In the case of The Earl of Pomfret v. Lord Windsor, 2 Ves. Sen., 482, Lord Hardwicke expresses an opinion that in case of a fine by a tenant for life, which, as soon as levied, operates a forfeiture, the remainderman or reversioner may enter presently, but is not bound so to do; and therefore the law gives him five years after the death of the tenant for life, because he has no reason to look until the natural determination of the estate. So Lord Ellenborough, in Doe, ex dem. Cook v. Danvers, 7 East, 321, says, that "If a forfeiture were committed, the party entitled to enter for it, was not bound to do so."
In the State of Massachusetts, this question has been twice decided, 9 Mass. Rep. 508, and 15 Mass. Rep. 472; the last of which cases was Wallingford v. Hearl, in which it appeared that the defendant's grandfather died seized in 1770, and the premises in question were assigned to the widow for her dower. She died in 1810, and the demandant entered in 1811. The tenant proved that he and those under whom he held had been in peaceable pos-session, claiming the premises, which were under improvement, for thirty years and upwards. It was contended for the tenant, that as the right of entry was barred by twenty years' possession, and as the reversioner may enter on the disseisor during the continuance of the particular estate, and more than that time having elapsed, the action could not be maintained. But Parker, Ch. J., in delivering the opinion of the court, says, "The demandant's right of entry accrued on the death of the tenant for life; that if he might have entered in consequence of the disseisin of the tenant for life, he was not bound to do so. He might well suppose that the tenant had entered under a contract with her who was seised of the freehold." "So in this case, the lessor might well suppose that Vanderheyden had purchased only the life estate of John McCrea, and he was not bound to look after it till the natural termination of the life estate. I am of opinion, therefore, I, that the lessor has shown a sufficient title to enable him to recover; 2, that there is no ground to presume a title in fee in John McCrea, but only a life estate as tenant by the curtesy; 3, that no forfeiture is shown of his life estate, because, I, it does not appear that he conveyed by feoffment with livery of seisin, and 2d, if it did so appear, the statute prohibits the discontinuance which such a conveyance would produce at common law; and therefore, as the estate of the reversioner is not affected, there is no forfeiture. I am aware that the cause of forfeiture is said to be the disloyalty of the tenant for life to his lord; but I consider the true criterion of forfeiture, the passing an estate which he ought not to pass; 4, that if a forfeiture was shown, yet the reversioner is not bound to enter until the natural termination of the life estate, as the law does not require him to look after the estate, the presumption being that the tenant in possession holds by such a conveyance as the tenant for life had a right to give. I am therefore of opinion that the plaintiff is entitled to judgment in the two first causes." * * * Judgment for the plaintiff.1
28 South Carolina, 486. - 1887.
Ejectment. - The will of William Ancrum gave the life use of certain real property to his widow with remainders as indicated in the opinion below. William A. Ancrum, having a life estate in remainder, purchased the interest of the widow (then Mrs. Julia Glass) and afterwards died while the widow was still alive. Further facts appear in the opinion.
1 Waste by the life tenant is, under special circumstances, another cause for forfeiture in many of the states. See N. Y. Code Civ. Pro., § 1655. - Ed.
McGowan, J. * * * As to the construction of the devise. "To my second son, William Alexander Ancrum, for and during the term of his natural life, and from and after his decease to his lawful issue, absolutely and in fee simple. But if my said second son, William Alexander Ancrum, should die, leaving no lawful issue at the time of his decease, then, and in such case,"over, etc. Without going again into the authorities upon the subject, we think this case is concluded by that of Melntyre v. Mclntyre, 16 S. C. 294, where the authorities are cited and the conclusion satisfactorily stated by Mr. Justice McIver as follows: "We think the authorities in this State conclusively show that where the word 'issue' is so qualified by additional words as to evince an intention that it is not to be taken as descriptive of an indefinite line of descent, but is used to indicate a new stock of inheritance, the rule (in Shelley's Case) does not apply." In that case, as in this, the antecedent estate was expressly "for life," and after the decease of the tenant for life, to the "issue." The superadded words there were, "and their heirs forever," while here they are "absolutely and in fee simple" - an equivalent phrase certainly quite as strong as the other. Besides, here there is still another limitation over to the third son, Thomas James Ancrum, "but if my said second son, William A. Ancrum, should die, leaving no lawful issue at the time of his decease," etc. We agree with the Master and Circuit Judge that William Alexander Ancrum took only a life estate in the premises described, and that there was a limitation over to his issue as purchasers.
Then, as to the plaintiff's exceptions. The first charges that it was error in the judge to hold "that when W. A. Ancrum purchased the life estate of Mrs. Julia Glass in the premises described, her life estate merged in the life estate of W. A. Ancrum." It was certainly just, when Chancellor Kent adopted the language of a great Master in the doctrine of merger, "that the learning under this head is involved in much intricacy and confusion." "Merger is described as the annihilation of one estate in another. It takes place usually when a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, whereby the less is immediately merged - that is, sunk or drowned in the greater." Garland v. Paplin, 32 Grat. 305; 2 Bl. Com. 177; 4 Kent, 100. Taking this definition, do the conditions exist here for a merger? Mrs. Glass had an estate for life, and (passing over the eldest son, who had died early) the next vested estate was that of William Alexander Ancrum, which was also for life, without any estate intervening. These respective estates were to be enjoyed successively, and not concurrently - that of the mother, Julia, coming first in the order of succession. But in 1837 W. A. Ancrum purchased the life estate of Julia and held both, claiming the premises as his own absolutely until he sold and conveyed them to Doby in 1857. Did not this make the case referred to in the books "of the incompatibility of a person filling at the same time the characters of tenant and reversioner in one and the same estate?"