merger by the operation and conſtruction, though not by the expreſs words, of the ſtatute de donis: which operation and conſtruction have probably ariſen upon this conſideration; that, in the common caſes of merger of eſtates for life or years by uniting with the inheritance, the particular tenant hath the ſole intereſt in them, and hath full power at any time to defeat, deſtroy, or ſurrender them to him that hath the reverſion; therefore, when ſuch an eſtate unites with the reverſion in fee, the law conſiders it in the light of a virtual ſurrender of the inferior eſtate[1]. But, in an eſtate-tail, the caſe is otherwiſe: the tenant for a long time had no power at all over it, ſo as to bar or to deſtroy it; and now can only do it by certain ſpecial modes, by a fine, a recovery, and the like[2]: it would therefore have been ſtrangely improvident, to have permitted the tenant in tail, by purchaſing the reverſion in fee, to merge his particular eſtate, and defeat the inheritance of his iſſue: and hence it has become a maxim, that a tenancy in tail, which cannot be ſurrendered, cannot alſo be merged in the fee.
