Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Eleventh : Of Estates in Possession, Remainder, and Reversion
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The Rights of Things.
Ch. 11.
Chapter the eleventh.
Of ESTATES in POSSESSION, REMAINDER, and REVERSION.
HITHERTO we have confidered eftates folely with regard to their duration, or the quantity of intereft which the owners have therein. We are now to confider them in another view ; with regard to the time of their enjoyment, when the actual pernancy of the profits ( that is, the taking, perception, or receipt, of the rents and other advantages arifing therefrom ) begins. Eftates therefore, with refpect to this confideration, may either be in poffeffion, or in expectancy : and of expectancies there are two forts ; one created by act of the parties, called a remainder ; the other by act of law, and called a reverfion.
I. O f eftates in poffeffion, ( which are fometimes called eftates executed, whereby a prefent intereft paffes to and refides in the tenant, not depending on any fubfequent circumftance or contingency, as in the café of eftates executory ) there is little or nothing peculiar to be obferved. All the eftates we have hitherto fpoken of are of this kind ; for, in laying down general rules, we ufually apply them to fuch eftates as are then actually in the tenant's poffeffion. But the doctrine of eftates in expectancy contains fome of the niceft and moft abftrufe learning in the Englifh law. Thefe will therefore require a minute difcuffion, and demand fome degree of attention.
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II. A n eftate then in remainder may be defined to be, an eftate limited to take effect and be enjoyed after another eftate is determined. As if a man feifed in fee-fimple granteth lands to A for twenty years, and, after the determination of the faid term, then to B and his heirs for ever : here A is tenant for years, remainder to B in fee. In the firft place an eftate for years is created or carved out of the fee, and given to A ; and the refidue or remainder of it is given to B. But both thefe interefts are in fact only one eftate ; the prefent term of years and the remainder afterwards, when added together, being equal only to one eftate in fee
a. They are indeed different parts, but they conftitute only one whole : they are carved out of one and the fame inheritance : they are both created, and may both fubfift, together ; the one in poffeffion, the other in expectancy. So if land be granted to A for twenty years, and after the determination of the faid term to B for life ; and, after the determination of B's eftate for life, it be limited to C and his heirs for ever : this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the eftate of inheritance undergoes a divifion into three portions : there is firft A's eftate for years carved out of it ; and after that B's eftate for life ; and then the whole that remains is limited to C and his heirs. And here alfo the firft eftate, and both the remainders, for life and in fee, are one eftate only ; being nothing but parts or portions of one entire inheritance : and if there were a hundred remainders, it would ftill be the fame thing; upon a principle grounded on mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence alfo it is eafy to collect, that no remainder can be limited after the grant of an eftate in fee-fimple
b : becaufe a feefimple is the higheft and largeft eftate, that a fubject is capable of enjoying ; and he that is tenant in fee hath in him the whole of the eftate : a remainder therefore, which is only a portion, or refiduary part, of the eftate, cannot be referved after the whole is defpofed of. A particular eftate, with all the remain
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a Co. Litt. 143.
b Plowd. 29.
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ders
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ders expectant thereon, is only one fee-fimple ; as 40
l. is part of 100
l. and 60
l. is the remainder of it : wherefore, after a feefimple once vefted, there can no more be a remainder limited thereon, than after the whole 100
l. is appropriated there can be any refidue fubfifting.
Thus much being premifed, we fhall be the better enabled to comprehend the rules that are laid down by law to be obferved in the creation of remainders, and the reafons upon which thofe rules are founded.
1. And, firft, there muft neceffarily be fome particular eftate, precedent to the eftate in remainder
c. As, an eftate for years to A, remainder to B for life ; or, an eftate for life to A, remainder to B in tail. This precedent eftate is called the particular eftate, as being only a fmall part, or particula, of the inheritance ; the refidue or remainder of which is granted over to another. The neceffity of creating this preceding particular eftate, in order to make a good remainder, arifes from this plain reafon ; that remainder is a relative expreffion, and implies that fome part of the thing is previoufly difpofed of : for, where the whole is conveyed at once, there cannot poffibly exift a remainder ; but the intereft granted, whatever it be, will be an eftate in poffeffion.
