The elder term merges in the term in reversion or remainder. A merger also takes place where there is a union of the freehold or fee and the term in one person, in the same right, and at the same time.-2 Black. Comm., 177. 3 Prest. on Conveyances, 18. 4 Kent's Commentaries, 99. An estate for years may merge in an estate feeing or for life.-4 Kent's Comm., 100.

14. What will be considered to amount to a surrender?

To surrender, it is necessary that the tenant of the particular estate should relinquish his estate in favor of the tenant of the next vested estate, in remainder or reversion.-4 Kent's Comm. 100. 3 Prest. on Convey., 88. Co. Lit., 337.

If the lessee accepts a new lease of the same premises during the first lease, the first is deemed to be virtually surrendered: therefore it is held, that if a lessee for 20 years, or any greater number, takes a lease for ten or a less number of years, to take place during the period of the first, the term of twenty years is thereby determined.-Colman v. Marberly, 3 Monroe Rep., 220. Van Rensselaer v. Penniman, 6 Wendell Reports, 569. 12 Johns. Rep., 357.

A lease for years cannot be surrendered by merely cancelling the indentures, without writing.-Myginis v. Macculloch, Gilb. Cas. in Eq., 336. Doe v. Sayburn, 7 Term Rep., 2 Ib., 47. Doe v. Hilder, 2 Barn. & Ald., 782. 4 Kent's Comm., 104.

15. What will amount to a forfeiture ?

Any act which disaffirms the title, and determines the relation of landlord and tenant.-Co. Litt., 251. Bac. Abr. tit. Lease. 4 Kent's Comm., 106. Walden et al. v. Bodley et al., 14 Peters' S. C. Rep., 156.

A lease for years may be determined by the determination of the estate of the lessor, as if a tenant for life should lease for twenty years and die during the term; or, if a man have a power to lease for ten years, and he lease for twenty; here the lease is bad at law, but good in equity for the ten years.-Ram. on Tenure and Tenantry, 14. Taylor & Atkyns v. Horde, 1 Burr, 60. Campbell v. Leach, Amb., 740. 4 Kent's Comm. 106.

LEGACIES.

[As to who may bequeath, see Wills, Post.]

1. What is a legacy?

A legacy is a gift directed by the deceased, and to be fulfilled by the heir. Inst. Jus., lib. 2, tit. 20, sec. 1.

2. What may be bequeathed?

A testator may not only bequeath his own property, or that of his heir, but also the property of others; and, if the things bequeathed belong

to another, the heir can be obliged either to purchase and deliver it, or to render the value of it, if it cannot be purchased.

But if the thing bequeathed be not in commerce or cannot be purchased, the heir is not bound to pay the value to the legatee. But in saying that a testator might bequeath the goods of another, we would be understood to mean, that this can be done only if the deceased knew that what he bequeathed belonged to another, and not if he were ignorant of it. Inst. Just., lib. 2, tit. 20, sec. 4. Dig. 30, 14, 1. Dig. 30, 67, 1. Dig. 30, 71, 3.

If a specific legacy can be reasonably obtained, it is of no consequence whether the testator knew it to be the property of another or not. Dig. 22, 3, 21. Dig. 30, 49, 3. Code, 1, 23.

It is a settled rule of the English law, that the testator must be seised of the lands devised at the time of making the will.-Bro. Abr., Devise, 15. Butler v. Baker, 3 Co. 25. Bunker v. Coke, Salk. Rep., 237. 1 Bro. Parl. Cas. 199. 4 Kent's Com., 510.

It is now well established as a general rule, that possibilities (not meaning thereby mere hopes of succession,) are devisable.-3 Meriv., 671. Jones v. Roe, 3 Term Rep., 93. Perry v. Philips, 1 Ves. Jun., 254. Sewan v. Blunt, 7 Ves. Jun., 300. Moore v. Hawkins, 2 Eden, 343. Wainwright v. Ellwell, 1 Mad., 627. Doe v. Thompkinson, 2 Maule & Selw., 170. 2 Preston on Abstracts, 204. Avely v. Ward, 1 Ves. 423. 4 Kent's Comm., 510. Jackson v. Varick, 7 Cowen's Rep., 283. S. C., 2 Wendell's Rep., 166. Minuse v. Coxe, 5 Johns. Ch. Reports, 441. Turpin v. Turpin, 1 Wash. Rep., 75. Hyer v. Shobe, 2 Munf. Rep., 200. 4 Serg. & Rawle's Rep., 433. 2 Leigh's Rep., 664. Lessee of Smith v. Jones, 4 Ohio Rep., 115. Vance v. Huling, 2 Yerger's Rep., 135. 1 Story's Equity Jurisprudence, chap. 10, pp. 553, et seq. 2 Ibid., chap. 29, p. 319 et seq., post-Wills & Testaments.

