de bonis non of Thomas Allen and John Allen, his son.

The title of Isabella was, that a moiety of the said term was merged in the inheritance, for that John Saunders, 20th August 1662, assigned the whole to Thomas Harris and John Allen, who was then heir at law to the reversion in fee, and grandfather of the said Isabella; so that a moiety of the said term was merged in him, and Isabella had recovered the said moiety in ejectment, and was then in possession thereof. The plaintiff therefore exhibited his bill against the defendant, to have one moiety of the term confirmed to him, which was then claimed by the administrator, de bonis non, and that Isabella might make a new grant of the other moiety which was merged as aforesaid.

And the court decreed that the plaintiff should hold the premises during the remainder of the term, notwithstanding the merger of the moiety, and that the defendant Isabella should make a further assurance of the remainder of the said term, so that in this case the court clearly and unequivocally recognized the law of merger, and its application to one moiety of the term; for the terms of the decree are, that the plaintiff should enjoy notwithstanding the merger of the moiety and the court extended its relief, by decreeing that a conveyance should be made of that moiety, for the residue of

the term by Isabella, in whose estate, when vested in her ancestor, the moiety of the term had been merged. This case then is an authority for the general assertion which has been made, that equity will support the interest of the cestui que trust, and will also order a conveyance to revive the legal estate, when such conveyance is requisite to the due administration of justice.

On this case other observations present themselves. It shews that equity will interfere, and administer relief, even when the merger has been a consequence of the act of the trustee of the term which is merged; and will extend its relief even against the heir of that person, although no fraud is imputable to this person or his heirs. The ground of relief in these cases is, that the merger of the term is an accident prejudicial to one of the parties interested, contrary to the agreement between them, and their intention, and perhaps in some degree on the presumed agreement, on the part of the reversioner, that he will be a trustee for the purposes declared of the estate which is merged.

From Cheney's case it appears that this was the law prior to the statute of uses; and if it was the law at that time it must be the law at this day. Without the exception in the statute of uses which saves the former estate of a releasee, feoffee, &c. to uses, it should seem that at law the estate, previously in the

feoffee, releasee, &c. would have merged; and that the legislature, aware of this application of the law, and also of the controlling jurisdiction of a court of equity, placed the case on the footing on which it stood in equity, in those instances in which the trustee would not have been compelled to convey the estate, of which uses were declared, till he had secured to himself the same degree of ownership, which he had before his former estate was merged, by the acceptance, or descent, of the estate of which uses were declared.

Before the observations on the case of Saunders and Bournford are closed, it will be material to observe that for the claim of the administrator de bonis non of Thomas Allen and John Allen his son, there was not the least pretence at law or in equity. There either was a merger of the term for a moiety or not: if there was not any merger, then the whole term continued to Harris the surviving trustee; and if the term was merged for a moiety, the moiety of the term must have been merged in the inheritance; and no one except the heir at law, could have supported a claim in respect of the other moiety of the lands comprised in the term.

The consideration of this point of equity also arose on the Duke of Norfolk's case;(a)

(a) 3 Ch. Ca. 15.

and though in that case the term was extinguished by surrender, and not by merger, yet the reasoning is equally applicable: and in delivering his opinion on that case, Lord Chief Baron Montague said, this term is gone indeed, and merged in the inheritance, yet the trust of that term remains in equity; and if this trust be destroyed by him, that had it assigned to him, this court (the chancery) has full power to set it up again, and to decree the term to him to whom it did belong, or a recompence for it.

In Villers v. Villers, (a) it was insisted, on one side, that a term of sixty years was merged, by being created to the same person to whom the fee was devised, who had likewise the reversionary interest in another term for ninety-nine years; but Mr. Villers's counsel, on their side, contended there was no merger, because there was a trust of the term that kept the term separate, and consequently it was not merged.

This argument may be tenable in equity, when a distinct right is in a stranger under the trusts; but then the legal estate merges, and equity interferes only to sustain the interest of the cestui que trust.

Most of the cases cited as applicable to the point under consideration, have arisen on

(a) 2 Atk. 72.

the merger of the estate, charged with the trust, in the estate which the trustee had in his own right. Cases may occur in which the estate of the trustee, held in his own right, may become merged in an estate, conveyed to him, or devolving on him by descent. Under these circumstances, the doctrine of merger is, on the one hand, equally applicable between these estates; on the other hand, courts of equity are equally open to afford relief to the trustee for the purpose of giving him the full benefit of his own estate. The equity of the trustee is equally as strong as the equity of the cestui que trust; and the court would not order the trustee to convey, till the time of his estate was expired, or without allowing him to make such a conveyance as would give him a legal title to an estate, of the same extent and equally beneficial with his former

estate.

Though a trust will not prevent the merger of one of two legal estates, (a) 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. For this purpose there is a general rule in equity, admittinghowever of some exceptions,

(a) Cooke v. Cooke, 2 Atk. 67. Willoughby v. Willoughby, 1 Term Rep. 766. Goodright v. Sales, 2 Wils. 331. Villers v. Villers, 2 Atk. 72. Capel v. Girdler, 9 Ves. 509.