An eftate created to commence at a diftant period of time, without any intervening eftate, is therefore properly no remainder : it is the whole of the gift, and not a refiduarypart. Andfuch future eftates can only be made of chattel intereft, which were confidered in the light of mere contracts by the antient law
d, to be executed either now or hereafter, as the contracting parties fhould agree : but an eftate of freehold muft be created to commence immediately. For it is an antient rule of the common law, that no eftate of freehold can be created to commence in futuro ; but it ought to take effect prefently either in poffeffion or remainder
e : becaufe at common law no freehold in lands
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c Co. Litt. 49. Plowd. 25.
d Raym. 151.
e Rep. 94.
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could
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could pafts without livery of feifin ; which muft operate either immediately, or not at all. It would therefore be contradictory, if an eftate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate poffeffion. Therefore, though a leafe to A for feven years, to commence from next Michaelmas, is good ; yet a conveyance to B of lands, to hold to him and his heirs for ever from the end of three years next enfuing, is void. So that when it is intended to grant an eftate of freehold, whereof the enjoyment fhall be deferred till a future time, it is neceffary to create a previous particular eftate, which may fubfift till that period of time it completed ; and for the grantor to deliver immediate poffeffion of the land to the tenant of his particular eftate, which is conftrued to be giving poffeffion to him in remainder, fince his eftate and that of the particular tenant are one and the fame eftate in law. As, where one leafes to A for three years, with remainder to B in fee, and makes livery of feifin to A ; here by the livery the freehold is immediately created, and vefted in B, during the continuance of A's term of years. The whole eftate paffes at one from the grantor to the grantees, and the remainder-man is feifed of his remainder at the fame time that the tremor is poffeffed of his term. The enjoyment of it muft indeed be deferred till hereafter ; but it is to all intents and purpofes an eftate commencing in praefenti, though to be occupied and enjoyed in futuro.
As no remainder can be created, without fuch a precedent particular eftate, therefore the particular eftate is faid to fupport the remainder. But a leafe at will is not held to be fuch a particular eftate, as will fupport a remainder over
f . For an eftate at will is of a nature fo flender and precarious, that it is not looked upon as a portion of the inheritance ; and a portion muft firft be taken out of it, in order to conftitute a remainder. Befides, if it be a freehold remainder livery of feifin muft be given at the time of it's creation ; and the entry of the grantor, to do this, determines the eftate at will in the very inftant in which it is
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f 8 Rep. 75.
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made
g.
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made
g : or, if it be a chattel intereft, though perhaps it might operate as a future contract, if the tenant for years be a party to the deed of creation, yet it is void by way of remainder : for it is a feparate independent contract, diftinct from the precedent eftate at will ; and every remainder muft be part of one and the fame eftate, out of which the preceding particular eftate is taken
h. And hence it is generally true, that if the particular eftate is void in it's creation, or by any means is defeated afterwards, the remainder fupported thereby fhall be defeated alfo
i : as where the particular eftate is an eftate for the life of a perfon not in effe
k ; or an eftate for life upon condition, on breach of which condition the grantor enters and avoids the eftate
l ; in either of thefe cafes the remainder over is void.
2 A secondrule to be obferved is this ; that the remainder muft commence or pafs out of the grantor at the time of the creation of the particular eftate
m. As, where there is an eftate to A for life, with remainder to B in fee : here B's remainder in fee paffes from the grantor at the fame time that feifin is delivered to A of his life eftate in poffeffion. And it is this, which induces the neceffity at common law of livery of feifin being made on the particular eftate, whenever a freehold remainder is created. For, if it be limited even on an eftate for years, it is neceffary that the leffee for years fhould have livery of feifin, in order to convey the freehold from and out of the grantor ; otherwife the remainder is void
n. Not that the livery is neceffary to ftrengthen the eftate for years ; but, as livery of the land is requifite to convey the freehold, and yet cannot be given to him in remainder without infringing the poffeffion of the leffee for years, therefore the law allows fuch livery, made to the tenant of the particular eftate, to relate and enure to him in remainder, as both are but one eftate in law
o.
