No. XXVII.

WILL, DEVISING FREEHOLD, COPYHOLD, AND LEASEHOLD ESTATES TO TRUSTEES, UNTIL THE YOUNGEST OF TESTATOR'S CHILDREN, BEING A SON, SHALL ATTAIN TWENTYONE YEARS, OR BEING A DAUGHTER, SHALL ATTAIN THAT AGE OR MARRY, WITH POWER TO GRANT LEASES, TO KEEP PREMISES IN REPAIR, AND TO INSURE AGAINST DAMAGE BY FIRE; ALSO, POWER TO DRAIN, INCLOSE, AND PLANT TIMBER. TRUSTEES TO PAY RENTS, RENDER SERVICES, AND PERFORM COVENANTS IN RESPECT OF COPYHOLD AND LEASEHOLD PREMISES, AND TO RENEW LEASES. TO PAY RENTS AND PROFITS TO TESTATOR'S WIFE, UNTIL HIS ELDEST SON ATTAINS TWENTY-ONE, IF SHE SO LONG CONTINUES HIS WIDOW, SHE THEREOUT MAINTAINING HIS FAMILY. ON ELDEST SON ATTAINING TWENTY-ONE, TRUSTEES TO ALLOW HIM 350l. PER ANNUM OUT OF THE RENTS AND PROFITS, AND THE SURPLUS TO BE PAID TO TESTATOR'S WIFE, UNTIL SOME OTHER OF HIS CHILDREN, BEING SONS, ATTAIN TWENTY-ONE, OR BEING DAUGHTERS, ATTAIN THAT AGE OR MARRY, EACH OF WHOM ARE THEN TO RECEIVE AN ANNUITY OF 1007., PAYABLE OUT OF THE RENTS AND PROFITS, AND THE SURPLUS TO BE PAID TO THE WIFE, PROVIDED SHE SO LONG CONTINUES A WIDOW. IN CASE OF DEATH OR FUTURE MARRIAGE OF THE WIFE, SURPLUS RENTS, &c., TO ACCUMULATE AT COMPOUND INTEREST. ON YOUNGEST CHILD, BEING A SON, ATTAINING TWENTY-ONE, OR, BEING A DAUGHTER, ATTAINING THAT AGE OR MARRIAGE, TRUSTEES BY SALE OR MORTGAGE TO RAISE 2,500l. FOR EACH OF THE YOUNGER CHILDREN, WITH INTEREST AT 41. PER CENT. IN THE MEANTIME. WIFE TO RECEIVE AN ANNUITY OF 2501. DURING HER WIDOWHOOD, PAYABLE QUARTERLY, AND CHARGEABLE AS AFORESAID, UPON TRUST FOR TESTATOR'S ELDEST SON ABSOLUTELY.

WILLS.

No. XXVII.

Will, devising
Freehold,
Copyhold, and

Leasehold
Estates to
Trustees, fc.

General devise of freehold,

leasehold

estates.

[COMMENCE will, ut ante, No. I., clause 1, p. 632.]

1. I give and DEVISE unto (trustees), their heirs, executors and copyhold, and administrators, all my freehold, copyhold or customary and leasehold estates, lands, tenements and hereditaments whatsoever and wheresoever, whether in possession, reversion, remainder or expectancy, which I, or any other person or persons trust for me, is or are scised or possessed of, including al all such estates as are vested in me in trust or by way mortgage, and as to my copyhold or customary estates, whether

the same shall or shall not have been surrendered to the use of my will. (a)

(a) By the general law of copyholds, a surrender to the uses of a will was essential to its testamentary operation (Murrell v. Smith, 4 Co. 24, note b; Co. Cop. s. 36, Tr. 83; Wat. Cop. 122.

WILLS.

No. XXVII.

Will, devising Freehold, Copyhold, and

Leasehold

Estates to

Trustees, fc.

