It is said, however, that both estates were for life, and therefore equal in degree and merger only takes place when a larger and smaller estate meet in the same person. The general rule is, that equal estates will not drown in each other, but there are well established exceptions. Were these estates equal in the sense of the rule? Looking at them from the point of view of W. A. Ancrum, one was an estate for the life of Mrs. Julia Glass, preceding his estate, and the other succeeding was for his own life. There seems to be something in the order in which the estates stand to each other in the matter of time. Chancellor Kent states the rule thus: "The merger is produced, either from the meeting of an estate of higher degree with an estate of inferior degree, or from the meeting of the particular estate and the immediate reversion in the same person. An estate for years may merge in an estate in fee or for life; and an estate pur autre vie, may merge in an estate for one's own life; and an estate for years may verge in another estate or term for years, in remainder or reversion. * * * To effect the operation of merger, the more remote estate must be the next vested estate in remainder or reversion, without any intervening estate, either vested or contingent; and the estate in reversion or remainder must be at least as large as the preceding estate."
It seems that even when the estates are theoretically equal, the first in the order of succession may merge in the next vested remainder, being in this respect somewhat like a surrender, which is the relinquishment of a particular estate in favor of the tenant of the next vested estate in remainder or reversion In the notes to the case of James v. Morey, 2 Cowen, 246, 14 A. D. 475; "Leading Cases in the American Law of Real Property," lately published (1887) by Sharswood & Budd, vol. 3, 231, the rule is thus stated: "The estate in reversion or remainder must be as large as, or larger than, the estate to be merged. 3 Prest. Conv. 51. The expression, 'as large, or larger,' must be, of course, taken in the technical sense; thus an estate for life is larger than an estate for years, although death may destroy the former estate long before the efflux of time has brought the latter to a conclusion. Thus, if a lease be made for years, with a remainder to the lessee for life, the estate for years will merge; but if there be an estate for life, with remainder to the life tenant for years, there will be no merger. Co. Litt. 54, b. In Shehan v. Hamilton, 4 Abb. App. 211, it is said that estates of equal degree do not merge; but whether this be strictly so or not, the effect of a merger will be produced by the unity of possession. An estate at will will merge in an estate for years. 3 Pres. Conv. 176. Estates for years may merge in each other or in estates for life. Estates for life will merge. Co. Litt. 338 b; Cary v. Warner, 63 Me. 571; Allen v. Anderson, 44 Ind. 395." We cannot say that the Circuit Judge committed error in holding that when W. A. Ancrum purchased the life estate of Mrs. Glass in the premises that estate merged in his estate.
Exceptions 2, 3, and 4 make the point, substantially, that the judge erred in holding that at the death of William A. Ancrum (1862) the rights of the issue in remainder attached, and from that time the possession of the parties was adverse, so as to put in motion the presumption of a grant from Mrs. Elizabeth B. Boykin, who reached her majority in 1864, two years after the death of her father, W. A. Ancrum, and more than twenty years before the commencement of the action. The life estate of Mrs. Glass was the first in the order of succession, and doubtless was expected to be the first to fall in; the fact, however, was otherwise, for she survived W. A. Ancrum for more than twenty years. It is true that, but for his purchase of her estate, W. A. Ancrum would never have reached the possession of his estate; and it is asked whether, under these circumstances, his right must be limited to his own life estate, which, though vested, he never enjoyed in possession, so as to make his death, and not hers, the time at which an action accrued to the remaindermen. At first view it is not obvious how an estate, which turned out to be the longest, could be drowned in one of shorter duration; but, according to the authorities, it seems that such was the necessary consequence of the merger. See Mangum v. Piester, 16 S. C. 330; 4 Kent, 99; 2 Pom. Eq. Jur., section 787, and notes, where it is said that: "An estate for years will merge in a reversionary term of years, even though the latter is of less duration," citing, among other authorities, Welsh v. Phillips, 54 Ala. 309. And Chancellor Kent says: "The estate in which the merger takes place is not enlarged by the accession of the preceding estate, and the greater or only subsisting estate continues after the merger precisely of the same quantity and extent of ownership as it was before the accession of the estate which is merged, and the lesser estate is extinguished," etc.
We cannot doubt that the premises were held adversely to all the world. During his life William A. Ancrum held them as his own absolutely. Shortly before his death (in 1857) he conveyed them to Joseph W. Doby, with the usual warranty of title. We do not see how the relinquishment of some of the remaindermen could affect the character of the possession as to those who did not relinquish. We do not, however, think that the defendants should have interest on the value of their improvements while they have the possession and use of the same.
The judgment of this court is, that the judgment of the Circuit Court, with the slight modification as to interest on the value of the improvements, be affirmed.1
2. Conventional Life-estates.
a. Created by act of parties.
(I.) By Deed.
30 New Jersey Law, 505. - 1860.
[Reported herein at p. 483.]
(2.) By Devise.