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g Dyer. 18.
hRaym. 151.
I Co. Litt. 298.
k 2 Roll. Abr. 415.
l 1 Jon. 58.
m Litt. §. 671. Plowd. 25.
n Litt. §. 60.
o Co. Litt. 49.
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3. A third
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2. A third rule refpecting remainders is this ; that the remainder muft veft in the grantee during the continuance of the particular eftate, or eo inftanti that it determines
p. As, if A be tenant for life, remainder to B in tail ; here B's remainder is vefted in him, at the creation of the particular eftate to A for life : or, if A and B be tenants for their joint lives, remainder to the furvivor in fee ; here, though during their joint lives the remainder is vefted in neither, yet on the death of either of them, the remainder vefts inftantly in the furvivor : wherefore both thefe are good remainders. But, if an eftate be limited to A for life, remainder to the eldeft fon of B in tail, and A dies before B hath any fon ; here the remainder will be void, for it did not veft in any one during the continuance, nor at the determination, of the particular eftate : and, even fuppofing that B fhould afterwards have a fon, he fhall not take by this remainder ; for, as it did not veft at or before the end of the particular eftate, it never can veft at all, but is gone for ever
q. And this depends upon the principle before laid down, that the precedent particular eftate and the remainder are one eftate in law ; they muft therefore fubfift and be in effe at one and the fame inftant of time, either during the continuance of the firft eftate or at the very inftant when that determines, fo that no other eftate can poffibly come between them. For there can be no intervening eftate between the particular eftate, and the remainder fupported thereby
r : the thing fupported muft fall to the ground, if once it's fupport be fevered from it.
I t is upon thefe rules, but principally the laft ; that the doctrine of contingent remainders depends. For remainders are either vefted or contingent. Vefted remainders ( or remainders executed, whereby a prefent intereft paffes to the party, though to be enjoyed in futuro) are where the eftate is invariably fixed, to remain to a determinate perfon, after the particular eftate is fpent. As
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p Plowd. 25. 1 Rep. 66.
q 1 Rep. 138.
r 3 Rep. 21.
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if
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if A be tenant for twenty years, remainder to B in fee ; here B's is a vefted remainder, which nothing can defeat, or fet afide.
Contingent or executory remainders (whereby on prefent intereft paffes) are where the eftate in remainder is limited to take effect, either to a dubious and uncertain perfon, or upon a dubious and uncertain event ; fo that the particular eftate may chance to be determined, and the remainder never take effect
s.
First, they may be limited to a dubious and uncertain perfon. As if A be tenant for life, with remainder to B's eldeft fon ( then unborn) in tail ; this is a contingent remainder, for it is uncertain whether B will have a fon or no : but the inftant that a fon is born, the remainder is no longer contingent, but vefted. Though, if A had died before the contingency happened, that is, before B's fon was born, the remainder would have been abfolutely gone ; for the particular eftate was determined before the remainder could veft. Nay, by the ftrict rule of law, if A were tenant for life, remainder to his own eldeft fon in tail and A died without iffue born, but leaving his wife enfeint or big with child, and after his death a pofthumous fon was born, this fon could not take the land, by virtue of this remainder ; for the particular eftate determined before there was any perfon in effe, in whom the remainder could veft
t. But, to remedy this hardfhip, it is enacted by ftatute 10 & 11 W III. c. 16. that pofthumous children fhall be capable of taking in remainder, in the fame manner as if they had been born in their father's lifetime : that is, the remainder is allowed to veft in them, while yet in their mother's womb
u
This fpecies of contingent remainders, to a perfon not in being, muft however be limited to fome one, that may by common poffibility, or potentia propinqua, be in effe at or before the particular eftate determines
w. As if an eftate be made to A for
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s 3 Rep. 20.
t Salk. 228. 4 Mod. 282.
u See Vol. I. pag 126.
w 2 Rep. §. 1.
