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37. It has been stated in a former title, that where A Right of Entry is not there is a tenant for life, with a vested remainder, or a devisable. reversion immediately expectant thereon, in another person, and such tenant for life levies a fine, it divests the remainder or reversion, and turns it to a right, leaving only in the remainder-man or reversioner a mere right of entry, which is not devisable.

38. Thus in the case of Goodright v. Forrester, Lord Tit.35. Ellenborough said, the second question was, whether a right of entry was devisable, and the Court was of opinion that it was not devisable, for such right was certainly not assignable by the common law, nor did it fall within the words of the statute 32 Hen. VIII. c. 1., which were, "having manors, lands, tenements, or hereditaments;" nor of the statute 34 & 35 Hen. VIII. c. 5. § 4. which were, "having a sole estate or interest in fee simple of and in any manors, &c. in possession, reversion, or remainder." In Corbet's case, 1 Rep. 85 b. "For the construction of wills, this rule was taken by the justices in their arguments, that such an estate, which cannot by the rules of the common law be conveyed, by act executed in his life, by advice of counsel learned in the law, such estate cannot be devised by the will of a man who is intend ed by law to be inops consilii." From whence it might be inferred, that out of that interest, in which, by act executed in a man's life, it was not possible to create any estate, no estate could be created by his will. And in Butler and Baker's case, 3 Rep.32 a. it is said, "Without question, that which a man cannot dispose of by any act in his life, shall not be taken for any of his manors, &c. whereof he may devise two parts, by authority given him by the statute." And in Lord Mountjoy's case, Godb. 17. it was laid down, “that the statute of wills, 32 Hen. VIII. that it shall be

Nor a Joint
Tenancy.
Lit. § 287.
1 Inst. 185 a.

Tit. 18. c. 2.

3 Rep. 25. Poph. 87.

lawful, &c. to devise two parts, &c., respects only such things as are devisable; but a right of entry was not devisable, and therefore, according to the terms of the statute, and the authority of that case, was not devisable. For these reasons the Court was of opinion that there must be judgement for the defendant. And whatever mischief or hardship might attend the decision of this case, or might be expected to arise from the application of the same rule to other cases, it was an inconvenience which could only be remedied by positive law; and the propriety of applying such a remedy, whereby the same rights of entry and action which belong to the heir, might be extended to the devisee, was a question particularly fit for the consideration of the legislature *.

39. Littleton says, if there be two joint tenants in fee of lands devisable by custom, and one of them devises his share, it is void; because no devise can take effect till after the death of the devisor; and by that event the lands become immediately vested in the other joint tenant, by survivorship.

40. In conformity to this principle, the statute 34 & 35 Hen. VIII. only enables persons having a sole estate in fee simple, or seised in fee simple in coparcenary or in common, to devise, which excludes estates held in joint tenancy. And in Butler and Baker's case, in 35 Eliz. it was laid down, that the law only considers what estate the devisor had at the time of making his will, without regard to any subsequent event; from which it follows, and has been settled, that a devise by a joint tenant, who afterwards

* A writ of error was brought in the Exchequer Chamber, but judgement was given on another point, 1 Taunton's Rep. 578.

severs the joint tenancy is void; because the devisor was joint tenant when he made his will.

Roberts,

476.

41. Richard Gilbert and Frances Sophia Gilbert Swift v. were seised of the premises in question, as joint 3 Burr. 1488. tenants in fee. Richard Gilbert, on the 20th January 1 Black. R. 1754, made his will, and thereby devised in these words: "Imprimis, I give and bequeath all my part, right, title, and interest, which I have in an estate jointly with my sister Frances Sophia Gilbert, to my wife Jane." Afterwards, by indentures of lease and release, Richard Gilbert and his sister made a partition, and severed the joint tenancy; and the estate in question was conveyed to Richard in fee. The question was, whether the will was good as to this

estate.

The Court was clearly and unanimously of opinion, that a will made by a joint tenant, during the continuance of the jointure, was not a good will, even as to a share of his estate, under the statute of wills, notwithstanding a subsequent severance of the joint tenancy, by a partition, unless there was a republication of it after the partition.

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19. What may be devised.

31. Where a Surrender will be supplied.

32. For Creditors.

35. For a Wife.

36. For younger Children.

20. A Surrender of this kind bars 38. A Surrender not supplied

an Entail.

22. An equitable Interest is devis

able without a Surrender. 27. But an equitable Entail is not

barred by a Devise.

unless the Intent is apparent.

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SECTION 1.

Copyholds AS the statutes of wills only mention lands held by

by Surrender to Uses.

1 Inst. 111 b. n. 1.

knight-service, and in socage, they do not extend

to copyhold estates; but a power of devising this kind of property has long been indirectly exercised, Gilb.Ten.322, by an application of the doctrine of uses, similar to that which was anciently resorted to, in respect to freehold lands. For this purpose the copyholder surrenders his estate to the use of his last will, and then infra, c. 16. disposes of it by his will, which operates as a declaration of the uses of the surrender, and not as a devise under the statutes of wills.

Holder v.
Preston,

2. By the general custom of all manors, every copyholder has a right to surrender his estate to the use of

3 Bro.

his will; and in a modern case it was held, that if Pikev.White. there was a custom in a manor, that copyholds should Rep. 286. not be surrendered to the use of a will, such a custom would be deemed void.

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15 Ves. 403.

Cop. F. 10.

3. A surrender to the use of a will must be pre- Com. Dig. sented: but by special custom such presentment may be made at the next court, after the death of the surrenderor, though it be not the next after the surrender made; and it is said that it would be good without any special custom.

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11 East, 246.

4. A surrender to the use of a will, cannot be made Doe v.Tofield before the admittance of the devisor, for till then he has no estate or interest in the copyhold.

of such

4 Rep. 23 a.

Gilb. Ten.

5. Where a copyholder surrenders to the use of his Nature will, the estate remains in the copyholder, and does Surrenders: not vest in the lord; for all the design of the surrender is, that the surrenderor may dispose of it by his will; not to vest an interest in any one, or to give away the power of disposing of it.

195.

6. Thus where a copyholder surrendered to the use Fitch v. of himself for life, then to his son for life, then to the Cro. Eliz.

Hockley,

use of his will; the son died, and the father surrend- 442. ered to the use of another in fee. It was held by Anderson and Walmsley, that the copyholder might dispose of it in his lifetime, notwithstanding the surrender to the use of his will.

3

7. A copyholder having surrendered to the use of. Thrustout v. Cunningham. his will, and afterwards surrendering to new particular 2 Black. uses, with reversion to himself in fee; it was held that R. 1046. he was in of the old use, and might devise the reversion, without any admittance or fresh surrender to the use of his will.

of

8. Where a copyholder makes a surrender by way mortgage, he continues in possession of the legal estate till the mortgagee is admitted, and cannot

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