and the presentment might be obtained by petition in the courtbaron, or enforced in Chancery. (a). CHAP. IV. I. RIGHTS TO REAL PROPERTY. 3. Admittance. Admittances of copyhold are of three descriptions; first, upon a voluntary grant from the lord without any previous surrender, or where a customary tenement has escheated or been forfeited, (b) and the lord afterwards, as we have seen he may do, grants the same to a new tenant to hold of the ancient tenure and upon the same services; (c) or where by special custom parcels of the waste are granted de novo to hold as copyhold; (d) secondly, an admittance upon a surrender by the former tenant; and thirdly, an admittance upon a descent from the ancestor. With respect to the first, upon the re-grant of an escheat or forfeited copyhold, the re-grant must be upon precisely the same tenure and services as those subject to which it was before held without diminution or addition. (e) The lord's grantee in this case has title without further admittance. (ƒ) With respect to admittances upon Surrender, whether upon a conveyance or devise, they are of the most essential importance to vest the legal and perfect right in the surrenderee, for although the lord is a mere instrument, yet until admittance by him the estate remains in the surrenderor, so that if he die before admittance of the surrenderee, the legal estate descends to the heir of the surrenderor; (g) for which reason a surrenderee has no estate to forfeit nor does forfeit for a felony committed before admittance, for till then the estate remains in the surrenderor. (h) But if a surrenderee die before admittance, his heir will in equity be entitled to it, and the widow to freebench, though not to the legal estate. (¿) And where a devise was made by an unadmitted devisee, it was held that the second devisee could not recover in ejectment, because his admittance had no relation to the last legal surrender, but that the legal title remained in the heir of the surrenderor, the first testator.(k) The admittance must be to hold the same estate or quantity of interest as that limited by the terms of the surrender, or it will be void. (1) If the lord refuse to admit such surrenderee, the latter may compel admittance by bill in Chancery, (m) or now more usually by motion in the Court of King's Bench for a man I. RIGHTS TO REAL CHAP. IV. damus. (n) And though the surrenderee could not, (o) the surrenderor might sustain an action against the lord for his PROPERTY. refusal to admit. (p) The lord may by proclamation compel such a surrenderee to be admitted, and if a copyhold be granted for a term of years, it was held that the executor of the termor was obliged to be admitted, and that the lord was entitled to a fine upon such admission. (q) Before admittance such surrenderee has no legal estate but merely a possibility; he could not therefore himself make any efficient surrender, (r) nor make a devise so as to pass any legal interest, (s) nor could the surrenderee before admittance sustain any action founded on the right of property, though if in actual possession, he might, merely in respect of such possession, sue a stranger. But after admittance upon such a surrender, the legal right relates back by legal relations to the date of the surrender, unless it were only prospective in its terms, and on which account it has been held that in an action of ejectment, the day of the demise may be laid at any time after the surrender, though before admittance, provided, before the commencement of the action, there had been a sufficient admittance; (t) and a copyholder may maintain an action of trespass for mesne profits from the time of surrender, after he has been admitted and recovered in ejectment. (u) And after admittance, the surrenderee is considered to be an assignee of the reversion within the stat. Hen. 8, so as to enable him to sue in that character for breaches of covenant entered into with the surrenderor or his ancestors. (x) The admittance of the particular tenant is the admittance of the remainder-man, but the latter may be admitted by himself. (y) Admittances upon Descent, as regards any supposed transfer or perfecting the estate or interest, are wholly immaterial, for the heir has as complete a title without it as with it, for he can take possession and maintain every description of personal action or ejectment without ever obtaining any admittance; so that, excepting for the satisfaction of the heir, and to enable him to have the copy of his admittance ready to produce on all occasions, and excepting the securing payment of the fine and fees, the admittance of an heir is not of any utility, on which account the courts formerly would not compel the lord to admit, considering that form as a mere useless ceremony; (2) but now an heir may by mandamus compel the lord to admit him; (a) and the heir need not tender himself for admittance at the lord's court, if he has been previously refused by the steward out of court. (b) In order to compel the heir to pay the fine, (which is not usually payable until after admittance, (c)) the lord may, by the custom of most manors, compel the heir to be admitted by three successive proclamations for him to come in and be admitted, and if he shall neglect to do so, the estate may be seized and withheld quousque the heir appear to be admitted and pay the fine; (d) and after admittance, which is at least equivalent to an attornment, the party admitted cannot dispute the lord's title to the manor. (e) When the party entitled to admittance by descent or under a will is an infant or feme covert, the 9th Geo. 1, c. 29, provides against forfeiture and a remedy for the lord's fine, by enabling the lord to appoint a proper guardian to be admitted, and who has powers enabling him to raise and pay the fine. (ƒ) CHAP. IV. I. RIGHTS TO REAL PROPERTY. ment. By the mutual consent of the lord and his customary tenant, Enfranchisethe copyhold estate may be Enfranchised and converted into a perfect fee-simple estate, and which may be effected by the lord's conveying, mediately or immediately, to the tenant the freehold of the particular or specific premises which were held by copy, or by releasing to the tenant his seignorial