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life, remainder to the heirs of B : now, if A dies before B, the remainder is at an end ; for during B's life he has no heir, nemo eft haeres viventis : but if B dies firft, the remainder then immediately v7efts in his heir, who will be entitled to the land on the death of A. This is a good contingent remainder, for the poffibility of B's dying before A is potentia propinqua, and therefore allowed in law
x. But a remainder to the right heirs of B (if there be no fuch perfon as B in effe) is void
y. For here there muft two contingencies happen ; firft, that fuch a perfon as B fhall be bord ; and, fecondly, that he fhall alfo die during the continuance of the particular eftate ; which make it potentia remotiffima, a moft improbable poffibility. A remainder to a man's eldeft fon, who hath none, (we have feen) is good ; for by common poffibility he may have one ; but if it be limited in particular to his fon John, or Richard, it is bad, if he have no fon of that name ; for it is too remote a poffibility that he fhould not only have a fon, but a fon of a particular name
z. A limitation of a remainder to a baftard before it is born, is not good
a : for though the law allow the poffibility of having baftards, it perfumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the perfon who is to take it.
A remainder may alfo contingent, where the perfon to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in café B furvives him, then with remainder to B in fee : here B is a certain perfon, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his furviving A. During the joint lives of A and B it is contingent ; and if B dies firft, it never can veft in his heirs, but is for ever gone ; but if A dies firft, the remainder to B becomes vefted.
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x Co. Litt. 378.
y Hob. 33.
z 5 Rep. 51.
a Cro. Eliz. 509.
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Contingent
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C intiongentremainders of either kind, if they amount to a freehold, cannot be limited on an eftate for years, or any other particular eftate, lefs than a freehold. Thus if land be granted to A for ten years, with remainder in fee to the right heirs of B, this remainder is void
b : but if granted to A for life, with a like remainder, it is good. For, unlefs the freehold paffes out of the grantor at the time when the remainder is created, fuch freehold remainder is void : it cannot pafs out of him, without vefting fomewhere ; and in the café of a contingent remainder it muft veft in the particular tenant, elfe it can veft no where : unlefs therefore the eftate of fuch particular tenant be of a freehold nature, the freehold cannot veft in him, and confequently the remainder is void.
Contingent remainders may be defeated, by deftroying or determining the particular eftate upon which they depend, before the contingency happens whereby they become vefted
c. Therefore when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation, furrender, or other methods, deftroy and determine his own life eftate, before any of thofe remainders veft ; the confequence of which is that he utterly defeats them all. As, if there be tenant for life, with remainder to his eldeft fon unborn in tail, and the tenant for life, before any fon is born, furrenders his life-eftate, he by that means defeats the remainder in tail to his fon : for his fon not being in effe, when the particular eftate determined, the remainder could not then veft ; and, as it could not veft then, by the rules before laid down, it never can veft at all. In thefe cafes therefore it is neceffary to have truftees appointed to preferve the contingent remainders ; in whom there is vefted an eftate in remainder for the life of the tenant for life, to commence when his determines. If therefore his eftate for life determines otherwife than by his death, their eftate, for the refidue of his natural life, will then take effect, and become a particu-
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b 1 Rep. 130.
c Ibid. 66. 135.
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lar eftate in poffeffion, fufficient to fupport the remainders de pending in contingency. This method is faid to have been invented by fir Orlando Bridgman, fir Geffery Palmer, and other eminent council, who betook them felves to conveyancing during the time of the civil wars ; in order thereby to fecure in family fettlements a provifion for the future children of an intended marriage, who before were ufually left at the mercy of the particular tenant for life
d : and when, after the reftoration, thofe gentlemen came to fill the firft offices of the law, they fupported this invention within reafonable and proper bounds, and introduced it into general ufe.
