Thus, if land be given to A. and B. during their joint lives, remainder to the survivor in fee, this remainder, immediately on the death of either, becomes vested in possession in the survivor. It followed from this rule, that so long as a remainder was in contingency, it always required the continuing support of the particular freehold estate (c). So that, if that estate by any means came to an end before the contingency happened, the remainder was altogether defeated (d). For before the happening of the contingency, there was no person in whom the remainder could vest, and (by the rule under consideration) it could no longer exist as a contingent remainder, because the particular estate was determined. For example, if A. were tenant for life, with remainder to B.'s eldest son, then unborn, in tail, and A. died before the contingency happened, that is, before B. had a son, -the remainder was absolutely gone; for the particular estate was determined before the remainder could vest (e). So strict was this rule, that, in one case, where A., tenant for life under a will, with remainder to his own eldest son in tail, died without issue born, but leaving his wife enceinte, and after his death a posthumous son was born; it was held, that this son could not take the land by virtue of the remainder, the particular estate having determined before there was any person actually in existence in whom the remainder could vest. But this decision was reversed in the House of Lords; and the law on this subject has now been declared by a statute of the year 1698, which enacts that posthumous children shall be capable of taking in remainder, in the same manner as if they had been born in their father's lifetime (f).

(c) Archer's Case, ubi sup.

(d) Purefoy v. Rogers, (1671) 2 Saund. 386, 387.

(e) Reeve v. Long, (1694) 1 Salk.

(f) 10 & 11 Will. 3, c. 16. (The Janguage of the statute is by no means so wide as the construction usually put upon it.)

[A contingent remainder was also formerly defeated, not only by the natural determination or expiration of the particular estate on which it depended, but even by the premature determination of that estate, e.g., when the estate was determined prematurely by the voluntary act of the particular tenant himself (g). So that a tenant for life, with remainder to his unborn son in tail, remainder over to a stranger in fee, might, before a son was born, by destroying his life estate (e.g., by a surrender of his life estate to the ultimate fee simple remainder-man) have defeated the contingent remainder to his son (h). It was, therefore, necessary in such a case to have trustees appointed to preserve the contingent remainders, that is to say, persons interposed between the tenant for life and the contingent remainder-man, and in whom there was vested an estate for the natural life of the tenant for life. And then, if the estate for life determined otherwise than by death,-for example, by the tenant for life's wrongful alienation or surrender, -the estate of the trustees took effect during the residue of the natural life of the tenant for life, and that estate in the trustees was sufficient to support the remainder, or successive remainders, depending in contingency. This method is said to have been invented by Sir Orlando Bridgman and his contemporaries during the Civil War.]

But the liability of contingent remainders to destruction has now been materially altered. For, by the Real Property Act, 1845, s. 8, it has been protected against the premature determination of the prior particular estate, that statute enacting, that "a contingent remainder "existing at any time after the 31st day of December, 1844, shall be, and if created before the passing of "that Act, shall be deemed to have been,-capable of "taking effect, notwithstanding the determination by "forfeiture, surrender, or merger, of any preceding estate (g) Archer's Case, (1598), 1 Rep. (h) Purefoy v. Rogers, (1671) 66 b. 2 Saund. 386, 387.

"of freehold, in the same manner, in all respects, as "if such determination had not happened." And by the Contingent Remainders Act, 1877, it has been protected (to some extent) even against the natural expiration of the prior particular estate, that statute enacting, that every contingent remainder created by any instrument (including a will) executed after the 2nd August, 1877, which would have been valid as an executory limitation, shall (in the event of the prior particular estate determining before the contingent remainder vests) be capable of taking effect in all respects as if it had originally been created as an executory limitation. Of the nature of executory limitations, we shall hereafter speak (i).

