only from the depositions themselves that they were such, or were persons acquainted with the customs of the manor; and their depositions, supposing them to be only admissible as declarations of persons deceased, were not inadmissible on account of their being made post litem motam, because the same custom was not in controversy in the former suit as in the present (n).

of proof of

A copyholder for lives, held of a manor in which Effect of want copyholds were held for lives, renewable upon pay- custom. ment of such fine as might be agreed upon between the lord and the tenants, was surrendered by L., the last surviving life, to the lord, "to the intent that he might regrant it to M., or such other person or persons, and for such life or lives, estates or interest as should be agreed upon between the lord and M." M., who was never admitted, mortgaged his interest, and the mortgagees were in possession of the land until after the death of L., when possession was taken by the lord. A bill was afterwards filed by the mortgagees against the lord to procure such grants to be made to them as M., or the plaintiffs deriving through M., were entitled to according to the custom of the manor. It was held upon appeal, that, upon the surrender of L., M. became entitled to be admitted to some estate, but that the lord could not be called upon to make a grant without receiving compensation; and that the plaintiffs having put the whole of their case upon the custom of the manor, and not having shown a custom of renewal within the manor, upon payment of a fine certain, were not entitled to succeed in this suit, and the bill was dismissed (o).

(n) Freeman v. Phillips, 4 M. & Selw. 485.

(0) Walker v. Earl of Abingdon, 5 Jur. 714; 10 Law J. N. S. Ch. 289.

Freebench depends on custom.

7. Of Freebench.

Copyholders not having the freehold of their lands, their widows are not of common right entitled to dower in respect of copyholds; but in most manors there is a custom that the widows of copyholders shall have a certain portion of their husbands' lands for their support, which is generally called the widow's freebench. This right, depending upon the particular customs of each manor, varies both as to the quantity to which the widow is entitled and the conditions under which it is held (p). In most manors freebench consists of one-half of the husband's copyhold lands, in others of a third, and in some few of the whole. It is generally an estate for life; but in some manors it continues only while the widow remains sole, and sometimes only while she remains sole and chaste, the forfeiture being sometimes absolute and sometimes redeemable (q). Where the widow takes the whole of her husband's lands, the custom seems to cast the possession upon her immediately upon her husband's death, as it does on the heir in case of descent (r). In such case, therefore, she may enter upon them immediately, and before any admittance, but where she takes a part only of the lands she cannot enter until an assignment be regularly made to her; for in this case it should seem that the possession is not cast on her, any more than at common law, the heir being then the tenant of the whole estate (s). An ejectment will not lie for a third part of a copyhold as freebench

(p) 4 Rep. 22 a. The act 3 & 4 Will. 4, c. 105, for amending the law of dower, does not include freebench.

(q) Co. Litt. 33 b; 1 Keb. 926; 3 Real Prop. Rep. p. 14.

(r) Gilb. Ten. 273, 287; Howard v. Bartlet, Hob. 181, 244; Harden v. Stone, Hutt. 18; Vaughan d. Atkins v. Atkins, 5 Burr. 2787.

(s) Gilb. Ten. 47, n. (s), 5th ed. See post, Ch. IV. sect. 1, as to fines in respect of freebench.

before it has been assigned, but the widow must levy a plaint in the manor court, in the nature of a writ of dower; and the homage must set out the same (t). A plaint for freebench or dower may still be brought(u). The widow of a tenant in tail of copyhold is entitled to freebench, though there is no custom as to freebench of widows of tenants in tail, but only as to freebench of widows of tenants in fee (v). Freebench may also by custom be incident to copyholds for lives of which their husbands died seised (x).

feated.

Generally the right to freebench does not, like How dedower, attach on all copyholds whereof the husband was seised during the coverture, but only on those whereof he died seised (y). Where the widow's right depends upon the husband dying seised, he may alone defeat his wife's right of freebench by almost any alienation in his lifetime, as by bankruptcy (2), or by surrender to a purchaser (a), or to a mortgagee who is admitted (b). The performance of an unexecuted agreement by the husband for the sale or mortgage of copyholds has been decreed in equity in exclusion of the widow's claim (c). The widow may lose her freebench by the husband's forfeiture of the estate, whereby his interest was determined (d). A lease for years according to the custom of the manor is valid against the right to freebench (e).

The widow of a purchaser, who dies before his ad(t) Chapman v. Sharpe, 2 Show. 198; Jurden v. Stone, Hutt. 18. (u) 3 & 4 Will. 4, c. 27, s. 36.

(v) Doe d. Duke of Norfolk v. Sanders, 3 Dougl. 303.

(x) Chantrell v. Randell, 1 Lev. 20; Howard v. Bartlet, Hob. 181; Salisbury v. Hurd, Cowp. 481.