Thus the ftudent will obferve how much nicety is required in creating and fecuring a remainder ; and I truft he will in fome meafure fee the general reafons, upon which this nicety is founded. It were endlefs to attempt to enter upon the particular fubtilties and refinements, into which this dictrine, by the variety of cafes which have occurred in the courfe of many centuries, has beenfpun out and fubdivided : neither are they confonant to the defign of thefe elementary difquifitions. I muft not however omit, that in devifes by laft will and teftament, (which, being often drawn up when the party is inops concilii, are always more fovoured in conftruction than formal deeds, which are perfumed to be made with great coution, fore-thought, and advice) in thefe divifes, I fay, remainders may be created in fome meafure contrary to the rules before laid down : though our lawyers will not allow fuch difpofitions to be ftrictly remainders ; but call them by another name, that of executory devifes, or devifes hereafter to be executed.
A nexecutory devife of lands is fuch difpofition of them by will, that thereby no eftate veftas at the death of the devifor, but only on fome future contingency. It differs from a remainder in three very material points : 1. That it needs not any particular
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d See Moor. 486. 2 Roll. Abr. 797. pl. 12. 2 Sid. 159. 2 Chan. Rep. 170.
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eftate
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eftateto fupport it. 2. That by it a fee-fimple or other lefs eftate, maybe limited after a fee-fimple. 3. That by this means a remainder may be limited of a chattel intereft, after a particular eftate for life created in the fame.
1. Thefirft café happens when a man devifes a future dftate, to arife upon a contingency ; and, till that contingency happens, does not difpofed of the fee-fimple, but leaves it to defcend to his heir at law. As if one devifes land to a feme-fole and her heirs, upon her day of marriage : here is in effect a contingent remainder without any particular eftate to fupport it ; a freehold commencing in futuro. This limitation, though it would be voidin a deed, yet is good in a will, by way of executory devife
e. For, fince by a devife a freehold may pafs without corporal tradition or livery of feifin. ( as it muft do, if it paffes at all) therefore it may commence in futuro ; becaufe the principal reafon why it cannot commence in futuro in other cafes, is the neceffity of actual feifin, which always operates in praefenti. And, fince it may thus commence in futuro, there is no need of a particular eftate to fupport it ; the only ufe of which is to make the remainder, by it's unity with the particular eftate, a prefent intereft. And hence alfo it follows, that fuch an executory devife, not being a prefent intereft, cannot be barred by a recovery, fuffered before it commences
f.
2. By executory devife a fee, or other lefs eftate, may be limited after a fee. And this happens where a devifor devifes his whole eftate in fee, but limits a remainder thereon to commence on a future contingency. As if a man devifes land to A and his heirs ; but, if he dies before the age of twenty one, then to B and his heirs : this remainder, though void in a deed, is good by way of executory devife
g. But, in both thefe fpecies of executory devifes, the contingencies ought to be fuch as may happen within a reafonable time ; as within one or more life or in being, or within
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e 1 Sid. 153.
f Cro. Jac. 593.
g 2 Mod. 289.
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a moderate
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a moderate term of years ; for courts of juftice will not indulge even wills, fo as to create a perpetuity, which the law abhors
h : becaufe by perpetuities, ( or the fettlement of an intereft, which fhall go in the fucceffion perfcribed, without any power of alienation
I ) eftates are made incapable of anfwering thofe ends, of focial commerce, and providing for the fudden contingencies of private life, for which property was at firft eftablifhed. The utmoft length that has been hitherto allowed, for the contingency of an executory devife of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards. As when lands are devifed to fuch unborn fon of a feme-covert, as fhall firft attain the age of twenty one, and his heirs ; the utmoft length of time that can happen before the eftate can veft, is the life of the mother and the fubfequent infancy of her fon : and this hath been decreed to be a good executory devife
k.