But to remedy the inconveniences occasioned by the omission of surrenders of copyholds to the uses of a will, by which the intention of a testator was so Surrender to frequently thwarted, the statute 55 Geo. 3, c. 192, was passed, by which it is the use of enacted, that devises of copyholds shall be good without any surrender to the will of copy holds use of a will: (sect. 1.) The same enactment, however, provides, that the same formerly duties and fees shall continue payable as have been paid on surrenders: (sect. 2.) essential. The act is not to render invalid any devise or disposition that would have been Stat. 55 Geo. 3, valid, nor to render valid such as would have been invalid if a surrender had been made to the uses of the will.

c. 192.

Devise of

copy holds valid

The act therefore supplies a surrender only in point of form, and not in substance, and does not render copyholds devisable which were not so other- without a wise; neither does it supply an act necessary to give validity to the devise, surrender to the beyond the simple act of surrender. Hence, where by the particular custom use of the will. of a manor a married woman was incapable of devising her copyhold lands, Same duties and except through the medium of a surrender to a will under the sanction and pro- fees payable as tection of the private examination by the lord or his steward as to her uncon- on a surrender. trolled assent, the act was held, not to supply a surrender unaccompanied with Act not to the above-mentioned formalities-this being a surrender in substance intended render invalid, to protect the acts of a married woman, which protection the Legislature did not or to render intend to deprive her of: (Doe dem. Nethercote v. Bartle, 5 Barn. & Ald. 492; valid any S. C., Dowl. & Ry. 81.

disposition not

By the Wills Act, 1 Vict. c. 26, s. 26, it is enacted, "That a devise of the land of otherwise so. the testator, or of the land of the testator in any place, or in the occupation of any Act supplies person mentioned in his will, or otherwise described in a general manner, and any surrender only other general devise which would describe a customary, copyhold or leasehold in point of form. estate, if the testator had no freehold estate which could be described by it, shall A general be construed to include the customary, copyhold and leasehold estates of the devise of the testator, or his customary, copyhold, and leasehold estates, or any of them, to testator's lands which such description shall extend, as the case may be, as well as freehold shall include estates, unless contrary intention shall appear by the will."

copyhold and

before

also such of

Another doubt arising upon the construction of the statute 55 Geo. 3, was leasehold as whether it would have have embraced an unadmitted heir at law. But now the well as freehold Wills Act (1 Vict. c 26), after empowering copyholders to devise their copyholds lands. without surrender (sect. 83), proceeds to enact, that the power hereby given Customary shall extend to all real estate of the nature of customary freehold or tenant right, freeholds and or customary or copyhold, notwithstanding the testator may not have surrendered copyholds the same to the use of his will, or notwithstanding that being entitled as heir, without devisee, or otherwise, to be admitted thereto, he shall not have been admitted surrender, and thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law admittance, and have been disposed of by will if this act had not been made, or notwithstanding them as cannot that the same, in consequence of there being a custom that a will or a be now devised. surrender to the use of a will, should continue in force for a limited time only, As to fees and or any other special custom, could not have been disposed of by will according fines payable by to the power contained in this act, if this act had not been made: (sect. 3.) devisees of But with a proviso, "that where any real estate of the nature of customary customary and freehold or tenant right, or customary or copyhold, might, by the custom of copyhold a manor of which the same is holden, have been surrendered to the use of a estates. will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to the use of the will, or in respect of

WILLS.

2. TO HOLD the same, with the appurtenances, unto and to the No. XXVII. use of the said (trustees), their heirs, executors, administrators and Will, devising assigns, according to the respective natures and qualities of the Copyhold, and premises, upon the trusts, and for the ends, intents and purposes hereinafter expressed and declared (that is to say),

Freehold,

Leasehold

Estates to Trustees, &c.

Habendum.

Trustees to be possessed of premises until testator's

youngest child, being a son, shall attain twenty-one, or being a

daughter, shall attain that age or marry.

Power to grant

leases at rack-rent.

