Merger is the absorption of a less estate into a greater where two estates meet in the same person. Thus, where an estate in fee simple and an estate of less duration, such as a life estate or an estate for years, meet in the same person, the smaller interest is said to be "merged"-literally drowned-in the greater and all-com1 Dall. (Pa.) 210. Cf. Attersoll v. Stevens, 1 Taunt 19S; Huntley v. Russell, 13 Q. B. Div. 572.

69 See Fetter, Eq. 209; Obrien v. Obrien, Amb. 107; Perrot v. Perrot 3 Atk. 94. See, also, Smyth v. Carter, 18 Beav. 78; Cahn v. Hewsey, 8 Misc. Rep. 3S4, 29 N. Y. Supp. 1107; Arment v. Hensel 5 Wash..152, 31 Pac. 464; Webster v. Peet, 97 Mich. 326, 56 N. W. 558; Perry v. Hamilton, 138 Ind. 271, 35 N. E. 836. Cf. Jackson v. Andrew, 18 Johns. 431.

70 Whitfield v. Bewit, 2 P. Wms. 240; Castlemain v. Craven, 22 Vin. Abr. 523, pl 11. And see Bewick v. Whitfield, 3 P. Wms. 267; Bateman v. Hotch-kin, 31 Beav. 486; Honywood v. Honywood, L R. 18 Eq. 306; Nicklase v. Morrison, 56 Ark. 553, 20 S. W. 414; Stowell v. Waddingham, 100 Cal 7, 34 Pac. 436.

71 See 1 Washb. Real Prop. (5th Ed.) p. 157; Smith v. Mattingly (Ky.) 28 S. W. 503.

72 1 Stim. Am. St. Law, § 1353. And see Dodge v. Davis, 85 Iowa, 77, 52 N. W. 2; Hatch v. Hatch, 31 Wkly. Law Bul 57; Donald v. Elliott, 11 Misc. Rep. 120, 32 N. Y. Supp. 821

73 6 Edw. I. c. 5.

74 1 Stim. Am. St Law, § 1332; Smith v. Mattingly (Ky.) 28 S. W. 503. But cf Danziger v. Silberthau (Super. Ct) 18 N. Y. Supp. 350.

Prising one.75 When a life tenant becomes the heir of the one who has the reversion or remainder in fee, or if he conveys his life interest to the owner of such reversion, a merger takes place, and the smaller estate has lost its separate existence.76 Where two estates meet in the same person and in the same right, it is imma terial, so far as merger is concerned, whether the union is produced by operation of law or by act of party. But where the two estates vest in the same person in different rights by operation of law, merger will not ensue. When the union occurred by act of party equity will not allow the estates to merge, though they would do so at common law.77 There will be no merger unless the two estates are of the same character. Therefore, an equitable life estate will not merge in a legal fee simple.78 A joint interest in a life estate will not merge in the reversion in severalty owned by one of the co-tenants.79 If an estate per autre vie is assigned to one who is a tenant for his own life, it will merge, since, as has been seen, the estate for his own life is greater than the estate per autre vie,80

Same - estates Per Autre Vie

38. When a tenant per autre vie dies before the cestui que vie without having disposed of his estate, the residue of the estate goes to his heirs, if it was given to the tenant and his heirs; otherwise, the personal representative takes it. Before the statute of 29 Car. II., the residue of the estate belonged to the one first taking possession, who was called the "general occupant."

75 Bradford v. Griffin, 40 S. C 468, 19 S. E. 76; Hovey v. Nellis, 98 Mich 374, 57 N. W. 255.

76 2 Bl Comm. 177; Co. Litt 41b; Mudd v. Mnllican (Ky.) 12 S. W. 263 Webster v. Gilman, 1 Story, 499, Fed. Cas. No. 17,335; Cary v. Warner, 6?. Me. 571; Davis v. Townsend, 32 S. C. 112, 10 S. E. 837; Bennett v. Trustee of M. E. Church, 66 Md. 36, 5 Atl. 291; Shelton v. Hadlock, 62 Conn. 143 Harrison v. Moore, 64 Conn. 344, 30 Atl. 55. But see Browne v. Bockorer. 84 Va. 424, 4 S. E. 745; In re Butler's Estate, 14 Pa. Co. Ct. R. 667.

77Edw. Prop. Land (2d Ed.) 130.

78 Martin v. Pine (Sup.) 29 N. Y. Supp. 995. For equitable estates, se post, p. 251.

79 See Jameson v. Hayward, 106 Cal. 682, 39 Pac 1078. And see post, v. 332, for joint estates.

80 Boykin v. Ancrum, 28 S. C. 486, 6 S. E. 305. But see Rosse's Case, Coke, 13a; Snow v. Boycott [1892] 3 Ch. 110.

39. The incidents of life estates in general attach to estates per autre vie.

There was a common-law rule that, if the tenant of an estate per autre vie died before the cestui que vie, whoever first took possession of the land could hold it for the remainder of the term. Such a person was called a "general occupant." 81 If, however, the tenant had leased or assigned his estate,82 or words of limitation, as heirs or executor, had been added in the creation of the estate, then these were entitled to the residue, and they were called "special occupants."83 But, by the statute of 29 Car. II.,84 general occupancy was abolished, and, when a tenant per autre vie died without having disposed of his estate, if the term was not limited to the heirs, then the executor took the residue, holding it as assets for the payment of debts.85 This act also gave the owner power to dispose of it by will.86 The usual incidents of a life estate attach to an estate per autre vie.87 And in some states apportionment of rent is provided for by statute,88

81 Co. Litt 41b; 2 Bl. Comm. 258.

82 Skelliton v. Hay, Cro. Jac. 554.

83 Mosher v. Yost, 33 Barb. (N. Y.) 277; Salter v. Boteler, Moore, 064; Bowles v. Poore, Cro. Jac. 282; Low v. Burron, 3 P. Wms. 262; Doe v. Luxton, 6 Term It. 289; Atkinson v. Baker, 4 Term R. 229; Doe v. Robinson, 8 Barn. & C. 296.

84 Chapter 3. And see 1 Stim. Am. St Law, § 1310.

85 Doe v. Lewis, 9 Mees. & W. 662. And the balance for the estate. Ripley v. Waterworth, 7 Ves. 425. But see Wall v. Byrne, 2 Jones & L. 118.

86 See, also, 1 Stim, Am. St Law, § 1335.

87 Co. Litt 41b.

88 1 Stim. Am. St Law, § 2025.