rights. (g) And if a party by mistake sell an estate as freehold, and a part be discovered to be copyhold, a Court of Equity will give time to the vendor to get the latter enfranchised, so as to enable him to perfect the title to the whole. (h) DEVISE. The right to transfer an estate or interest in corporeal or FOURthly. incorporeal property of freehold tenure by Will was first given ALIENATION BY by 32 H.8, c. 1, and 34 & 35 H. 8, c. 5, but which only authorized the devise of two-thirds of the estate, reserving one-third The statutes to the king or the lord, to countervail the advantages derived 32 H. 8, c. 1; from wardship, primer seisin, &c.; and when those benefits were annulled by the stat. 12 Car. 2, c. 24, it followed that the 34 & 35 H. 8, c. 5. CHAP. IV. 34 & 35 Hen. 8, c. 5, s. 4. The 29 Car. 2, c. 3, s. 5, 6. entire interest in freehold, when of inheritance, became devisable. The power to devise freehold of inheritance and the form of the devise now depend upon the enactments in 34 & 35 H. 8, c. 5, s. 4, and the statute against frauds, 29 Car. 2, c. 3. The former enacts "that all and singular person and persons having a sole estate or interest in fee-simple, or seised in feesimple in coparcenery, or in common in fee-simple, of and in any manors, lands, tenements, rents, or other hereditaments, in possession, reversion, remainder, of rents or services incident to any reversion or remainder, shall have full and free liberty, power, and authority to give, dispose, will, or devise to any person or persons, except bodies politic and corporate, by his last will and testament in writing, or otherwise by any act or acts lawfully executed in his life by himself solely, or by himself and others jointly, severally, or particularly, or by all those ways or any of them, as much as in him of right is or shall be, all his said manors, lands, tenements, or hereditaments, or any of them, or any rents, commons, or other profits or commodities, out of or to be perceived of the same, or out of any parcel thereof, at his own free will and pleasure." The 29 Car. 2, c. 3, s. 5, enacts that "all devises and bequests of any lands or tenements devisable either by force of the statute of wills or by this statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and SIGNED by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four such credible witnesses, (i) or else they shall be utterly void and of none effect." And then section 6 enacts that "no such devise in writing, nor any clause thereof, shall at any time be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence and by his directions and consent; but all devises and bequests of lands and tenements shall remain and continue in force until (i) It will be observed that there is a material difference in the words of the 5th and of the 6th section, as regards the circumstances attending the signature of the testator. The sixth section expressly requires that the testator should sign the revocation in the presence of the THREE witnesses. It may therefore be inferred, notwithstanding the decisions to the contrary presently noticed, that probably the legislature originally intended by the fifth section, that the testator should actually sign his will in the presence of the three witnesses, and the adhering to that requisite would certainly better prevent imposition. Did not the term attest require that the witnesses should see the testator actually sign? The words of the two clauses, however, certainly differ, whatever may have been the intention of the legislature. CHAP. IV. 1. RIGHTS TO REAL the same be burnt, cancelled, torn, or obliterated by the testator or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing PROPERTY. of the devisor, signed in the presence of three or four witnesses, declaring the same." (j) statutes. The operation of these acts may be conveniently considered Arrangement of with reference, 1st, to the thing or property that may be de- decisions on the vised under them; 2dly, the tenure, estate, or interest therein, and the operation of certain terms; 3dly, the form and requisites of a will, and the testator's signature thereof; 4thly, the attestation by witnesses; 5thly, construction, operation, and pleading of a will, with the consequences of a devise to an heir, and of revocations, and other points. 1stly. With respect to the property or thing that may be devised under these statutes, the terms of the acts are very extensive, expressly including manors, (k) lands, (1) tenements, (m) rents, (1) and other hereditaments, (o) the comprehensive import of which terms we have considered at large. The terms include every thing corporeal and incorporeal, the particulars of which have been enumerated. (p) The terms being so comprehensive, it would seem scarcely necessary to refer to decisions. It has been held, that an advowson in gross (q) and tithes (~) may be devised, but that certain franchises cannot. (s) In describing in a will the thing intended to be devised, it is expedient to specify and enumerate the principal messuages, buildings, farms, land, or other property, by the usual and most appropriate description, and then, after the words "with the appurtenances," to add "and all lands, tenements, and hereditaments, commons, ways, watercourses, rights, easements, and advantages whatsoever, now or heretofore usually used, occupied, or enjoyed with the same, whether as part or parcel thereof, or for the better or more conveniently occupying or enjoying the same;" by which means all discussion and litigation respecting the extent of the property intended to be devised, and whether or not a way or other easement were strictly appurtenant, or had not been extinguished as such by unity of seisin or otherwise, would (j) This clause clearly requires that the testator shall sign such revocation in the presence of the three witnesses, and quære, whether that was not the real intent in the prior clause in making a will? See ante, 352, n. (i); 1 Saund. 277, b., in notes. (k) Ante, 166. VOL. I. (1) Ante, 179. (n) Ante, 225 to 229. (p) Ante, 145 to 229. (4) Cro. Eliz. 359; 2 Bla. R. 1249. Id. ibid. ; 3 Çoke, 32, b. AA. 1. What things devisable, and by what words they pass. |