has his estate of inheritance, and words of appropriation of the freehold to the inheritance will be proper.

The words," and as to, for, and concerning all that part or share of and in the "said messuages, &c. in which the said "A. hath an estate of inheritance in re"mainder as aforesaid, and of and in every "part, &c. to the use of the said A. his "heirs and assigns;" or with such other variation, as the circumstances may require.

In this place, and as relevant to these observations, the case of Oakley v. Smith (a) may be stated. In that case two persons, tenants in common, in tail, of a copyhold tenement, agreed on a partition, and by that agreement, each tenant was to have particular parcels of the copyhold, and afterwards each person made a surrender to the other, of the parcels allotted for that person. Smith, the eldest son of one of the tenants in tail, contended that the intail subsisted in a moiety of the original moiety of his mother: thereby meaning the moiety of the entirety of those lands, which were allotted to her; and on a rehearing lord keeper Henley made a decree in his favor, on the ground that the several daughters only barred a moiety of their respective estates, viz. allotments; and this decree was

(a) Ambler, 368.

perfectly right in principle. It may be supported by the strongest arguments. As to the particular lands, surrendered by each tenant in common, that person was tenant in tail of one moiety only thereof.

Therefore as to the intail no more was affected by the surrender, than the lands comprised in the surrender, since the surrender of each daughter, did as to the intail pass only her original moiety of the particular lands contained in her own surrender: and not the moiety of those lands which, on the partition, were allotted to herself: so that although the several surrenders comprised all the lands, yet the surrender of each tenant in tail, was, as to the intail, confined to the particular lands allotted to her sister; and consequently' neither of the tenants in tail did any act to bar the intail, in her original moiety of the lands, taken by her on the partition: and therefore as to one moiety of the lands in each allotment, there was a subsisting intail.

The plaintiff, it must be remembered, claimed and recovered a moiety of those particular lands, which were surrendered to his mother on the partition, and not a moiety of a moiety, or a fourth part of these lands; and it was a moiety of the intirety of these lands to which he was really intitled; for his mother had a moiety in all the lands, and her surrender barred her intail

in her moiety of those lands only which were comprised in her surrender, leaving her original moiety in the lands allotted to her, altogether unaffected by her surrender.

1

As to the issue of the other sister, the same observations apply to the lands which she received under the allotment made to her.

r

In short, after the partition and the surrenders made to give effect to the same, each party had an estate-tail'in one moiety, and an estate in fee-simple in the other moiety of the lands comprised in her allotment. That she had an estate in fee in one moiety of these lands was the consequence of her sister's surrender.

That she had only an estate-tail in the other moiety, arose from the want of a surrender by herself of that moiety: so that the estate-tail was in her original moiety of the lands allotted to herself, and her estate in fee was in that moiety which she received under the surrender of her sister as part of the transaction of partition.

C.

The difference between this case and Church and Edwards, is, that in Church and Edwards the title was complete by means of the learning on merger. The base fee derived from the estate-tail merged in the reversion in fee. At least this must be the result of admitting that the estate-tail and

the reversion in fee of each person, were several estates in the same individual share; and that the fine of one of them gave that person a complete ownership and dominion over the moiety in which she had the reversion in fee. While in the case in Ambler, the title was defective for a moiety of the lands in the surrender, because the surrenderor never had any estate-tail in that moiety.

It was intended to have taken a view of the nature of cross remainders, as part of this chapter; but as such a view would have been only a repetition of one of the tracts already published, (b) and also of part of the intended additions to the Essay on the Quantity of Estates, it is not deemed justifiable to introduce the observations at large, into this volume. Suffice it, therefore, to say, that under cross remainders, each person has a distinct estate, and only one estate, in each distinct part, although there may be one hundred parts and not two estates in any part.

And the reader who wishes to pursue the author's arrangement of the subject of this volume should, at this point, read the tract on cross remainders.

(b) See Tracts on Cross Remainders, &c.

CHAP. IX.

First, That the several estates must be immediately expectant on each other.

Secondly, That the more remote estate must be without any intervening vested estate, and also without any intervening contingent remainder created in the same instant of time, and by the same means as gave origin to the other estates. Thirdly, That the determination, or acquisition of an intermediate estate may be the cause of merger, as between estates kept distinct by means of the intermediate estate.

And,

THE two first heads will be blended under one general view of the subject.

From all the cases which have been determined, it may be collected that (with the exceptions which will be noticed,) the two estates must be the two vested estates, which are to take effect immediately after each other, without any intermediate vested estate; or at least, without any intervening remainder in contingency, arising under the same conveyance by which the former of these estates is created.