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the interest under this executory devise, descends to him, and afterwards he dies intestate, leaving two classes of heirs : one to the seisin which he had; the other to the interest which he derived under the possibility; the heir to the possibility, and not the heir to the seisin, shall be preferred. These decisions of course deny that the possibility was extinguished in the estate; for if the possibility had been extinguished, it could not have governed the descent. With every respect the author feels for the decisions of the courts, he considered these cases as anomalous.

With this impression, and the opinion of those most conversant with the subject, including Mr. Watkins, who in his Treatise on Descents (r) had adopted the proposition from Goodright v. Searle, and whose name can never be mentioned with too much respect, either for talent, learning, industry, or liberality; this point was again brought under discussion in the case of Goodtitle, lessee of Elizabeth Vincent v. White (s), and the decision of the Court of King's Bench was founded on the former determinations in Goodright and Searle, and Goodtitle dem. Vincent v. White (t). Still,

(r) Watkins on Descents, c. 3. s. 2. 155.

(s) 15 East. 174.

(t) 2 New Rep. 383.

however, it was determined to appeal from the judgment of the Court of King's Bench to the Court of Exchequer Chamber. The decision in the latter court will be considered conclusive between these parties, since the property will not bear the expence of further litigation. For the sake of principle rather than of the precedent afforded by Goodright and Searle ; a precedent which if an opinion may be formed from the report, arose from a confusion of the doctrine of extinguishment with the doctrine of Merger; it is to be hoped that the Court of Exchequer Chamber, guarding against the mischief of anomalies, on a subject of so much importance, and of such frequent occurrence as the law of descents, will bring back the law to the point on which all the former cases seem to have received their decision; namely, that the same person cannot have the estate and the condition, the estate and the title, the land and the rent, the land and the common; nor, consequently, the estate, and the possibility by which the estate is to be defeated: and it is material that the Chief Justice of the King's Bench admitted that it was a matter of indifference in what way the law had been originally decided, in Goodright v. Searle, which he considered as having settled this point.

It is to be lamented that the point of title had not arisen on the effect of a will

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by a person, who had at one and the same time, the estate and the possibility, under a gift to him as the survivor of several persons, and who made his will before he became the survivor. It may reasonably be expected that the judges would support the will against each class of heirs; and it would be difficult to understand on what ground, if the late decision be right, they could support the will against the heirs claiming under the possibility, as distinct from the estate (u); since a fee to vest in the survivor of several persons is not, while in contingency, considered to be, indeed is now decided not to be, a devisable interest. The law has in no case ever treated an estate, and the right to an estate, as two distinct interests in one and the same person, at one and the same time, except for an instant, when the law, by its own operation, does, under the learning of remitter, substitute the right in the place of the estate; and treat the party as seised by force of his rightful interest, and not by force of the estate acquired by wrong.

If it should be alledged that these limitations in Goodright v. Searle, and in the cases of Doe v. White, were by executory devise, and that executory devises have introduced a new species of interest, by

(u) Doe v. Tomkinson, 2 Maule and Selwyn, 165.

way of remainder, though these interests are not remainders in the strict sense of the term; the answer seems to be, that the different interests have qualities well known to the rules of the common law; and that the rules of the common law are equally applicable to interests created by executory devise, as if they had been created by any other mode, or had resulted from any other rule or consequence of law. It was the wisdom and part of the plan, of those who introduced and encouraged the law of executory devises, to assimilate the interest by executory devise, to corresponding interests arising by any other means. Thus possibilities under executory devises were releasable in the same manner as all other possibilities were releasable: and as they were releaseable by the act of the parties (a), it is difficult to comprehend for what reason they should not, like all other possibilities, be releasable by act of law; by union, and consolidation with the estate to which they formed a collateral interest, and to which they gave a collateral or determinable quality. In short, it is impossible to pursue the learning and the principles on which the law of merger, the law of extinguishment, and the law of remitter are seve

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(a) Lampell's Case, 10 Rep. 46.

Matthew Manning's Case, 8 Rep. 94.

rally grounded; and not to feel that the case of Goodright and Searle is one of those unfortunate decisions which trench on first principles, and break down one of those barriers by which consistency of principle, decision, and opinion are secured; and that it leads to doubts on many points, which without such a decision could never have been questioned with any semblance of reason.

While on this subject, it may be worth attention to notice the case of a gift, attended with these circumstances:

A person being seised in fee by descent under an estate-tail, to his father and mother, suffered a common recovery, and acquired the fee: he was therefore seised of the fee in the course of descent from his father and mother. It is not, as far as the fact can be traced, decided by any book, whether the course of descent was to be from the mother, who was the surviving parent, or first from the father, and secondly from the mother. On the principles of equity from which we derive the descendible qualities of the use or estate, it should seem, that the heir of the father in the first place, and afterwards the heir of the mother, would be admitted into the succession; but a title attended with these circumstances cannot be safely accepted until it shall have undergone the ordeal of judicial decision.

To resume the subject from which there has been a digression.

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