for life, the resolution proceeds to distinguish the quantity of his estate, independently of its privileges, from the quality of that estate.

By the execution of the estate mentioned in this case, the merger of the estate-tail after possibility of issue extinct must be understood. (m) For all the purposes of merger an estate-tail after possibility of issue extinct is classed among estates for life, and is susceptible of merger as such.

Lewis Bowles's case admits the doctrine, though it is an immediate authority for the point, that an estate of freehold, with the privilege of committing waste merged by its union in an estate-tail, which eventually became an estate-tail after possibility of issue extinct; and the material point was whether, in right of this estate, the widow had the privilege of being exempt from punishment for waste committed. (n)

It was agreed in that case that tenant in tail after possibility of issue, hath a greater pre-eminence and privilege in respect of the quality of his estate, than tenant for life, but he hath not a greater quantity of estate than tenant for life. In respect of the

(m) Brooke, Surr. pl. 6. Watkins, 115. (n) Lewis Bowles's Case, 11 Rep.

quality of his estate, it tastes too much of the quality of an estate in tail, out of which it is derived.

But as to the quantity, he hath but an estate for life, and therefore, if he maketh a feoffment in fee, it is a forfeiture of his estate. So if fee or tail general descend or remain to tenant in tail after possibility, &c. the fee or estate-tail is executed. And by the statute of Westminster second, he in the reversion shall be received upon his default. And an exchange betwixt tenant for life, and tenant in tail after possibility is good, for their estates are equal.

So where land was given to W. and A. his wife in special tail, remainder to I. N. in tail, the remainder to the right heirs of I. N. The baron died without issue, and A. the feme survived and became tenant in tail after possibility of issue extinct, and took another husband and had issue, and after I. N. died without issue, to whom the feme is heir, and she died, the second husband shall be tenant by the curtesy ; for when the remainder in fee came to the feme tenant in tail, after possibility of issue, the freehold was extinct in the fee, and so A. was seised in fee.(0)

(0) Bro. Estates, pl. 25. Bro. Surrender, p. 6.

That Estates for Life may merge in each other, or in larger Estates.

One estate for life may merge in another estate for life. Even among estates of this denomination, there is a gradation. (a) Thus the objection that equal estates cannot merge is avoided. (b) An estate for the life of another person, more commonly known by the appellation of an estate pur autre vie, is as to the tenant himself, accounted of less extent than an estate for his own life.(c) Therefore an estate for a man's own life, will not merge in an estate which he has for the life of another person. But an estate for the life of another may merge in an estate which a man has for his own life,(d) though both estates are created by the same deed.

When A. has an estate for his own life, and a remainder for the life of another person, then, whether these estates are derived under several limitations to him in the same instrument, or from several limitations in distinct instruments, there will not be any merger of either of these estates. The estate for his

(a) Vin Abr. 356. Hurd v. Foy, 2 Roll's Rep. 483. 11 Rep. 81. Perk. s. 226. Shep. Touch. 341.

(b) 11 Rep. 83.

(c) 1 Inst. 42. a. 11 Rep. 83. Perk. s. 590. (d) 11 Rep. 83. Owen, 38.

own life will not merge in the estate of which he is tenant for the life of another person, because the estate for the life of that person, is less than the estate for his own life; and the estate for the life of the other person, will not. merge in the estate for his own life, because the estate for his own life is the larger estate, and first in order of time; and there cannot ever be any merger unless the precedent estate may merge in the more remote estate. The opinion expressed in the fourth resolution of Lewis Bowles's case corresponds with the doctrine now advanced. The conclusion drawn in that resolution is, if a lease be made for life, the remainder to the husband and wife in special tail, the husband dieth without issue, now is the wife tenant in tail after possibility of this remainder; and if the tenant for life surrendereth to her, as he may, (for the life of him in remainder is higher than the life of another) now is she tenant in tail after possibility in possession. This point is further illustrated by the case of several limitations by the same instrument to the same person, for distinct estates, one for the life of a stranger, the other for the life of himself, for in that case there may be a merger.

It has been said that if A. is tenant for his own life with remainder to another for

the life of that person, and the remainderman conveys to A., that the estate in remainder will be merged in the preceding estate. This position confounds all distinctions on the learning on merger. It sup

poses a merger of the remainder in the particular estate by which it is preceded and by which it is supported. Agreeably to this opinion the remainder merges in the estate in possession, while the doctrine of merger always and uniformly requires that the estate in possession should be implicated in and absorbed by the estate in reversion or remainder. It is true that under the particular circumstances of the case which has been noticed, natural reason makes no difference whether it is one estate or the other which is absorbed; since if the estate in possession is the one to have continuance, it is precisely the same, in point of effect, as if the remainder was the prior estate and merged in the more remote one; for under one case as well as the other, A. would have an estate for his life, and for his life only.

By admitting the estate for the life of the party himself to be merged in the estate for the life of another person, this absurdity would arise. The act of merger would in intendment of law have abridged the interest of this person, and given him an estate for the life of another person, instead of an