such reversion be a chattel interest or a freehold, meet in one person in the same legal right, the term is extinct. But if a husband have a term in his own right, and the reversion comes to him in right of his wife, there is no merger; if, however, he acquires an estate by the curtesy, that, it is thought, would cause a merger. So if a man has the reversion in his own right, and the term comes to him in right of his wife, or as executor of the termor, there is no merger. But if a man possessed of a term as executor, purchase the reversion, the term becomes extinct. If A. be possessed of a term of years, and the reversion be assigned or bequeathed to him and B. for years as joint tenants, the first term is merged as to one undivided moiety of the land, and A. and B. become tenants in common of the land for the second term.1

If a term of years does not confer the legal estate, it is not necessary to require an assignment of it; it is only proper to ascertain that all the trusts of it have been satisfied.

If a term of years have been assigned to attend the inheritance, it is deemed part of the estate or interest to be transferred to the purchaser, and he must pay the expense of the assignment of it; but if a term has never been made attendant on the inheritance, it is an excrescence and an incumbrance, and must be got in by the vendor. In both cases, however, a proper party to assign must be constituted and produced by the vendor.

The propriety of getting in outstanding terms of years on a purchase or mortgage is clear and cannot be too strongly enforced, but no sufficient reason now exists for keeping the same on foot.

A term of years attendant on the fee protects from all mesne charges and incumbrances of which the purchaser has not notice, but not from any of which notice can be proved against him or his agents.

Crown debts and judgments used to be dreaded, for they were not easily ascertained, but now the search for them is simple and inexpensive, and they no longer constitute a reason for an attendant term.3

With respect to concealed equitable charges which may

See Wiscot's case, 2 Rep. 60. 23 Sug. V. & P. 9.

3 See 2 Vict. c. 11.

have been made by a vendor, it is sufficient to say if there be not notice, no protection is needed; and if notice can be proved, a term is of no avail. And the same may now be said of acts of bankruptcy.

And if a vendor has made a prior alienation of the legal estate, which he forgets or conceals, the assignment of a term to the purchaser in order to merge does not so operate, and the term exists and may be used as a protection, equally as if it had been assigned to a trustee for the purpose.

The only incumbrance that occurs to us, against which a term might be useful as a protection, is a concealed legal rent charge; but such a charge is seldom made, except to a wife, and if a claim by a feme covert is apprehended, a prudent purchaser would require her concurrence, and would rather pay the expense of the deed being acknowledged by her, himself, than rely for protection upon an attendant term. Of course in some cases terms may be usefully kept on foot as a protection against outstanding titles to dower, and a term should not be merged till it has been ascertained that no such title exists.

Even in bygone days, when titles were exposed to many dangers which do not now exist, it seemed to be acknowledged by conveyancers that it was not expedient to keep terms on foot, for in every well-drawn settlement by which they were created, they were attended by a proviso for cesser. And now many reasons concur why terms should be merged. 1. The heavy expense which attends the maintaining of them; besides the probable expense of constituting a proper party to assign, there is the certain expense of the abstract of title being enlarged, and deeds being multiplied or lengthened, with an attendant increase of stamp duty. 2. The inutility of a term, if the title be investigated with ordinary care. 3. The danger, in case of legal proceedings, of the term being at first overlooked, and upon being discovered, causing expense and perhaps a nonsuit. 4. The probability of its giving rise to expensive litigation and contention between equally innocent parties, in case the owner of the inheritance should create inconsistent charges.

This fourth reason induces us to say a few words respecting the protection to be derived from getting in an outstanding

term. Suppose A., the owner of a fee simple with an attendant term in a trustee, conceals the term and creates two separate and independent mortgages, professing to give to each mortgagee the first charge, and neither mortgagee having notice, when he lends his money, of any prior charge whatever.1 If the estate proves deficient and a scramble ensues, whichever mortgagee can first get an assignment of the term may protect his mortgage thereby but if a puisne mortgagee thus endeavours to oust a prior charge, litigation probably follows; and it is still vexata quæstio whether a trustee of a term who has notice indirectly of both charges, can lawfully assign to the mortgagee who makes the first demand. Sir E. Sugden says, "these are not cases in which, in practice, a trustee would be advised to run the risk of making such an assignment."

W. C. W.

ART. VI.-PRACTICAL POINTS IN WILLS.

1.-Limitation to Grandchildren.

