Floyd v. Aldridge, cited 5 East, 137: Kenebell v. Scrafton, 8. Doe v. Wroot, -5-East, 132. Semaine therefore devise, without a surrender to the use of his will. 9. A person mortgaged a copyhold in fee, and surrendered it to the mortgagee; but the latter was not admitted. The money was not paid at the time. The mortgagor afterwards made his will, and devised the estate, without a surrender to the use of his will, and died. The devisee brought his bill to redeem, making the heir a party. Sir T. Sewell, M. R. dismissed the bill, saying that the plaintiff had no interest in the copyhold; if the mortgagee had not the legal estate, there was no equity of redemption. The legal estate remained in the surrenderor, till admittance of the surrenderee. After the first surrender, before admittance, he is tenant to the lord, and may therefore surrender to the use of his will. A second cannot prejudice a first surrender; when the first surrenderee came in, he would be admitted. A mortgagee was seldom admitted ; the mortgage was discharged by an entry on the court rolls; all remained in the mortgagor; no fine, no change of tenant, &c. As he might have made a surrender to the use of his will, without prejudice to the mortgagee, he ought to have done it: the estate could not pass at law, and equity would not assist a volunteer against the heir. The same point was determined by the Court of King's Bench in Easter term, 1804. 10. It was held in 10 Jac. that where a copyholder 1 Bulst. 200. surrenders his estate to the use of his will, and afterwards makes a will; the lands do not pass by the will, but by the surrender; for the will is only declaratory of the uses of the surrender. Tit. 10. c. 5. § 4. Roe v. Hicks. 11. In the case of a surrender by a copyholder to the use of his will, and a devise thereof, the devisee has no title till he is admitted; but if a devise is to Co.Cop. § 35. two persons, and one of them is admitted according to the purport of the will, this shall enure to both. 12. The devisor must have the copyhold at the time of making his will; otherwise it will not pass by it. Warde, Amb. 299. 13. Thomas Warde made his will, and reciting Warde v. that he was seised of a copyhold estate (whereas in fact he was not), devised all his real estate, &c. He afterwards purchased a copyhold estate, and surrendered it to such uses as he by his last will and testament should appoint; and afterwards died without making any other will. Lord Hardwicke held that the copyhold did not pass by the will. Ist. Because the surrender was to a future appointment. 2d. Because the words of the will did not extend to an after-purchased copyhold; but only to such of which he was seised at the time of making the will. 438. note. 14. It is said by Lord Mansfield to have been 1 Term Rep. determined in the case of Harris v. Cutler, B. R. Vide Heylin. Trin. 10 Geo. III. that copyhold lands, purchased v. Heylin, after a will, do not pass by it. infra, c. 7. 15. It was resolved in a modern case, that where a Doe v. Cowling. copyholder, having an estate pur auter vie, surrender- 6 Term ed all his estates in possession, remainder, or reversion, Rep. 63. to the use of his will, and afterwards acquired the fee by descent, such fee did not pass by the will. 16. By the statute 55 Geo. III. c. 192. it is enacted, that in all cases where, by the custom of any manor in England or Ireland, any copyhold tenant of such manor may, by his or her will, dispose of or appoint his or her copyhold tenements, the same having been surrendered to such uses as should be declared by such will, every disposition or charge, made or to be made by any such will, by any person 12 July 1815. who shall die after the passing of this act, of any such Who may devise. George v. - copyhold tenements, or of any right, title, or interest in or to the same, shall be as valid and effectual to all intents and purposes, although no surrender shall have been made to the use of the will of such person, as the same would have been if a surrender had been made to the use of such will. 17. All those who are capable of devising freehold estates may also devise copyholds. But a married woman cannot devise a copyhold. And where a woman surrendered to the use of her will, and afterwards married; it was held that the surrender was suspended during the marriage, and that a devise by the wife of the copyhold so surrendered was void; notwithstanding that, by articles previous to the marriage, her husband agreed that she should have power to devise. 18. Ann Thornbury, widow, surrendered a copyhold to the use of her will; soon after she married; but previous thereto she entered into articles, reciting the surrender, and that the intended husband agreed that she should have power to settle her estate, or to devise the same, during coverture, without his contradiction. The wife made her will, reciting her power under the articles; and the question was, whether it was good. 2d, Lord Ch. J. Willes delivered the opinion of the Court, and laid down these two propositions: 1st, That a feme covert could not make a will of lands. That the surrender by her when sole, became void; or at least was suspended by the marriage. As to the first, it was contrary to the 34 & 35 Hen. VIII. that a feme covert should make a will; for by that statute, wills made by feme coverts were void in and law. But it was argued that the consent of the 19. An estate in remainder or reversion in a copy- What may be hold may be devised, as well as an estate in possession; devised. but such estate must be duly surrendered to the use of the will. Lord Coke says, if two joint tenants be of copyhold 1 Inst. 59 b. lands in fee, and the one out of court, according to the custom, surrender his part to the use of his will, and devises it to a stranger in fee, and dies, and at the next court the surrender is presented; by the surrender and presentment the jointure was severed, and the devisee ought to be admitted to the moiety of Porter v. the land; for now by relation the estate of the land Ja. 100. S. P. was bound by the surrender. Porter, Cro. of this kind bars an Entail. Tit. 37. c. 2. 20. It has been stated in the preceding title, that A Surrender in many manors, a surrender to a stranger and his heirs was sufficient to bar an entail. This doctrine has been extended to surrenders made to the use of the surrenderor's will. And Lord Hardwicke has Moore v. said, where a copyholder seised of an estate tail Moore, surrenders to the use of his will, if entails by the custom of the manor are not barrable by recovery or fine, but by surrender, in such case the surrender to VOL. VI. E 2 Ves. 601 Amb. 279. Carr v.Singer, 2 Ves. 604. G. B. 1750. the use of his will, not only effectuates the will, but operates as a bar to the entail. 21. A person being tenant in tail of a copyhold estate, there being a custom for entailing copyholds, surrendered into the hands of the lord, to such uses as he should by any deed or will limit or appoint. He made his will, devising the customary premises in question to one of the defendants. Upon the rolls of the manor there was found one single instance of a surrender to bar an estate tail; but it did not appear what enjoyment was under the surrender: and no instance was found on the rolls of a recovery suffered to bar estates tail. Birch, J. said, the question was, whether the estate tail was barred by the surrender, and the devise in pursuance thereof; as it was admitted there was a custom in the manor for entailing copyholds, it must be admitted there was some method to bar such entails, or else there would be a perpetuity, which the law abhorred; and he thought the surrender was a good bar to the entail. Burnet, J. said, he concurred in that opinion. The whole of the case came to this:-Here was a manor in which custom had established the entailing of copyhold, and no method of barring; for one instance so modern would not weigh with him. The opinion that where there is no recovery by custom, a common surrender will do, was mentioned by Lord Cowper in 2 Vern. 583. ; but though this was an opinion only, his next determination, 2 Vern. 702., was delivered as a judge, upon the very point in judgement; his opinion therefore was, that the same rule must hold, that a surrender of a copyhold would be a sufficient bar of the entail, where there was no recovery by custom to bar it. |