3. By executory devife a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed : for by law the firft grant of it, to a man for life, was a total difpofition of the whole term ; a life eftate being efteemed of a higher and larger nature than any term of years
l. And, at firft, the courts were tender, even in the café of a will, of reftraining the devifee for life from aliening the term ; but only held, that in café he died without exerting that act of ownerfhip, the remainder over fhould then take place
m : for the reftraint of the power of alienation, efpecially in very long terms, was introducing a fpecies of perpetuity. But, foon afterwards, it was held
n, that the devifee for life hath no power of aliening the term, fo as to bar the remainder-man : yet in order to prevent the danger of perpetuities, it was fettled
o, that, though fuch remainders may be limited to as many perfons fucceffively as the devifor thinks proper, yet they muft all be in effe
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h 12 Mod.187. 1 Vern. 164.
I Salk 229.
k Forr. 232.
l 8 Rep. 95.
m Bro. tit. chatteles. 23. Dyer. 74.
n Dyer. 358. 8 Rep. 96.
o 1 Sid. 451.
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during
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during the life of the firft devifee ; for then all the candles are li9ghted and are confuming together, and the ultimate remainder is in reality only to that remainder-man who happens to furvive the reft : or, that fuch remainder may be limited to take effect upon fuch contingency only, as muft happen ( if at all ) during the life of the firft devifee
p.
Thus much for fuch eftates in expectancy, as are created by the exprefs words of the parties themfelves ; the moft intricate title in the law. There is yet another fpecies, which is created by the act and operation of the law itfelf, and this is called a reverfion.
III. A neftate in reverfion is the refidue of an eftate left in the grantor, to cimmence in poffeffion after the determination of fome particular eftate granted out by him
q. Sir Edward Coke
r defcribes a reverfion to be the returning of land to the grantor or his heirs after the grant is over. As, if there be a gift in tail, the reverfion of the fee is, without any fpecial refervation, vefted in the donor by act of law : and fo alfo the reverfion, after an eftate for life, years, or at will, continues in the leffor. For the fee-fimple of all lands muft abide fomewhere ; and if he, who was before poffeffed of the whole, carves out of it any fmaller eftate, and grants it away, whatever is not fo granted remains in him. A reverfion is therefore never created by deed or writing, but arifes from conftruction of law ; a remainder can never be limited, unlefs by either deed or devife. But both are equally transferable, when actually vefted, being both eftates in praefenti, though taking effect in futuro.
The doctrine of reverfions is plainly derived from the feodal conftiution. For, when a feud was granted to a man for life, or to him and his iffue male, rendering either rent, or other fervices ; then, on his death or the failure of iffue male, the feud was de-
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p Skinn. 341. 3 P. W
ms. 258.
q Co. Litt. 22.
r 1 Inft. 142.
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termiued
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termined and refulted back to the lord or proprietor, to be again difpofed of at his pleafure. And hence the ufual incidents to reverfions are faid to be fealty and rent. When no rent is referved on the particular eftate, fealty however refults of courfe, as an incident quite infeparable, and may be demanded as a badge of tenure, or acknowlegement of fuperiority ; being frequently the only evidence that the lands are holden at all. Where rent is referved, it is alfo incident, though not infeparably fo, to the reverfion
s The rent may be granted away, referving the reverfion ; and the reverfion may be granted away, referving the reverfion ; and the reverfion may be granted away, referving the rent ; by fpecial words : but by a general grant of the reverfion, the rent will pafs with it, as incident thereunto ; though by the grant of the rent generally, the reverfion will not pafs. The incident paffes by the grant of the principal, but not e converfo : for the maxim of law is, “accefforium non ducit, fed fequitur, fuum principale
t.”