Ir is a well known rule that if a bequest be made to grandchildren, or any other class not the children of the testator, on their respectively attaining twenty-one years, as soon as any one of the class attains that age, no member of the class afterwards born can participate, although the bequest be expressly to all now born and hereafter to be born. This is on the ground of convenience, and in order to let every member of the class have his share immediately it is payable under the will. But it is obvious that this rule may, in many cases, operate harshly, and we think it would be wise to prevent its operation under certain restrictions. For instance, a period may be fixed, computed from the death of the testator, or, if there be a tenant for life, from his death, sufficiently extensive to comprise all the probable members of the class, but so as to exclude merely possible cases, and so as not unreasonably to postpone the time of enjoyment. The bequest might be to the following effect. "I direct that from and after the decease of my said wife, the said trust monies shall be held in trust for my grandchild, if only one, or all

1 See Willoughby v. Willoughby, 1 T. R. 771. 23 Sug. V. & P. 86.

my grandchildren equally, if more than one, who shall be living at my decease, or born afterwards, and who being a son or sons shall live to attain the age of twenty-one years, or being a daughter or daughters shall live to attain that age, or be previously married. Provided always and I hereby declare, that no grandchild who shall be born beyond the term or period of ten years, computed from the decease of the survivor of me and my wife, shall be capable of acquiring any estate or interest under the trust last aforesaid, but that all born before the expiration of that period shall, on their respective births, be presumptively entitled under the said trust."

2.- Bequest of Share in a Partnership.

If a testator have a share in a brewery concern, or other such partnership, and no express power is given in the will to sell the same, it is apprehended that, in the absence of any agreement to the contrary in articles of co-partnership, the executors must require the whole partnership business and stock to be disposed of, and that they cannot merely sell the share; for by a sale of the share only, they could not be completely exonerated from all the outstanding debts of the concern; they could only have an indemnity against them. But such a course would not only be very inconvenient, and in some cases ruinous to the other partners, but would in general be disadvantageous to the testator's estate, for the amount of a share of the clear surplus, after payment of all debts, would probably be less than the value of a share of a current going business. The practitioner, therefore, should bear this in mind, and should give a sufficient power to sell the share, authorising the trustees to accept an indemnity against the outstanding debts of the business.

3.—Interest on Legacies.

The rule that executors may defer the payment of legacies for one year in many cases operates unjustly. Even if the executors are desirous of paying the legacies as soon as may be, a great portion of the allotted period is often required, in order to realise the assets, and thus, if the funds are all producing interest, a large addition is made to the residuary

bequest. A testator lately died leaving about £60,000, all invested in parliamentary or real securities, and producing an income of about £2,400 a year. After some small legacies of kindness and remembrance, he bequeathed £4,000 to each of certain nephews and other persons, twelve in number, for whom he wished to make some provision, all to be paid “as soon as conveniently may be," and the residue to three of his nephews. Above eight months were required before the legacies could be paid, and thus about £1200 were added to the residue. The advice that we would give is, that in such a case small legacies merely of favour may be left to the general rule of law, but that all legacies which are in-. tended to be a provision, or a substantial benefit, should bear interest from the testator's death.

W. C. W.

ART. VII. THE LAW OF SEPARATE ESTATE-RESTRAINT UPON

ANTICIPATION.

Not

We had occasion, in a former Article, to remark, that, as soon as property has been settled, in trustees, for the separate use of a married woman, and free from all marital interference, she is thenceforth regarded, in Courts of Equity, as unmarried, and consequently clothed with a right of alienation. even a life interest could upon ordinary legal principles be the subject of inalienable enjoyment. If real or personal estate happened to be vested in trustees, upon trust, to pay the income to one for life, for his personal maintenance, accompanied with the strongest possible prohibition against alienation, such prohibition was nugatory. The rule, that a mar

18 Ves. jun. p. 429, Brandon v. Robinson. This case is frequently quoted. There was a trust to pay dividends, from time to time, into the proper hands of a man, or, on his proper order or receipt subscribed with his own hand; and that they should not be grantable, transferable, or otherwise assignable, by way of anticipation of any unreceived payment, or any part thereof. The words of the testator, Stephen Goom, were partly these:-" that the dividends, interest, and produce" of certain estate which was directed to be laid out, by trustees, in the public funds or in government securities," should, as the same became due, be paid by them, from time to time, into his own proper hands, or on his own proper order and receipt, subscribed with his own proper hand, to the intent that the same should not be grantable, transferable, or otherwise assignable, by way of anticipation of any unreceived payments or payment thereof, or of any part thereof." Robinson was one of the trustees. The testator died; and subsequently VOL. XXX. NO. LXI.

K