reasonable. quired by means of a grant from the then lord of the manor to his tenants (d). But the courts will not Hence must be support any alleged right which is unreasonable, for they will decline to believe that it could ever have been granted. For instance, they have refused to presume a grant under which the tenants of a manor claimed to exclude the lord altogether from the waste (e), and, conversely, have held customs to be bad under which the lord claimed to make long leases of the whole of the waste (ƒ), or to enclose it entirely at his pleasure (g), since such privileges on his part would be inconsistent with the existence of commonable rights in his tenants. The lord of a manor is, however, empowered by the Statute of Merton (h) to enclose the waste, provided he leaves sufficient for the tenant's pasture (i), and a custom for him to grant part of it with the consent of his tenants () is good, as is also one enabling him to dig for clay or minerals in the waste, both for his own use and for the purpose of sale (k), even though he may thereby not leave sufficient pasturage for the tenant's cattle (1). Freebench. We come next to the consideration of the copy- Curtesy and holder's estate, apart from any rights of the lord. It will be recollected that an estate of inheritance in freehold land is, in certain cases, subject to the incidents of curtesy and dower. These are reproduced, with some variations, in copyholds, but both their existence and their peculiar form depend upon, and are regulated by, the custom of each manor (m). (d) See Gateward's Case, 6 Rep. 59b. (e) Co. Litt. 122; Hopkins v. Robinson, I Mod. 74. (f) Badger v. Ford, 3 B. & Ald. 153. (g) Arlett v. Ellis, 7 B. & C. 346, 365. (h) 20 Hen. III. c. 4. (i) See Betts v. Thomson, L. R. 6 Ch. 732. (j) Steel v. Prickett, 2 Stark, 463, 470. (k) Hall v. Bryson, 4 Ch. D. 667; see also Robinson v. Duleep Sing, II Ch. D. 798. (1) Bateson v. Green, 5 T. R. 411. (m) See Brown's Case, 4 Rep. 21a, No curtesy except by custom. Birth of issue not always necessary. Curtesy in equitable estates. Freebench depends upon custom. Thus, there can be no curtesy in such an estate except by custom (n), but, on the other hand, where there is a custom, it is not always necessary that the husband should have had issue born to him, and it would even seem to be doubtful whether the birth of issue is in any case essential (o). A husband may also have an estate by curtesy, where his wife has had an equitable estate of inheritance in copyholds, except in cases where the wife's estate has been given to her entirely for her separate use, and she has disposed of it by deed or will (p). Dower is more generally known in copyholds as Freebench. It only exists when sanctioned by custom (q), by which also it is regulated. The widow's right to freebench does not, except in some special cases (r), attach to any land other than that of which her husband died seised (s). Hence, any surrender feated by hus made by him will bar her right to freebench, although May be de band's sur render. the surrenderee may not be admitted until after the husband's death (t), since, as previously mentioned, admittance, when it takes place, dates back to the time of the corresponding surrender. This rule formerly applied to the case of a surrender to the use of the husband's will. And now that the Wills Act (u) has made a surrender to the use of a will unnecessary, a simple devise of copyholds will deprive the testator's wife of her dower in them (v). A wife is not entitled to dower out of copyholds to which her husband had not been admitted, although they had been surrendered. to his use (w). It would seem that the Dower Act (n) Rivet's Case, 4 Rep. 22b. The word "cannot omitted in the report. (0) See 2 Wat. Cop. 74; Scriv. Cop. 71. (q) Shaw v. Thompson, 4 Rep. 3ob. (r) See Doe v. Gwinnell, 1 Q. B. 682. " is evidently (s) Benson v. Scott, 4 Mod. 251; Godwin v. Winsmore, 2 Atk. 525, 526. (t) Powdrell v. Jones, 18 Jur. IIII. (u) 7 Wm. IV. and I Vict. c. 26. (v) Lacey v. Hill, L. R. 19 Eq 346. (x) does not apply to copyholds (y). But a widow who has had any other provision made for her out of her husband's lands will be compelled to choose between that and her dower (2). the copy We come next to the alienation of the copyholder's Alienation of estate, which may be either involuntary, as where it is holder's estate. taken for payment of his debts or is forfeited to his lord; or voluntary, as when he disposes of it during his lifetime or by his will. Copyholds could not formerly be extended under a writ of elegit for non-payment of the tenant's debts. Now, however, the 1 & 2 Vict., c. 110, has (a) ex- Judgments. pressly included lands and hereditaments of copyhold or customary tenure amongst those which may be taken in execution under such a writ, but provides that the party to whom any copyhold or customary lands shall be