Wills or

extracts of wills of customary freeholds and copyholds to be entered on the court rolls.

Lord to be

entitled to the

3. UPON TRUST, that they the said (trustees), and the survivor of them, his heirs, executors or administrators, do and shall stand seised and be possessed of my said freehold, leasehold and copyhold estates, until the youngest of my children for the time being, who being a son, shall attain the age of twenty-one years, or who being a daughter, shall attain that age or marry.

4. AND I HEREBY AUTHORIZE AND DIRECT my said trustees or trustee during the period which my said youngest child, being a

the registering or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator." And with a further provisu, "that where the testator was entitled to have been admitted to such real estate, and might, if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled, or claiming to be entitled to such real estates in consequence of such will, shall be entitled to be admitted to the same real estate by virtue thereof, except upon payment of all such stamp duties, fees, fine and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money, as would have been lawfully due and payable in respect of surrendering such real estates to the use of the will, or of presenting, registering or enrolling such surrender had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will; all which stamp duties, fees, fine or sums of money due as aforesaid, shall be paid in addition to the stamp duties, fees, fine or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid :" (sect. 4.)

And by the section next immediately following (sect. 5), "it is further enacted, that when any real estate of the nature of customary, freehold or tenant right, or customary or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shal be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the same fine, &c. declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls, that such real estate is subject to the trusts declared by such will; and when any such real estate could not have been disposed of by will if this act had not been made, the same fine, heriot, dues, duties, and services shall be paid by the devisee, as would have been due from the customary heir in case of descent entitled to from of the same real estate, and the lord shall, as against the devisee of such estate, the heir in case have the same remedy for recovering and enforcing such fine, heriot, dues, duties, suits and services, as he is now entitled to for recovering and enforcing the same from and against the customary heir in case of a descent.

when such

estates are not now devisable, as he would have been

of descent.

to

WILLS.

No. XXVII. will, devising

Freehold, Copyhold, and Leasehold Estates to

son, shall be under the age of twenty-one years, or, being a daughter, shall be under that age and unmarried, to demise, at rack-rent, all or any part of my said freehold, copyhold or customary and leasehold estate and premises, either from year year, or for any term or terms of years not exceeding fourteen years, in possession, from the time of such letting; but subject Trustees, &c. always to a proviso for re-entry, for nonpayment of the rent thereby to be reserved for the space of twenty-one days next after the same shall become due, and so that the tenant or tenants shall not be made dispunishable for waste. AND PROVIDED ALSO that no lease of my said copyhold or customary estates be granted without the previous licence for that purpose to be obtained of the lord or lady for the time being of the manor or manors whereof the same copyhold or customary estates are holden.

insure the same

5. AND I FURTHER DIRECT that my said trustees or trustee for To keep the premises in the time being shall, at their or his discretion, during such time as repair, and to my said youngest child, being a son, shall be under the age of against damage twenty-one years, or being a daughter, shall be under that age and by fire. unmarried, and at the costs of the said trust premises, keep all the dwelling-houses, buildings, and fixtures upon my said freehold and copyhold or customary hereditaments and premises and leasehold estates, in proper and tenantable repair; AND ALSO, during all such time as aforesaid, keep all such dwelling-houses, buildings and fixtures insured against damage by fire to the full value thereof, in some fire insurance office in England; and apply any moneys to be received by virtue of any such insurances in reinstating the property in respect of the damage whereof such moneys shall be so received.

ments, and also plant timber.

6. AND ALSO to drain, inclose, or otherwise improve any part of To drain, inclose, and my said freehold, copyhold, or customary and leasehold estates and make improvepremises; AND ALSO, if my said trustees or trustee shall deem it expedient so to do, to plant timber or other trees on any part of the said real estates as shall be of freehold tenure. (b) AND ALSO

(b) The power of planting timber should be restricted to the freehold portion Practical of the property, as it would be an act of waste in the owners of copyhold or suggestions.