3. Admittance is the last stage, or perfection, of copyhold assurances. " And this is of three sorts: first, an admittance upon a voluntary grant from the lord; secondly, an admittance upon surrender by the former tenant; and, thirdly, an admittance upon a descent from the ancestor.

In admittances, even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to him, the lord is considered as an instrument. For though it is in his power to keep the lands in his own hands; or to dispose of them at his pleasure, by granting an absolute feesimple, a freehold, or a chattel interest therein; and quite to change their nature from copyhold to socage tenure, so that he may well be reputed their absolute owner and lord; yet if he will still continue to dispose of them as copyhold, he is bound to observe the ancient custom precisely in every point, and can neither in tenure nor estate introduce any kind of alteration; for that were to create a new copyhold: wherefore in this respect the law accounts him custom's instrument. For if a copyhold for life falls into the lord's hands, by the tenant's death, though the lord may destroy the tenure and enfranchise the land, yet if he grants it out again by copy, he can neither add to nor diminish the ancient rent, nor make any the minutest variation in other respects: (p) nor is the tenant's estate, so granted, subject to any charges or incumbrances by the lord. (9)

In admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an instrument; and the tenant admitted shall likewise be subject to no charges or incumbrances of the lord; for his claim to the estate is solely under him that made the surrender. (r)

And, as in admittances upon surrenders, so in admittances upon [371] descents by the death of the ancestor, the lord is used as a mere instrument; and, as no manner of interest passes into him by the surrender or the death of his tenant, so no interest passes out of him by the act of admittance. And therefore neither in the one case nor the other, is any respect had to the quantity or quality of the lord's estate in the manor. For whether he be tenant in fee or for years, whether he be in possession by right or by wrong, it is not material; since the admittances made by him shall not be impeached on account of his title, because they are judicial, or rather ministerial acts, which every lord in possession is bound to perform. (3)

Admittances, however, upon surrender, differ from admittances upon descent in this, that by surrender nothing is vested in cestuy que use before admittance, no more than in voluntary admittances; but upon descent the heir is tenant by copy immediately upon the death of his ancestor: not indeed to all intents and purposes, for he cannot be sworn on the homage nor maintain an action in the lord's court as tenant; but to most intents the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger.

p Co. Copyh. § 41.

q8 Rep. 65.
s 4 Rep. 27. 1 Rep. 140.

r4 Rep. 27. Co. Litt. 59.

(11) The admittance of the particular tenant is the admittance of the remainder-man, but the latter may be admitted by himself. 1 Saund. 147. a. n. (3) (4). It relates when made to the time of surrender. 1T. R. 600. 2 Saund. 422. c. n. 2. A surrenderee cannot forfeit for felony before admittance, for till then the estate is in the surrenderor. 2 Saund. 422. c. n. 2. The lord's grantee has title without it. 2 B. & A. 453. 2 Saund. 422. c. If the surrenderee dies before admittance, his heir is entitled to it, and the widow to free-bench. 2 Saund. 422. d. One effect of admittance is, that a copyholder after it, is estopped in an action by the lord for a forfeiture, from shewing that the legal estate was not in the lord at the time of admittance. 5 B. & A. 626, 1 Dowl. & R. 243. Chitty.

He may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground; (t) nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands of the lord to whatever use he pleases. 12 For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine, and not so much necessary for the strengthening and completing the heir's title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine. But

to this we may reply in the words of sir Edward Coke, (v) “I as[372] "sure myself, if it were in the election of the heir to be admitted or

"not to be admitted, he would be best contented without admit"tance; but the custom in every manor is in this point compulsory. For, "either upon pain of forfeiture of their copyhold, or of incurring some great "penalty, the heirs of copyholders are inforced, in every manor, to come "into court and be admitted according to the custom, within a short time "after notice given of their ancestor's decease."13

