At common law, whenever "a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated, or, in the law phrase, it is said to be 'merged,' that is, sunk or drowned in the greater."77 The doctrine of merger has been said to have its probable origin in the rule that no one can at the same time be lord and tenant, or in the inconsistency involved in allowing a person to have two distinct estates in point of fact, while one of these estates includes, at least in legal intendment, the time of both these estates.78 The latter consideration would appear to be that more generally applicable, and the inexpediency, or at least inutility, in the ordinary case, of recognizing a lesser estate as still existent in one who has the same right

Wright, 148 Mich. 290, 111 N. W. 751; Jefferson v. Bangs, 197 N. Y. 35, 134 Am. St. Rep. 856, 90 N. E. 109; Contra, Fidelity Ins., Trust & Safe-Deposit Co. v. Diety, 132 Pa. St. 36, 18 Atl. 1090.

76. Abney v. Abney, 182 Ala. 213, 62 So. 64; Nineteenth & Jef. ferson St. Presbyterian Church v. Fithian, 16 Ky. L. Rep. 581, 29 S. W. 143; Stroh v. O'Hearn, 176 Mich. 164, 142 N. W. 865; Whitney v. Salter, 36 Minn. 103, 1 Am. St. Rep. 656, 30 N. W. 755; Upton v. Merriman, 116 Minn. 358, Ann Cas. 1913B 491, 133 N. W. 977; Cockrill v. Hutchinson, 135 Mo. 67, 58 Am. St. Rep. 564, 36 S. W. 375; Morrison v. Roehl, 215 Mo. 545. 114 S. W. 981; Melms v. Pabst Brewing Co., 93 Wis. 140, 66

N. W. 244; Keller v. Fenske, 123 Wis. 435, 101 N. W. 378, 1055.

In Griffith v. Owen (1907), 1 Ch. 195, it was decided that the husband of the life tenant pur chasing the property at foreclosure held it for the benefit of the remaindermen. In a suggestive note upon this case, it was contended, in 20 Harv. Law Rev. at p. 639, that the doctrine is erroneous as being based on the assumption of a relation of confidence between life tenant and remainderman which is ordinarily non-existent.

77. 2 Blackst. Comm. 177. See also 4 Kent's Comm. 99.

78. 3 Preston, Conveyancing, 15.

Real Property.

[ Sec. 34 of possssion and control by reason of his having a greater estate in the land, is sufficiently apparent.

The estate which is merged, and as a result of the merger disappears, is necessarily an estate no greater in quantum than the estate in which it is merged.79 And consequently, while an estate for years may merge in an estate in fee simple or for life,80 and an estate for life may merge in an estate in fee simple,81 an estate in fee simple cannot merge in an estate for life, nor can a life estate merge in an estate for years.82 Since, as before stated, an estate pur auter vie is considered a less estate than an estate for one's own life, the former may merge in the latter, but not the latter in the former.83

A merger may take place as to a portion of a tract of land when one of the estates extends to the whole tract while the other extends to that portion only.84 It may also take place as to an undivided share of land by reason of the acquisition by one person of a greater and a less estate in that particular share85 or by his ac79. 3 Preston, Conveyancing 166 et seq.

80. 3 Preston, Conveyancing, 219. See post Sec. 59(e).

81. Harrison v. Moore, 64 Conn. 344, 30 Atl. 55; Wilder v. Holland, 102 Ga. 44, 29 S. E. 134; Field v. Peeples, 180 111. 376, 54 N. E. 304; Allen v. Anderson, 44 Ind. 395; Fox v. Long, 8 Bush. (Ky.) 551; Cary v. Warner, 63 Me. 571; Pynchon v. Stearns, 11 Mete. (Mass.) 304, 45 Am. Dec. 207; Webster v. Gilman, 1 Story (U. S.) 499, Fed. Cas. No. 17,335.

82. While this is the doctrine of the common law, that a life estate cannot merge in an estate for years, it may be questioned whether it would be recognized as absolutely controlling at the present day, in any jurisdiction in which the possibility of creating an estate for life out of a term of years is conceded. See post Sec. 173. If A, having an estate for ninety-nine years, can create an estate for life in favor of B., it would seem reasonable that the estate for life should merge in case the estates subsequently become vested in one person.

83. 3 Preston, Conveyancing 225; Boykin v. Ancrum, 28 S. C. 486, 13 Am. St. Rep. 698, 6 S. E. 305.

84. Badeley v. Vigurs, 4 El. & Bl. 71; Higgins v. California Petroleum & Asphalt Co., 109 Cal. 304, 41 Pac. 1087; Nellis v. Lath-rop, 22 Wend. (N. Y.) 121, 34 Am. Dec. 285.

