with the intention, and have preserved the term of years. But this form would have been free from objection. The term for years could not by any possible event have merged in the estate for life, because the estate for life was prior to the term for years, and a remainder cannot merge in the prior particular estate.

In the instance also of a lease (a) to one for the life of another person, with remainder to himself for his own life, the application of the learning on merger, might have been prevented, by limiting the lands to the lessee for the lives of himself and the other cestui que vie; by one connected clause, giving one entire estate, to continue for the several lives; or by limiting to the lessee first an estate for his own life, and secondly an estate to continue for the other life. Under either form of limitation, there might have been a grant of the privilege of being exempt from waste during the period of the life of the cestui que vie.-The former mode of limitation would have given one entire estate, and not several estates; and by the latter mode the estate in remainder would, in the intendment of law, and with a view to the learning of merger, have been less than the prec.ding estate and on that account the prior estate

(a) Rosse's Case, 5 Rep. 14. Utty Dale's Case, Cro. Eliz. Seymour's Case, 10 Rep.

would not have the capability of merger in the latter of these estates.

On cases of this description some further observations will be introduced, in different parts of this essay.

But though the intention is not the foundation or governing principle of the rule, yet there are many instances in which from favour to the intention, the law of merger is held to be inapplicable. It was in this sense, and with a view to such circumstances, that the expression at the commencement of this chapter was in all probability used.-Therefore, a contingent remainder created by a will, will not be defeated by a descent from the testator of the reversion in fee to the tenant for life whose estate precedes and supports the remainder: and a joint-tenancy to two or more of particular estates, will not be severed by a limitation of a remainder to one of them, in the same deed or will, which creates the particular estate. (b)

(b) Wiscot's case, 2 Rep. 60.

VOL. III.

E

CHAP. VI.

must

An Enumeration of the Circumstances which concur in order to accomplish the Operation of the Law of Merger.

FOLLOWING the points of difference suggested by the determined cases, and by opinions of acknowledged authority, the conclusion from these cases and opinions to the law on merger seems to be,

First, Two or more estates must meet in the same person, in the same lands, &c. or in the same part of the same lands, &c.

Secondly, The more remote estate must be the next vested estate in remainder or reversion, without any intervening vested estate; and also without any intervening interest by way of contingent remainder, created in the same instant of time, or by the same act which gives origin to the

other estates.

Thirdly, The estate in reversion or re

mainder must be as large as, or larger than, the preceding estate.

Fourthly, The several estates must be held in the same legal right; or when the estates are held in different legal rights, one of them must not be an accession to the other, merely by act of law.

Fifthly, The estate must not be privileged, either under the statute of uses, or the statute of intails.

Sixthly, The doctrine will not have effect, to alter the quality of one of two estates, in the same person, or to destroy a contingent remainder, when the several estates are limited, by the same deed or instrument, or take their effect in the same instant of time, and in some degree, by the same act, and some other concerned in the consequence of the

merger.

person

is

Seventhly, The doctrine does not apply to an estate for several lives, arising under the same limitation, as giving one undivided and entire time of continuance.

And, Eighthly, The union of two estates in the same person, by means of the joint act, of the respective owners of these estates, with an intention that the estate of their assignee should continue for the collective time of their several estates, will not be a cause of merger.

After examining these heads, and by that means introducing the circumstances, which, in a general point of view, give rise to the application of the doctrine of merger, or exclude it, some observations on its effect, will be added to shew,

First, The manner in which the doctrine affects the party himself, whose estate is merged.

Secondly, The situation in which it leaves. other persons, who have any claims on the estate which is merged, or any interests derived out of the same estate.

Thirdly, The effect which it produces on the estate, in which the merger takes place.

This arrangement will afford scope for observing on the mode, the degree, and the circumstances in which this doctrine affects persons who are,

1st, First and second mortgagees.

2d, Persons who have purchased from bankrupts.

3d, Persons who have estates in reversion.

4th, Persons who have estates in remainder.

5th, Who have estates by intireties.
6th, Who have joint estates.

7th, Who have estates in common.
8th, Who have estates in coparcenary.
9th, Who have interests in contingency.