is, that if a man has the same interest, and absolute dominion and property in the whole inheritance, as he has in the term or power for raising money out of the inheritance, there it must merge, for a man cannot have a power to raise money merely for my benefit out of that which is mine. But if there be any difference in the two interests, or any other person intermediate, then there can be no merger; for if there be any merger in the first case, it will change the intent of the conveyance; and in the other case, there being an intermediate estate, there is no merger at law, no more is there in a court of equity in the case of a trust. 2 Fonbl. Tr. Eq. 167. Et vid. Willoughby v. Willoughby, 1 T. R. 766. But though a term will not become attendant on the inheritance, by the construction of a court of equity, except under the circumstances stated in the general rule, yet it may, under other circumstances, become attendant, by the express declaration of the owner of the term, and of the inheritance. Scott v. Fenhoulet, 1 Bro. C. C. 69. 3 Prest. Conv. 570.

The whole doctrine of merger is unfolded with great perspicuity and learning, by Mr. Preston, in the 3d vol. of his Treatise on Conveyancing, from which the preceding observations have been chiefly extracted to that work we beg to refer the student for a full development of this interesting subject.-[Ed.]

(L) With respect to persons who are seised as individuals of one estate, and of another