Closely connected with the subject of remainders, and with one another, are two highly technical rules of English Law, viz., the Rule in Shelley's Case, and the more general doctrine of Merger. The Rule in Shelley's Case, as propounded in Lord Coke's Reports, is in the following form:-That when the ancestor, by any gift or conveyance, takes an estate of freehold,, and in the same gift or conveyance an estate is limited (either mediately or immediately) to his heirs in fee or in tail, the word heirs is always, in such cases, a word of limitation, and not of purchase (k). That is to say, the word "heirs" is to be understood as expressing the quantity of estate which the ancestor is to take, and not as conferring any distinct estate on the persons who may become his heirs. And here let it be observed, that this is the ordinary force of the word "heirs." For if land is given to a man and his heirs, the man takes a fee simple; and the word "heirs" plainly operates as a mere limitation of the quantity of his estate. So also, where land is given to A. for his life, and on his decease to his heirs, or to the heirs of his body. In such a case, and by the effect of the Rule in Shelley's

(i) See post, bk. ii. pt. i. ch. ix.

(k) Shelley's Case, (1581) 1 Rep. 104 a.

Case, the heirs, or heirs of the body, of A. will not take in remainder, nor will A. himself take a mere life estate; but A. will take a remainder also, in fee or in tail. And, as that remainder will absorb (and merge) his life interest, the result upon the whole conveyance will be to give A. an estate in fee (or in tail, as the case may be) in possession. Even if another particular estate (for example, a life estate to B.), be interposed between the life estate of A. and the ulterior limitation to A.'s heirs (or to the heirs of A.'s body), that ulterior limitation will take effect in A. himself, but as a vested remainder only, because of the intervening estate in B. which will prevent the merger. And here, note, that if the estate interposed be a contingent remainder, A. will take the entire fee; for while the contingency is in suspense, there is nothing to prevent the consolidation of his life estate with his ulterior fee simple estate. Yet A. (in such a case) takes the entire fee sub modo only; that is to say, it will open and let in the intermediate estate, if and when the contingency happens (1).

With regard to the origin and reason of the Rule in Shelley's Case, opinion is somewhat divided. But the reasonable view appears to be, that it was introduced in the interests of the Crown and the feudal magnates, who, if it had been possible to split up every fee into two successive estates, the one in possession, held by a tenant for life, and the other in remainder, claimed as a purchaser by the expectant heir, would have been deprived of those numerous and profitable perquisites of forfeiture, escheat, wardship, marriage, and the like, which, for the most part, only accrued upon the descent of an estate in fee. However this may be, it is very material for the student to observe (1) That the rule is now so firmly fixed in our law, that not even an expressed intention on the part of the settlor will prevent it applying; (2) That (1) Lewis Bowles's Case, (1616) 11 Rep. 80.

S.C.-VOL. I.

it holds where both the limitations are equitable, as well as where they are both legal. In other words, the rule is not a rule of construction, but a rule of law; and it applies to equitable, as well as to legal interests (m).

The second of the two rules which we are now discussing is the doctrine of Merger, which is of far wider scope than the Rule in Shelley's Case, and is equally applicable to remainders and reversions. For it is a general principle of law, that where a greater estate and a less estate of the same kind coincide in one and the same person, without any intermediate estate (n), the less estate is immediately annihilated or merged, that is sunk or drowned, in the greater. [Thus, if there be a tenant for years, and the reversion in fee simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But in order to this merger of estates, the estates must come to one and the same person, in one and the same right; for if the freehold be in his own right, and he has the term in right of another (en auter droit), there is no merger. Thus, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; because he hath the fee in his own right, and the term of years in the right of the testator, subject to his debts and legacies. So, also, if he who hath the remainder in fee marries the tenant for life, there was no merger, even before the recent Married Women's Property Act; for he had the inheritance in his own right, and the lease in the right of his wife (e). Moreover, an estate tail is an exception to the general law of merger. For a man may have, in his own right, both an estate tail and a remainder

(m) The rule has lately been discussed, with great learning and ingenuity, by Lord Macnaghten, in the case of Van Grutten v. Foxwell, [1897] A. C. 658.

(a) Duncomb v. Duncomb, (1695)

3 Lev. 437. [It is very doubtful whether this decision is consistent with the Rule in Shelley's Case.E. J.]

(0) Jones v. Davies, (1860) 5 H. & N. 766.