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will be ineffectual (d). In these manors it is necessary for the wife to join in a conveyance of land by the husband, or to surrender after separate examination by the steward to the purchaser either before or after the husband's conveyance, technical reasoning having been somewhat disregarded by the courts when its effect was to prevent property being alienable by reason of a wife's right of freebench (e); or after the purchaser's admittance the wife may release her right by deed. Every right of freebench, when it has accrued, may be released to the tenant in possession, or the widow may be admitted and surrender to his use; but by the customs of some manors the wife can defeat her freebench only by surrender (ƒ).

In the more usual case, where freebench can only be claimed out of the lands of which the husband died in possession, any alienation made by him during his life will be preferred to the widow's claim, and she will be defeated in equity by his contract to alienate the land (g). Thus she will be postponed to a lessee or mortgagee (h), and will take subject to all other estates created by the husband (i). Any determination of his estate will have the same effect as a conveyance made by him, and the widow's claim will be defeated by his bankruptcy (k), or forfeiture (1); or by the enfranchisement of his estate or extinguishment of the copyhold tenure, for the land then becomes freehold, and the right to freebench will become a right to dower, and therefore subject to the law as to dower (m); but the grant of the freehold of a copyhold by

(d) Powdrell v. Jones, 2 Sm. & G. 407.

(e) Wood v. Lambirth, 1 Ph. 8. (f) See Powdrell v. Jones, 2 Sm. & G. 407.

(g) Co. Litt. 59 b; Vaughan v. Atkins, 5 Burr. 2764; Hinton v. Hinton, 2 Ves. 631; Brown v. Raindle, 3 Ves. jun. 256.

(h) Fareley's Case, Cro. Jac. 36; Benson v. Scott, 4 Mod. 251.

(i) Salisbury d. Cooke v. Hurd, Cowp. 481.

(k) Parker v. Bleeke, Cro. Car. 568.

(1) Anon., 1 Freem. 516.

(m) See Dunn v. Green, 3 P. Wms. 9; Challoner v. Murhall, 2 Ves. jun. 524.

Freebench barred by devise.

the lord to a stranger will not destroy the widow's freebench in such land, for it still remains copyhold (n).

Under the old law, in cases where freebench could be claimed only out of lands of which the husband died in possession, a surrender by the copyholder to the use of his will, followed by a devise, destroyed the widow's right to freebench (0). By the Act 55 Geo. III. c. 192, the necessity for a surrender to the use of a will was dispensed with; and by virtue of the provisions of that Act, a devise by itself took effect as if the testator had surrendered, and therefore it destroyed the widow's freebench. The Wills Act, 1837 (p) repealed the Act of George III., but reenacted its provisions in an extended form, and its effect was "to break in upon the customary law of copyholds for the purpose of giving an unlimited power of devise" (q). The same effect must, therefore, be given now to a devise of copyholds, as under the law prior to the passing of the Wills Act; and consequently, where a testator, who had married after the Dower Act came into operation, died entitled to certain copyholds which he had purchased, and by his will devised all his real estate upon trusts for sale and conversion, it was held that his widow was not entitled to freebench (r).

2. Customary Curtesy.

Customary curtesy differs in several respects from an estate by the curtesy in freeholds, where the husband holds for his life the lands of which his wife was actually seised for a legal or equitable estate of inheritance, provided he has had issue by her born alive during the marriage, and capable of inheriting the estate (s). The husband has no

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tenements.

such estate in his wife's copyholds, except by special custom (t); and the custom determines in each case whether he is to hold for his life, or to lose the land upon a second marriage; whether the birth of issue is a necessary condition or not; and whether the right may be claimed in the wife's equitable estate (u). But in general the custom Out of what is confined to the case of the woman being the legal tenant at the time of her death; though even in this case, if the woman had a legal estate against all the world except the lord being entitled by descent or surrender before admittance, the husband will not be prejudiced by the nonadmittance of the wife (x). The custom is taken strictly; so that, under a custom that where a man marries a customary tenant he shall have curtesy, it has been held that the woman must be a copyholder at the time of the marriage to entitle the husband to claim (y).

for lives.

The customary curtesy is not necessarily confined to the In copyholds wife's copyholds of inheritance, the husband being entitled by the customs of a great number of manors to the copyholds for lives held by his wife, as a continuance of her estate.

The quantity of the husband's estate differs according Quantity. to the particular custom, being in some places the whole of the wife's land, and elsewhere a moiety, or a third, or some other fraction. When he is to take the whole, his estate (as with freebench under similar circumstances) is perfect without admittance as against everyone but the lord, being a continuance of the wife's estate. Where he is entitled to a portion, it is said that he cannot enter without assignment (); it does not, however, seem to be

(t) Brown's Case, 4 Rep. 21 a, 22 a; Rivet's Case, 4 Rep. 22 b; Paulter v. Cornhill, Cro. Eliz. 361.