3. Who may be a legatee?

A legacy can be left to those only who have a capacity to take by testament. Inst. Just., lib. 2, tit. 20, sec. 24.

A posthumous stranger may be appointed heir, unless it appear that he was born of a woman who could not have been legally married to his father. Inst. Just., lib. 2, tit. 20, sec. 28.

An alien is capable of taking and holding the legacy of personal estate for his own benefit.-Craig v. Leslie, 3 Wheaton, 563. Commonwealth v. Martin, 5 Munf., 117.

If a man bequeath that which he hath pledged to another, the heir is under the necessity of redeeming it. Inst. Jus., lib. 2, tit. 20, sec. 5.

A. having pawned a jewel for a sum of money, devised the jewel to B., and made C. his executor, and gave him all his goods, chattels, and personal estate. Decreed, that the debt should be paid out of the personal estate, and that the legatee should have the jewel discharged of it. -2 Freeman's Rep., 272.

4. What will pass by the words "household furniture, and other household effects," in a dwelling-house?

All property placed there, either for ornament or for use, or consumption in it.-Cole v. Fitzgerald, 3 Russ., 301. 1 Sim. & Stu., 189.

Under the word "furniture," pictures placed in the house as ornamental furniture, and plate and linen, will pass; but otherwise as to books, gold and silver coins, trinkets and things of that nature.-Cremoine v Antrobus, 5 Russ. Rep., 312. Fleming v. Burrows, 1 Russ., 276. Car nagy v. Martin, 2 Munf. Rep., 234. Stuckey v. Stuckey, 1 Hill's Ch. Reports, 309.

5. How will the term "lend," in a bequest, be considered?

As synonymous with "give," unless it is manifest that the testator did not intend the legal estate should pass. Thus, a bequest of personal chattels in these words "I lend to my daughter P. S. four negroes, during her natural life, and then to the heirs of her body," vested the ab solute estate in the first taker.-Hinson v. Pickett, 1 Hill's Ch. Rep., 37 A bequest to "D. and his family, viz. his wife and children," includes only the wife then living, and the issue of their cohabitation.-Drayon v Grimke, 1 Hill's Ch. Rep., 227.

6. What will pass by these words, " my wines, and all my property in England?”

All the testator's property in England of every description, including money in the funds and at his banker's, and arrears of a pension due him. -Arnold v. Arnold, 5 Mylne & Keen, 365.

A testatrix bequeathed a moiety of the residue of her personal estate to her daughter H., for her separate use during the joint lives of her and her husband; and if she survived, to her absolutely; if not, to her children who attained twenty-one: and she bequeathed the other moiety for the benefit of her daughter M. and her children; with a bequest over, if she died without children, in like manner as the first moiety. By codicil, she bequeathed the whole residue, if both her daughters died without leaving a child who should attain the age of twenty-one, to A. Both the daughters died without issue, but H. survived her husband: Held that A. was entitled to the residue.-Hopkins v. Fowle, 2 Sim. & Stu., 337. 3 Russ., 301.

Where a testator gives to one person "all his monies in hand," and to another "all his monies out on securities," the balance at his banker's will pass as money in hand.-Vaisey v. Reynolds, 5 Russ., 12.

A testator bequeathed to his sister a legacy of £100, and a legacy of £20 to his nephew, and the rest of his money to be equally divided between his brother and his niece. At his decease his property consisted of £600 3 pr. ct. consols, and £119 in sovereigns: Held, that the stocks did not pass under the word "money."-Gadsden v. Dotterell, 1 Mylne & Keen, 56. Bescoby v. Pock, 1 Sim. & Stu. 487. Kendall v. Kendall, 4 Russ., 360.

A bequest of a cabinet, with whatever it contains, "except money,' will not pass a promissory note payable to the testatrix, of a date anterior to the will, and which, after her death, was found in the cabinet.-Read T. Stewart, 4 Russ., 69.

7. What will pass by a bequest of stock to trustees upon trust to pay the dividends to a married woman, for her separate use?

It is an unlimited gift of the dividends, and consequently passes the capital. Haig v. Swiney, 1 Sim. & Stu., 487.

8. In a devise of personalty to be equally divided between my son P. and my daughters D., C. and E., and the heirs of my daughter P., how do the heirs of P. take?

They take one fifth between them.-Rix v. Williams, Dev. Eq. Reports, 3.

A testator bequeathed a large estate in lands and slaves to his son, and in a subsequent clause of the same will gave one of the same slaves to his daughter. Held, that the legatees took the slaves by moieties.Field v. Eaton, Dev. Eq. Rep., 283.