(y) Carth. 275; 2 Ves. sen. 633, 638; 2 Atk. 526.

(z) Parker v. Blicke, Cro. Car. 568; Gilb. Ten. 406, 416, 5th ed.

(a) Vaughan d. Atkins v. Atkins, 5 Burr. 2787.

(b) Benson v. Scott, 4 Mod. 251; 12 Mod. 49; Skin. 406.

(c) Hinton v. Hinton, 2 Ves. sen. 633, 691; Ambl. 277; Brown v. Raindle, 3 Ves. 256.

(d) 1 Freem. 516.

(e) Fardey's case, Cro. Jac, 36; Gilb. Ten. 415, 5th ed.

Freebench notwithstanding alienation.

mission or the presentment of the surrender, is entitled to freebench; for a subsequent admission makes the husband seised from the date of the surrender (ƒ). A widow shall have freebench, though her husband, who succeeded as heir, was not admitted (g). On the principle that an admission under a surrender relates back to the time when it was made (h), the admission of a devisee under the will of a husband, who has surrendered to the use of his will, will preclude the wife's right to freebench. But whether a devise without any such surrender had the same operation under the statute 55 Geo. 3, c. 192 (i), which declares that a will without a surrender shall be as effectual to all intents and purposes as if a surrender had been made, is a point which does not appear to have been decided (k).

By the custom of the manor of Cheltenham, as settled by the statute 1 Car. 1, the widow of a copyholder is entitled to dower out of customary lands of which her husband was tenant during the coverture, although such lands had been aliened during the coverture by the husband alone, without the wife having been examined in court or joined in the surrender (1). Where lands held of that manor, between the time of alienation by the husband and of his death, have been improved in value by buildings, the widow is entitled to dower, according to the value at the time of his death, although one-third remain not built upon; and if the lands so aliened are, at the death of the husband, in the possession of several persons, whether by

(f) Vaughan d. Atkins v. Atkins, 5 Burr. 2785; 2 Wils. 16; 1 T. R. 600.

(g) Gilb. Ten. 372, 5th ed.; Watk. Desc. 49, 54, 3rd ed.
(h) Co. Litt. 59 b.

(i) See 7 Will. 4 & 1 Vict. c. 26, s. 3.

(k) See Hill v. Hill, Co. Entr. 123 a, 125 a.; 2 Watk. Cop. 61, n., 4th ed.

(1) Riddell v. Jenner, 10 Bing. 29; 3 M. & Scott, 673. In some other manors the wife is entitled to freebench of all copyholds of which the husband was seised during the coverture, 1 Scriv. 90.

the immediate act of the husband or the act of his alienee, dower must be assigned as to one-third of the lands of each such possessor (m).

A wife is not entitled to freebench of copyholds or when barred. customary freeholds, to which her husband was beneficially entitled as cestui que trust (n), or as a trustee (0). The right to freebench will be barred by a jointure settled on the wife before marriage in bar of all dower or thirds out of any lands of which the husband should be seised, during the coverture, of the freehold or inheritance(p); although copyholds are not within the Statute of Jointures, 27 Hen. 8, c. 10 (q). A devise by the husband to his wife, in lieu of all dower or thirds, out of his real estate, is so far a bar to her freebench as to put her to her election to take one or the other, but not both (r).

Effect of

An absolute and complete enfranchisement of copy- enfranchiseholds in the husband's lifetime will destroy the wife's ment. title to freebench, because the estate had become freehold (s). The mere conveyance of the freehold interest in copyholds, which cannot operate as an enfranchisement until the death of the husband, will not destroy the right of freebench (t); nor will the lord's conveyance of the freehold of a copyhold to a stranger, because such conveyance does not destroy the copyhold. After the final enfranchisement of any copyhold lands under the copyhold acts, the lands included

(m) Doe d. Riddell v. Gwinnell, 1 Gale & D. 180; 1 Q. B. 682. (n) Forder v. Wade, 4 Br. C. C. 521; Godwin v. Winsmore, 2 Atk. 526.

(0) Bevant v. Pope, 2 Freem. 71.

(p) Walker v. Walker, 1 Ves. sen. 54.

(q) Sects. 6-9; Cro. Car. 550, 568; Gilb. Ten. 239, 5th ed. (r) Warde v. Warde, Ambl. 299. See Shelford's Real Prop. Stat. 402, 403, 5th ed.

(8) Lashmer v. Avery, Cro. Jac. 126; Dugworth v. Radford, W. Jones, 462.

(t) Howard v. Bartlet, Hob. 181; Jurden v. Stone, Hutt. 18; Waldoe v. Bartlet, Cro. Jac. 573.