(u) Co. Litt. 30 a, 111 a; Ever v. Aston, Moo. 271; Rob. Gav. 178, 179. (x) Doe d. Milner v. Brightwen, 10 East, 583.

(y) Savage's Case, 2 Leon. 109;

but see Clement v. Scudamore, 1 P.
Wms. 63, 69, where the authority
of this case is denied, and Gilb.
Ten. 326.

(~) Watk. Copyh. ii. 74; Scriven,
Copyh. 80; and see cases and au-
thorities cited in notes (i) and (k),
ante, p. 162.

How barred.

Fee simple by

custom.

Claim by adverse possession.

Gavelkind lands.

Commuted copyholds.

clear why he should not hold, in common with the heir, without any assignment, as has always been usual in the case of customary curtesy of freehold gavelkind lands.

The husband's inchoate right may be extinguished by his joining in the wife's conveyance, or by the extinguishment of the copyhold tenure or enfranchisement of the tenement, or by the wife's forfeiture; and in equity his right will be excluded by an express declaration that the land shall be free from his claim («).

By the custom of Taunton Deane, and formerly by some other customs, the husband, if duly admitted in the wife's lifetime, will inherit the fee simple of the copyholds of which she died actually in possession (b).

In a case where the husband of a deceased copyholder had a good customary title to hold as tenant by the curtesy, his possession after the wife's death was referred to that title, and his heir was not allowed to set up an adverse title under the Statutes of Limitation, as against the heir of the wife claiming within twenty years after the husband's death, even though the husband was admitted after the wife's death to hold to the uses of a settlement, which gave the estate to the survivor of them in fee (c).

By the custom of Kent, the husband is tenant by the curtesy of a moiety of his wife's gavelkind tenements, whether issue were born or not, and loses his estate by a second marriage (d); and in freehold lands of the tenure of burgage and ancient demesne, there are other customary varieties of the husband's tenancy by the curtesy.

When copyholds have had the services commuted, under the Copyhold Act, 1841, they become liable to the ordinary

(a) Bennett v. Davis, 2 P. Wms.

316.

(b) Shillibeer, Customs of Taunton Deane, 49; see Compton v. Collinson, 1 H. Bl. 334, 343, as to

manors in Westmorland.

(c) Doe d. Milner v. Brightwen, 10 East, 583.

(d) Rob. Gav. 179; Elton, Ten. of Kent, 43, 91, 328.

law of curtesy applicable to freeholds, although the copyhold tenure remains (e).

Among the other incidents of a copyhold estate which require consideration are guardianship, fines on admittance and alienation, customary reliefs and heriots, and other payments and services, which will now be mentioned in order.

3. Guardianship.

The guardianship of an infant heir of copyholds belongs, in the absence of custom, to the guardian in socage, or nearest of kin to whom the land cannot descend (f). Guardianship in socage cannot properly arise unless the infant is entitled by descent to freehold lands; where it arises, it extends not only to the infant's person and socage estates, but also to his copyholds, unless there is a special custom for the lord to appoint a guardian. Where Who may be guardian. there is no descent of freeholds to the infant, the same person will be guardian by custom (unless the lord has the wardship) as would have been guardian by socage, if the land were freehold (g). By the special custom of a manor the lord may be the guardian, and appoint the custody of the estate to his bailiff, or may nominate the guardian, or otherwise dispose of the land according to the custom of the manor (); and where the lord has this privilege, a guardian appointed by the father or mother will not be entitled to deal with the copyholds (i).

The guardian himself is not admitted, except as repre- Powers of guardian. senting the infant, and can do no personal services, as fealty or suit of court, but will manage the land and account for the profits; and he will pay the rents and dues to the lord. His leases will determine at the close of the guardianship, unless ratified by the infant (k). This

(e) 4 & 5 Vict. c. 35, s. 79.

(f) Egleton's Case, 2 Ro. Ab. 40, tit. Garde; Rex v. Wilby (Inhabs. of), 2 M. & S. 504, 509.

(g) Co. Litt. 88 b, n. 13 (Harg.). (h) Com. Dig. Copyh. K. 5.

(i) 12 Car. II. c. 24, ss. 8, 9; Clench v. Cudmore, Lutw. (Nelson's ed.), 371; 49 & 50 Vict. c. 27, s. 4.

(k) Roe d. Parry v. Hodgson, 2 Wils. 129, 135.

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