leaving the said [executor's names], him surviving who proved the said will in the [Ecclesiastical Court], on the

day of

A. D. 18—. AND THE JURORS aforesaid, upon their oath aforesaid, do further find and present that, by virtue of the said will, and by the operation of an Act of Parliament, made and passed in the first year of the reign of her present Majesty Queen Victoria, intituled "An Act for the amendment of the Laws with respect to Wills," the said [executors], as such executors aforesaid, are entitled to be admitted tenants to the said hereditaments and premises hereinbefore described, upon payment of their fine, and upon payment and performance of the rents, suits and services therefore due, and of right accustomed according to the custom of the said manor, BUT nevertheless, upon the trusts of the said will of the said [testator], deceased, and subject to such right and equity of redemption as the said hereditaments and premises are now subject to and not otherwise.

No. 13.

INQUISITION presenting that an executor is entitled to be admitted to an equity of redemption in a leasehold plot of land and buildings bequeathed by will.

THE JURORS aforesaid, upon their oath aforesaid, do find and present that [testator] late of [residence] in the county of [state] yeoman, deceased, under and by virtue of a certain surrender or memorandum thereof in writing duly passed and executed by [mortgagor] of [residence] mercer, bearing date the day of, A. D. 18-, and of an admittance thereupon of

day of

the A. D. 18-, became fined and possessed according to the custom of the said manor to him, his executors, administrators and assigns, for the remainder then to come unexpired of a certain term of [term] years created in and by a certain other surrender or memorandum thereof in writing, bearing date the day of (upon which last mentioned day of, A. D.

surrender admittance was granted on the 18-) and commencing from the day next before the day of the date of the same, of and in ALL that plot [parcels] of the yearly rent to the lord of the said manor of [fine] TOGETHER with the appurtenances, subject nevertheless to the payment of the yearly rent of [ground rent] in equal half-yearly portions on the

day of and the day of in each year, and to

the powers, provisoes, clauses, reservations, and restrictions reserved, mentioned, and contained in the said hereinbefore recited surrender of the 12th day of December

AND

subject also to the intent, condition, or agreement for redemption of the said hereditaments and premises thereunder written on payment by the said [mortgagor] his executors, administrators, or assigns unto the said [testator] now deceased, his executors, administrators, or assigns of the sum of [amount] and interest at the time and in manner therein mentioned. AND THE JURORS aforesaid, upon their oath aforesaid, do further find and present that the said [testator] duly made and executed his last will and testament in writing, bearing date the day of and thereof appointed [name] of [locality, &c.] sole executor. AND THE JURORS aforesaid, upon their oath aforesaid, do further find and present that the said [testator] continued to be so fined and possessed of the said copyhold premises to the time of his death, AND that he departed this life on the day of without having revoked or altered his said will. AND that the said will was on or about the day of, A. D. 18-, duly proved by the said [executor] in the [Ecclesiastical Court]. AND THE JURORS aforesaid, upon their oath aforesaid, do further find and present

that the said [executor] as such executor as aforesaid is entitled to be admitted tenant to all and singular the said copyhold hereditaments and premises, with the erections now standing and being thereon for the said residue of the said term of [term] years as in the said recited surrender of the

day of

A. D. 18—, is mentioned. BUT nevertheless upon the trusts of the said will of the said [testator] deceased, upon payment of the yearly rent, and performance of the suits and services therefore due, and of right accustomed according to the custom of the said manor.

28

CHAPTER IV.

FREEBENCH AND CURTESY.

COPYHOLDS are so far controlled by the custom of the several manors as not to be always subject to the incidental estates at common law, such as dower and curtesy: it follows, therefore, that a wife is not dowable nor a husband entitled as tenant by curtesy, unless by special custom (a). There is, however, in every manor a custom specifically designatory of the particular interest to be taken by the widower or widow of a deceased copyholder: in some manors a widow takes the inheritance, in other manors the whole, or a moiety, and in others and most generally a third part, as at common law for life by the name of freebench. The estate of freebench is held to attach only to such copyholds as the husband may have died seised of, but this again is regulated by custom, since in some manors the interest attaches to all the copyholds held by the husband during his life, even in those for lives (b). Where, however, the husband has aliened the copyhold, and the wife has been separately examined as to her assent to such, and her name is joined with that of her husband in the surrender or conveyance she cannot claim freebench (c). Admittance of a surrenderee is not an indispensable bar to the freebench of the widow of the surrenderor (d), but it appears questionable

(a) Vide Scriven on Cop., 4th edit., vol. 1, p. 46; 4 Co. Rep. 306. (b) 2 Watkins on Cop., p. 62, 69, 4th edit,

(c) 2 Watkins, 3rd edit., 341. Riddell v. Jenner, 10 Bing. 29. (d) Scriven, 4th edit., p. 73, n. (u).

whether her husband's contract for sale alone can successfully militate against her right (e); yet a surrender by way of mortgage or covenant to surrender is considered an absolute bar(ƒ). Copyhold and customary trust estates are not liable to dower, neither estates resting on contract, as, for instance, the widow of a copyhold purchaser who has neglected to take a surrender, or if the surrender be void for any reason, such as want of presentment, is not entitled. The widow of an unadmitted heir is dowable, and if the mother of the deceased heir enjoy dower his widow must be endowed of the remaining interest (g). Since copyholds are not within the late Dower Act, 3 & 4 Wm. 4, c. 105, nor within the Statute of Uses and Jointures, 27 Hen. 8, c. 10, it is essential in marriage contracts to observe the legal effect of jointures in lieu of dower, and to arrange (where practicable) so as to obviate any legal objection; a special agreement should particularly state the provision made in substitution of freebench. (Vide Scriven Cop., 4th edit., vol. 1, p. 76). By will a copyholder may make a decree or bequest in satisfaction of dower, but this can only put the widow to election. (Vide Grayson v. Deakin, L. T., vol. 10, No. 307, p. 445). In cases of freehold it is quite the reverse where the husband, in all marriages since Jan. 1834, may in every conveyance made to him (and without the old uses to bar dower) or in his will absolutely forbid any claim of his widow. With regard to curtesy as in freebench, the custom of each particular manor must be consulted. Although such estate in copyholds is generally governed by the same principle as in freeholds; still a contrary practice may possibly obtain (h). As a general rule, however, the widower of a deceased wife who has born to him a child capable of inheriting any copy

(e) Hinton v. Hinton, 2 Ves. Sen. 631, 638. Brown v. Raindle, 3 Ves. Jun. 256. Musgrave v. Dashwood, 2 Vern. 45, 63.

(f) Note (g) in Scriven, 4th

edit., vol. 1, p. 75.

(g) Baker v. Beresford, Sir T. Raymond, 58.

(h) 4 Co. Rep. 226.