9. What will pass by a devise of a slave and her increase?

The slave and her future offspring only.—Puller v. Puller, 3 Randolph, 83.

A bequest of certain slaves by name, and their families, restricted to their wives and children, residing in the same house with them, and_not to their grandchildren.-Pringle v. McPherson, 2 Desseau. S. C. Rep.,

The bequest of a slave and her three children named, will pass children born after the making of the will.-Gayle v. Cunningham, Harp. Eq. Rep., 124. Witherspoon v. McKee, 4 Desseau. S. C., 14.

A widow bequeathed, by general words, the distributive share she was entitled to in her deceased husband's estate, then undivided. Her husband was entitled, besides his estate in possession, to certain negroes, bequeathed to him by a relation, after a life estate given to another person. This life estate did not fall in till after the husband's death, nor indeed until after the death of the widow. Nevertheless, her general bequest passes her interest in those negroes.-Peyre v. Harwon, 2 Desseau. Š. C. Rep., 419.

Slaves purchased after a will is made, do not pass by it, unless it appears that the testator intended to dispose of all the slaves of which he might be possessed at his death.-Mason v. Mason's Ex. 3 Bibb., 448.

The words "all the furniture and utensils about my mansion-house at H.," do not pass farming utensils on lands at H. occupied by the testator, along with the mansion-house.-Fitzgerald v. Field, 1 Russ., 427. Henderson v. Farbridge, Ibid, 479.

10. What is the rule where a sum of money is given twice in the same instrument to the same legatee?

The general rule is, that where the sum is repeated in the same writing, the legatee can only take one of the sums bequeathed.-Dewitt et ur. v. Yates, 10 Johns. Rep., 156. Godolphin's Orphan's Legacy, part 3, c. 26, s. 46. Swinb. part 7, c. 21, s. 13. Duke of St. Albans v. Beauclerk, 2 Alk., 236. Garth v. Meyrick, 1 Bro. C. C. 389. Hoveley v. Hatton,

Ibid., 390. Wallop v. Hewett, 2 Chan. Rep., 37. Newport v. Kiniston, Ibid., 58. James v. Simmons, 2 H. Bl., 214. Allen v. Allen, 3 Ves. Jun., 289. Barclay v. Wainwright, Ibid., 462. Osborne v. The Duke of Leeds, 5 Ves. Sen., 369.

The word "legacy" may be applied to real estate, if the context of the will show that such was the devisor's intention.-Hardacre v. Nash, 5 Durn. & East, 716. Brown v. Taylor, Burr, 286.

The word "hereditaments" in a will, will not carry a fee.-Moore v. Mellon, 5 Durn. & East, 558.

11. What effect have these general introductory words, "touching all my temporal estate ?"

They have some effect in the construction of the will, but are not of themselves sufficient to extend a devise for life to a fee.-Baker v. Stoker, 5 Durn. & East, 13. Baddeley v. Leppingwell, 3 Burr, 1533. Frogmorton v. Holiday, 3 Burr, 1618. Ibertson v. Beckwith, Cas. Temp. Talb., 160. Mondy v. Mondy, Cas. Temp. Hardw., 143. 2 Str. 1021. Den v. Gaskins, Cowp., 660. Right v. Sidebotham, Dough., 759. Palmer v. Richards, 3 Durn. & East, 356.

A testator, after giving several annuities for lives, each gift commencing with the word "Item," proceeds thus, I give to my wife £1200 a year during her life, and also my furniture and house, and after her decease to S. S. and his heirs. Held that S. S. was entitled to the fund for the payment of the annuity, as well as to the house and furniture.-Oldham v. Slater, 3 Sim., 84.

12. What is the rule of construction where there is a devise to "children," and no definite period for distribution?

The legacy vests at the death of the testator, and none can take but those in esse at that time. But where there is a fixed period, all the children born before that time are let in, and none others.-Myers v. Myers, M'Cord's Ch. Rep., 256. Swinton v. Legare, 2 M'Cord's Ibid, 440.

Where a legacy is given to a class of individuals, in general terms, as to the children of A., and no period is fixed for the payment of the legacy, it will be considered as due at the death of the testator; and only the children of A. who were born or begotten previous to that time, are entitled to a share in the legacy.

But a child in ventre sa mère is considered as in esse.-Jenkins v Frazer, 4 Paige's Ch. Rep., 47.

A testator, by his will, makes provision for a child of which his wife should be pregnant at the time of his death. Held, that a child born after the will, but before his death, was entitled to the provision.-M'Lemore v. Blocke, Harp. Eq. Rep., 272.

A provision made for a child in ventre sa mère which is afterward born before the death of the testator, was held not to extend to an after born posthumous child, although the division of the property was suspended till the eldest son became twenty-one, and the division to be made