These incidental rights of the reverfioner, and the refpective modes of defcent, in which remainders very frequently differ from reverfions, have occafioned the law to be careful in diftinguifhing the one from the other, however inaccurately the parties themfelves may defcribe them. For if one, feifed of a paternal eftate in fee, makes a leafe for life, with remainder to himfelf and his heirs, this is properly a mere reverfion
u, to which rent and fealty fhall be incident ; and which fhall only defcend to the heirs of his father's blood, and not to his heirs general, as a remainder limited to him by a third perfon would have done
w : for it is the old eftate, which was originally in him, and never yet was out of him. And fo likewife, if a man grants a leafe for life to A, referving rent, with reverfion to B and his heirs, B hath a remainder defcendible to his heirs general, and not a reverfion to which the rent is incident ; but the grantor fhall be intitled to the rent, during the continuance of A's eftate
x.
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s Co. Litt. 143.
t Ibid. 151. 152.
u Cro. Eliz. 321.
w3 Lev. 407.
x1 And. 23.
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In
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Ch. 11.
In order to affift fuch perfons as have any eftate in remainder, reverfion, or expectancy, after the death of others, againft fraudulent concealments of their deaths, it is enacted by the ftatute 6 Ann. c. 18. that all perfons on whofe lives any lands or tenements are holden, fhall ( upon application to the court of chancery and order made thereupon) once in every year, if required, be produced to the court, or it's commiffioners ; or, upon neglect or refufal, they fhall be taken to be actually dead, and the perfon entitled to fuch expectant eftate may enter upon and hold the lands and tenements, till the party fhall appear to be living.
Before we conclude the doctrine of remainders and reverfions, it may be proper to obferve, that whenever a greater eftate and a lefs coincide and meet in one and the fame perfon, without any intermediate eftate
y, the lefs is immediately annihilated ; or, in the law phrafe, is faid to be merged, that is, funk or drowned, in the greater. Thus, if there be tenant for years, and thereverfion in fee-fimple defcends to or is purchafed by him, the term of years is merged in the inheritance, and fhall never exift any more. But they muft come to one and the fame perfon in one and the fame right ; elfe, 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 reverfion in fee his executor, whereby the term of years vefts alfo in him, the term fhall not merge ; for he hath the fee in his own right, and the term of years in the right of the teftator, and fubject to is debts and legacies. So alfo, if he who hath the reverfion in fee marries the tenant for years, there is no merger ; for he hath the inheritance in his own right, the leafe in the right of his wife
z. An eftate-tail is an exception to this rule : for a man may have in his own right both an eftate-tail and a reverfion in fee ; and the eftate-tail, though a lefs eftate, fhall not merge in the fee
a. For eftates-tail are protected and preferved from
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y 3 Lev. 437.
z Plow. 418. Cro. Jac. 275. Co. Litt. 338.
a 2 Rep. 61. 8. Rep. 74.
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Y
merger
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The Rights of Things.
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merger by the operation and conftruction, though not by the exprefs word, of the ftatute de donis : which operation and conftruction have probably arifen upon this confideration ; that, in the common cafes of merger of eftates for life or years by uniting with the inheritance, the particular tenant hath the fole intereft in them, and hath full power at any time to defeat, deftroy, or furrender them to him that hath the reverfion ; therefore, when fuch an eftate unites with the reverfion in fee, the law confiders it in the light of a virtual furrender of the inferior eftate
b. But, in an eftate-tail, the café is otherwife : the tenant for a long time had no power at all over it, fo as to bar or to deftroy it ; and now can only do it by certain fpecial modes, by a fine, a recovery, and the like
c : it wouldtherefore have been ftrangely improvident, to have permitted the tenant in tail, b purchafing the reverfion in fee, to merge his particular eftate, and defeat the inheritance of his iffue : and hence it has become a maxim, that a tenancy in tail, which cannot be furrendered, cannot alfo be merged in the fee.
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b Cro. Eliz. 302.
c
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