became altered by imperceptible degrees, and Personal
Property.
the deceased might bequeath by will the whole
of his goods and chattels; though we cannot
trace out when first this alteration began. The
ancient method continued in use in the province
of York, the principality of Wales, and in the
city of London, till very modern times; when,
in order to favour the power of bequeathing, and
to reduce the whole kingdom to the same standard,
three statutes were provided, the one 4 & 5 W.
& M. c. 2, explained by 2 & 3 Ann. c. 5, for the
province of York; another, 7 & 8 W. 3, c. 38,
for Wales; and a third, 11 Geo. 1, c. 18, for
London; whereby it is enacted, that persons
within those districts and liable to those customs,
may (if they think proper) dispose of all their
personal estates by will; and the claims of the
widow, children, and other relations, to the con-
trary, are totally barred. Thus was the old
common law utterly abolished throughout all the
kingdom of England, and a man might devise
the whole of his chattels as freely as he formerly
could his third part or moiety.

SECT. 3.

Power under 1 Vict. c. 26.

This section consolidates all the former statutes Testamentary by which property has been rendered disposable by will, and enacts generally, "that it shall be lawful for every person to devise, bequeath, or dispose of by will all real estate and all personal estate, which he shall be entitled to, either at law

32.

SECT. 3.

Copyholds and
Customary
Freeholds.

Testamentary Power under 1 Vict. c. 26.

or in equity, at the time of his death, and which if not devised, bequeathed, or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator." It then goes on to obviate several uncertainties which arose upon the statutes of wills, and were remedied by subsequent statutes, as well as to supply what seem to be defects in all the former enactments, by declaring that this power shall extend to customary freeholds and copyholds, without surrender, and before admittance, and notwithstanding special customs to the contrary; to estates pur autre vie; to contingent, executory, and other future interests; to rights of entry; and lastly, to property acquired after the execution of the will.

To examine separately the alterations which are effected by this clause. Copyholds, as it was stated above, were indirectly subjected to testamentary disposition by means of a surrender to the use of a will, by which the use was See Evans' Sta- declared. This power, says Mr. Evans, was tutes, notes to 32 H. 8, c. 1.

originally dependent wholly upon special custom, but in Pike v. White, 3 Bro. Ch. C. 286, it being alleged that, according to the custom of a manor, copyhold lands holden thereof could not be surrendered to the use of a will, and were not devisable by virtue of any custom of such manor, Lord Thurlow, C., said, it was totally impossible to say that a copyhold surrendered to the use of a will

SECT. 3.

should not pass thereby, and therefore he must declare the custom (if there were such a one) bad. See Church v. Mundy, 15 Ves. 396. Thus Cru. Dig. Tit. 38, c. 4, s. 2. it seemed to be decided that by the general custom of all manors, every copyholder had a right to surrender his estate to the use of his will; though doubts have been entertained as to Lord Thurlow's general proposition as reported by Mr. Brown in the case of Pike v. White; and particular customs were held paramount notwithstanding. But many hardships and inconveniences arose even where there was a custom of surrendering to the use of a will; owing to the frequent neglect of making such surrender, by which alone the estate could pass agreeably to the intentions expressed in the will. In some cases the Court of Chancery supplied a sur

:

render and the 55 Geo. 3, c. 192 (a), was Doe v. Bartle, 5 B. & A. 492. framed, by which surrenders to the use of wills, where surrenders are within the custom of Evans' Statutes, tit. Wills, note. a manor, are dispensed with. But there are manors in which no such custom can be traced upon the records, and there are customary estates not within 55 Geo. 3, c. 192, and not susceptible of devise otherwise than by the medium of deeds of trust; and which, in some

(a) Mr. Evans, who prepared this bill, says of it: "According to the draft which I submitted, the provision would have been general, as embracing all copyholds and customary estates, with respect to such interests as a testator could by any mode of conveyance have disposed of." (Coll. of Stat. note.)

c 5

34

SFCT. 3.

Doe v. Tofield, 11 East, 246.

Copyholds and Customary Freeholds.

instances, must be renewed annually, or after certain periodical intervals, so that if the time of renewing them is suffered to elapse, or the testator falls into a state of incapacity, the devise becomes inoperative. And it is probable that other anomalous customs exist in some manors, by force of which the legal estate in the copyholds could not, before this act was passed, be devised. And cases not unfrequently occurred in which a person entitled to the full enjoyment of copyhold estates, had neglected to be admitted to them, or was prevented by accident; and, therefore, was not in a position (a) to surrender them to the use of his will, though in reason he ought to have had the power of devising them. It seems to be the intention of the legislature to make property of this nature directly devisable in all cases; for which purpose it is declared that the general power of devising given by this section, "shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise, to be admitted thereto, he shall not have been admitted 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

(a) It was decided in Right v. Banks, 3 Barn. & Adol. 664, that an heir could devise before admission.

have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this act, if this act had not been made."

SECT. 3.

tre Vie.

The law with respect to the passing of estates Estates pur aupur autre vie, upon the death of the tenant, living the cestui que vie, has hitherto been involved in much difficulty. If no person were named in the grant to take the estate in that event, it did Bl. Comm. not descend to the heir, because it was not in- book ii., ch. 16. heritable; and the executors and administrators

were not entitled to it, because it was a freehold. It was therefore without any legal owner; and in the case of a freehold corporeal hereditament, the first person who entered and took possession, was allowed by the law to retain it for his own benefit. He was called the occupant. In the case of a copyhold hereditament, the lord became entitled to it, because as owner of the freehold, he was considered to be in possession, and therefore no other person could gain a title by occupancy. In the case of a rent or other incorporeal hereditament, the estate determined on the death of the owner; because there could be no entry, and therefore no title by occupancy.

The statute 34 & 35 Hen. 8, only extending to estates in fee simple, did nothing towards re

Report of Real Property Commissioners, 1833, p. 9.