or extinguish the moiety of the term which the wife had, any more than in the other cases above said, because he had the inheritance in his own right, and the term in right of his wife, in which case the freehold and inheritance of the husband, wherein the wife has nothing, shall not merge the term of the wife. For the law, which carries in itself reason and equity, will not do prejudice to another, and here the wife is other than the person, who has the inheritance, and the marriage of husband and wife is a laudable thing, for which reason the law will not prejudice the wife in her chattels real, which are things of continuance, and of more value and worth than things personal. Nevertheless, the husband himself might have given away the wife's term by an express act, as if he had made a feoffment of the land, or a new lease, or the like; but forasmuch as he has not done this nor any thing else with the land, and has made no disposition at all of it, but has left it, to the judgment of the law, the law will preserve the estate of the wife, which estate, as to her, is disjoined from the freehold and the fee-simple.

So that the decision turned on the ground of protection to the interest of the wife, and not of the preservation of the joint-tenancy.

The reasoning in the subsequent part of the case is to be read as subject to this qualification !!

2d, As to the Destruction of contingent Remainders.

Notwithstanding an intervening contingent remainder, it seems to be an established position that the particular estate will merge in the next vested estate in reversion or remainder, whether the reversion or remainder accede to the particular estate, or the particular estate be an accession to the estate in reversion or remainder; and as well when this accession is by the act of the parties, as by express limitation; or by operation of law, as by descent; so as this act of the parties, or this operation of the law, (a) do not take place in the same instant of time, in which the particular estate is limited.

But as to this point, it seems, (b) the doctrine of merger does not extend to copyholds, so as to exclude and destroy a contingent remainder by the accession of one vested estate to another.

In Mildmay v. Hungerford (c) a copyhold at Newington, was devised to the plaintiff for life, remainder to his first and other sons in tail, remainder to the defendant, Sir Giles

(a) Kent v. Harpool, T. Jones, 76. Vent. 306. Hooker v. Hooker, Rep. T. Hardwicke, 13.

(b) See Fearne's Rem. 3d Edit. page 261.

(c) 2 Vern. 243.

Hungerford in fee. And the plaintiff being minded to make himself absolute owner of the estate, his wife being then privement ensient of a son, was advised that if he bought in the reversion in fee from Sir Giles Hungerford, and took a surrender thereof, to his own use, that would merge his estate for life, and consequently destroy the contingent remainder to his son, there being then no issue born; and this suit was commenced to have a security cancelled, which the plaintiff had given to the defendant for the purchase of the reversion in fee; and the ground of equity which the plaintiff alledged was, that he was deceived, in regard that at the time of filing his bill he understood, such surrender of the reversion would not bar the son then born, because the freehold and inheritance was in the lord, so not the like inconvenience as of freehold estates, at common law, in respect of contingent remainders, where there is none against whom to bring the præcipe. But on the point of merger, or no merger, the court gave no opinion.

But in the case of Pawsey v. Lowdall, (a) B. tenant for life of a copyhold, with a limitation to the heirs of his body begotten, surrendered to the lord of the manor, to

(a) 2 Rol. Abr. 749.

the use of the lord to do his will with it. B. died. The question was whether, admitting the limitation to the heirs, to operate as a remainder to them, (by purchase) the contrary of which was afterwards determined, such remainder was destroyed by the surrender of B.; and it was adjudged that the remainder was not destroyed, because the legal freehold was in the lord during the life of B. so that even a vested remainder-man could not have entered during the life of B.

And in Lane and Pannel (a) a feme covert and a stranger were joint-tenants for life of copyhold lands, with remainder to the heirs of the body of the baron and feme. The stranger surrendered his moiety to the husband and wife, and afterwards the husband surrendered the whole to B. in fee. The feme died leaving issue, afterwards the husband died. The question was, whether the remainder to the heirs of the husband and wife, vested in the issue. It was adjudged that when the stranger conveyed his moiety to the baron, the joint-tenancy between the stranger and feme covert was severed, and when the baron afterwards conveyed the whole to B., B. took an estate in one moiety for the life of the wife, defeasible by her on the death of her husband, and in the other moiety

for the life of the stranger; (a) and it seems that the surrender by the husband to B. in fee, did not destroy the contingent remainder. Mr. Fearne has concluded that the legal estate, being in the lord, the surrender of the husband passed no more than he legally might pass. But this conclusion, though correct, is not of much weight when applied to the doctrine of merger, since all the cases in which merger has taken place, are cases in which the particular tenant has not conveyed more than he might lawfully convey.

On the destruction of contingent remainders in copyholds, the learned Gilbert (b) has taken this distinction: if an estate be given to a copyholder for life, remainder to the right heirs of I. S. if the tenant for life die leaving I. S. there it seems clear that the remainder is destroyed; for, he observes, it cannot take effect as by the limitation it ought. But if tenant for life in that case had committed a forfeiture, or made a surrender, and afterwards had died in I. S.'s life-time, it seemed to be very clear that his right heirs might take; for his remainder was not to take effect after the determination of the interest of tenant for life, but after his death, and when that happened he was able

(a) Fearne 407. but see the case.

(b) Gilb. Ten. 249.