85. Harrison v. Moore, 64 Conn. 344, 30 Atl. 55; Fox v. Long, 8 Bush. (Ky.) 551; Clark v. Parsons, 69 N. H. 147, 76 Am. St. Rep. 157, 39 Atl. 898; Allen v. Anderson, 44 Ind. 395; Preston, Conquisition of an estate in severalty, and also of a greater or less estate in an undivided share in the same land.85a

The estate which is merged, and as a result of the merger disappears, is always a particular estate, while the estate in which it is merged is the estate in reversion or remainder thereon, this becoming, by reason of the merger, an estate in possession, if there is no other particular estate to postpone the possession. There is no change, by reason of the merger, in the quantum of the estate which has thus absorbed the other estate.86

It is stated, as one of the conditions of merger, that the one estate must be immediately expectant on the other or, as the same idea is otherwise expressed, there must be no intervening estate.87 This means merely that in order that estate A may be merged in estate B., estate A must be the particular estate which gives to estate B its reversionary or remainder character, as depriving it of the right of immediate possession. As a result of this requirement, if a devise is made to A for life, and after A's death to B for life, and after B's death to C in fee simple, no merger would occur upon the estates of A and C passing into the same hands.88 And so if a subtenant for years acquires the original reversion in fee simple, there is no merger.89 Nor is there any merger when the lessee, having made a sublease, makes a concurrent lease to his own lessor for the term of the sublease.90 There is authority however to the effect that an interposed estate for years will not prevent the merger of a freehold estate in another freehold estate, for some purposes at least,91 and a veyancing, 89; Challis, Real Prop. (3rd Ed.) 87; compare Johnson v. Johnson, 7 Allen (Mass.) 196, 83 Am. Dec. 676.

85a. Larmon v. Larmon, 173 Ky. 477, 191 S. W. 110; Clark v. Parsons, 69 N. H. 147, 76 Am. St. Rep. 157, 39 Atl. 898.

86. 3 Preston, Conveyancing, 7.

87. 3 Preston, Conveyancing. 107; 2 Blackst. Comm. 177; 4

Kent's Comm. 99.

88. Duncomb v. Duncomb, 3 Lev. 437; Miller v. Talley, 48 Mo. 503.

89. Logan v. Green, 39 N. C. (4 Ired. Eq.) 370; Tolsma v Adair, 32 Wash. 383, 73 Pac. 347.

90. Burton v. Barclay, 7 Bing 745.

91. Bate's Case, 1 Salk. 254. mere interesse termini, a right to a term of years to commence in the future, not being an estate, will not do so.92

The books do not undertake to explain the reason of the rule just referred to, that merger will not take place if there is an intervening estate. A practical reason for the rule lies in the fact that otherwise the tenant of the intervening estate would frequently, by the merger, acquire the immediate right of possession at the expense of the tenant of the other estates, without any compensating advantage to the latter. The true reason, however, is possibly to be found in the theory that the process of merger is merely the opposite of the process by which a less estate is created from a greater93 and that it has consequently no proper application except when, of the two estates held by one person, one so immediately precedes the other as regards the right of possession, that it can be regarded as having been directly created out of the other, and not merely created out of a third estate which was itself created out of the other.

In equity, it is said, the doctrine of merger will apply only when it accords with the intention of the parties or is calculated to do justice.94 Conceding this to be so, it would seem that in jurisdictions where equitable defenses are allowed at law, or rules of equity are

92. Doe d. Rawlings v. Walker, 5 B. & C. 1ll; Anon., 2 Dyer 112a; Logan v. Green, 39 N. C. (4 Ired. Eq.) 370.

93. "Merger is the opposite of the process by which less estates are derived out of a greater, whereby one or more less estates may so become blended with a greater as to be indistinguishable from it in the same sense, and to the same extent, as was the case before the less estates were derived out of the greater." Challis, Real Prop. (3rd Ed.) 86.

94. Ingle v. Vaughan Jenkins (1900) 2 Ch. 368; Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Beauchamp v. Bertig, 90 Ark. 351 23 L. R. A. (N. S.) 659, 119 S. W 75; Jameson v. Hayward, 106 Cal 682, 46 Am. St. Rep. 268, 39 Pac. 1078; McLaughlin v. McLaughlin, 80 Md. 115, 30 Atl. 607; Hartz v. Hilsendegen, 182 Mich. 129, 148 N. W. 433; Clos v. Boppe, 23 N. J. Eq. 270; Bostwick v. Frankfield 74 N. Y. 207; Watson v. Dundee Mortgage & Trust Investment Co., 12 Ore. 474, 8 Pac. 548; Copeland v Burkett, (Tenn. Ch. App.) 45 S. W. 533; Spencer v. Austin, 38 Vt. 258; Garland v. Pamplin, 32 Grat. (Va.) 305; Aiken v. Milwaucontrolling upon the courts, the operation of the doctrine is considerably restricted. It does not appear, however, that equity ever interfered to prevent the operation of merger at law, however great the hardship.

According to the strict rule of the common law, in order that merger may occur, it is ordinarily necessary that one person hold the two estates in the same right,95 and consequently if he holds one on his own behalf and the other as executor or administrator96 or on behalf of his wife,97 there is, it has been said, no merger. There is some authority, however, to the effect that the exclusion of merger when the estates are held in different rights does not apply if a person having one estate in a fiduciary capacity or in right of another thereafter acquires the other estate in his own right by his voluntary act, as distinguished from the act of the law.98 Presumably, at the present day the courts, under the influence of equitable principles, would refuse to recognize a merger in any such case of estates held in different rights.