delivered in execution shall be liable, and is thereby required, to make, perform, and render to the lord of the manor, or other person entitled, all such and the like payments and services as the person against whom such execution shall be issued would have been bound to make, perform, and render, in case such execution had not issued; and that the party so suing out such execution, and to whom any such copyhold or customary lands shall have been so delivered in execution, shall be entitled to hold the same until the amount of such payments and the value of such services, as well as the amount of the judgment, shall have been levied. Forfeiture of a copyholder's land is incurred if he, Forfeiture. without licence from his lord, and unauthorised by custom, commits on his land any act of waste, either (x) 3 & 4 Wm. IV. c. 105. (y) Powdrell v. Jones, 18 Jur. IIII, II12. (2) Walker v. Walker, 1 Ves. 54. (a) S. 11. M Wills of copyholds. Devise on trust for sale. voluntary or permissive (b), or if he, under similar circumstances, demise his land for more than one year (c); but a copyholder may safely make a lease for one year, with an agreement to renew it the next year, and so on, for this passes no interest greater than that for one year. We have already seen that a voluntary alienation of his land by a copyholder requires, if made by some instrument other than a will, a previous surrender to the lord of the manor, and that the same formalities were formerly essential to the devise of a legal interest in copyholds. An equitable interest in copyholds cannot be the subject of a surrender, excepting an equitable estate tail and the equitable estate of a married woman, for which special provisions have been made by the Fines and Recoveries Abolition Act (d). Hence an equitable interest in an estate which can be disposed of by will always passed by will without a previous surrender (e), and it followed that the devisee of such an interest could also devise it without a surrender (ƒ). And now the Wills Act (g) has made a surrender to the use of a will unnecessary in all cases where it was only a matter of form (h). From this it will be seen that a will of copyholds is now similar to one of freeholds; but a remark may be made here as to the best form of devise, where it is desired. that the property should be sold immediately after the testator's death. A devise to trustees on trust for sale will give them an estate in joint-tenancy, and we have seen that a larger fine is payable on the admittance of joint (b) Clifton v. Molineux, 4 Rep. 27a. (c) East v. Harding, Cro. Eliz. 498; Peachy v. Somerset, Str. 447. (d) 3 & 4 Wm. IV. c. 74, ss. 50, 90. (e) Tufnel v. Page, 2 Atk. 37. (f) Phillips v. Phillips, 1 My. & K. 649. (g) 7 Wm. IV. and i Vict. c. 26, s. 3. (h) See Doe v. Bartle, 5 B. & Ald. 492; Edwards v. Champion, 3 De G. M. & G. 202. tenants than on that of a single tenant (i). It is true that this difficulty may be partly overcome by making all the trustees except one disclaim before exercising any act of ownership over the estate (), for in such a case the lord is bound to admit that one on payment of a single fine (k). But it will still be necessary to pay a second fine on the admittance of the purchaser. The better plan, therefore, in the case supposed, is for the testator to devise the estate to such uses as the trustees of his will shall appoint; they may then sell without being admitted, and the lord must admit their vendee on payment of a single fine). It is to be noticed that this plan cannot be adopted where the estate is not to be sold. It is well settled that the will of a copyholder is nothing more than a direction to the lord as to the person who is to be admitted into the tenancy (m), and that on his death his estate descends to his heir, subject to the right of his devisees. to be admitted. Consequently, if his devisees are not trustees, and choose to disclaim the benefits conferred on them by the will, the heir has a right to be admitted on payment of a single fine (n). But if the devisees are trustees the case is different; for under such circumstances, unless the trustees disclaim their trust altogether, the lord cannot be compelled to admit the heir (o), although he will not be allowed to seise quousque if the heir is willing to be admitted (p). It remains to add, with reference to this part of Descent of our subject, that the descent of copyholds is, in the copyholds. absence of custom, the same as that of freeholds, but there is often some custom under which they descend (i) Wilson v. Hoare, 10 A. & E. 236. (j) Bence v. Gilpin, L. R. 3 Ex. 76. (k) Wellesley v. Withers, 4 E. & B. 750. (l) Holder v. Preston, 2 Wil. 400; R. v. Wilson, 11 W. R. 70. (m) Glass v. Richardson, 9 Ha. 698, 701; 2 De G. M. & G. 658; Garland v. Mead, L. R. 6 Q. B. 441, 447. (n) R. v. Wilson, 10 B. & C. 80. (0) R. v. Garland, L. R. 5 Q. B. 269. |