(12) It has been held that the heir having as complete a title without admittance as with it, against all the world but the lord, the court of king's bench will not grant a mandamus to compel the lord to admit him. 2 T. R. 197. But in a more recent case the court granted a mandamus in favour of an heir. 3 Bar. & Cres. 172. 4 Dowl, & R. 492. S. C. If the lord refuse to admit, the surrenderee cannot have an action on the case against him, but may compel him in chancery, Cro. Jac. 368. or by mandamus, 2 T. R. 484. And the lord has no right to the Ene till after admittance. Ib. 1 Wat. on Cop. 1st ed 263. 287. 1 East R. 632. Scriv. on Cop 405, 6. But the surrenderor may bring an action for refusal to admit. 3 Bulst 217. Chitty. (13) But a person claiming to be admitted as heir, need not tender himself for admittance at the lord's court, if he has been refused by the steward out of court. 2 M. & S. 87. A lord of the manor cannot seize a copyhold estate as forfeited pro defectu tenentis without a custom; and where he did so, even after three proclamations for the heir to come in, and granted it in fee to another, it was held an absolute seizure, not being warranted by custom, and could not be set up by the lord as a seizure quousque. 3 T. R. 162. A copyholder in fee, who paid a fine on his original admission, surrendered to his own use for life, without payment of a fine, remainder to his wife for life, remainder over, and by the custom a remainder-man, must, on death of a tenant for life, be admitted and pay a fine, it was held that such a custom is good, and if not observed, the lord, after proclamations and presentment by the jury, may seize quousque, the tenant comes in and maintain ejectment in the mean time, and the proclamations being for any person to come in, &c. and the presentment being general, are good, though the person next is remainder were known and named in the surrender. 5 East R. 522.

With respect to the fine is general, see Watkins on Copyhold, 2 Saund. index, Copyhold. A custom to renew copy holds for lives can only be on payment of certain fines. 3 Anst. 659. 663. n. A. covenants with B. to assign and surrender his copyhold to him, which covenant is afterwards presented by the homage, but the lord has no right to a fine thereon; and therefore if B. assign to C. and A. surrenders to C. only one fine is payable, and that by C. ST. R. 484. A covenant to do all necessary acts and perfect a title at the cost of the seller, is not broken by his non-payment of the fine upon admission of the purchaser, the title being complete upon the admission of the tenant, and the fine is not due till after. 1 East R. 632. "Where an assessment of a copyhold fine was entered on the court rolls, as of 1001., but the lord, out of favour, reduced it to 60%. and the lord sued for the fine, and the jury found the annual value 304. giving a verdic! for 601. the two years' value, the lord cannot retain the verdict, but must make a new assessment, the old one, notwithstanding the remitter, being in law as of 1001. S B. & P. 346. Upon the admission of the same party to several copyholds, the steward cannot in general, and without a special custom, charge full admission fees for each. 2 Marsh. 84. 6 Taunt. 425. Chitty

CHAP. XXIII.

OF ALIENATION BY DEVISE.'

THE last method of conveying real property, is, by devise, or disposition contained in a man's last will and testament. And, in considering this subject, I shall not at present inquire into the nature of wills and testaments, which are more properly the instruments to convey personal estates; but only into the original and antiquity of devising real estates by will, and the construction of the several statutes upon which that power is now founded.

It seems sufficiently clear, that, before the conquest, lands were devisable by will. (a) But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of non-alienation without the consent of the lord. (b) And some have questioned whether this restraint (which we may trace even from the ancient Germans) (c) was not founded upon truer principles of policy, than the power of wantonly disinheriting the heir by will, and transferring the estate, through the dotage or caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbours; since it rarely happens, that the same man is heir to many others, though by art and management he may frequently be- [374] come their devisee. Thus the ancient law of the Athenians directed that the estate of the deceased should always descend to his children; or, on failure of lineal descendants, should go to the collateral relations: which had an admirable effect in keeping up equality, and preventing the accumulation of estates. But when Solon (d) made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others: which, by a natural progression, first produced popular tumults and dissensions: and these at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now seem hard, on account of some abuses, (which are the natural consequence of free agency, when coupled with human infirmity), to debar the owner of lands from distributing them after his death as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar propriety; by preventing the very evil which resulted from Solón's institution, the too great accumulation of property; which is the natural consequence of our doctrine of succession by primogeniture, to which the Athenians were strangers. Of this accumulation the ill effects were se

e Tacit de mor. Germ c. 21.

d Plutarch. in vita Solon.

(1) See in general, Com. Dig. Devise; Chancery, 3 A. 1, &c.; 3 Y. 1, &c.; Condition, A. 4. : Bac. Ab. Wills and Testaments; Vin. Ab. Devise; Cruise Dig. tit. Devise; 2 Saund., index, titles, Devise, Devisee, Wills; Preston on Estates, title, Wills.

YOL. I.

85

verely felt even in the feodal times: but it should always be strongly & couraged in a commercial country, whose welfare depends on the numbe of moderate fortunes engaged in the extension of trade.

However this be, we find that, by the common law of England since the conquest, no estate, greater than for term of years, could be dispoerd of by testament; (e) except only in Kent, and in some ancient burghs, and

a few particular manors, where their Saxon immunities by speci [375] indulgence subsisted. (f) And though the feodal restraint on alien

tions by deed vanished very early, yet this on wills continued for som centuries after: from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious. (g) Besides, i devises there was wanting that general notoriety, and public designa tion of the successor, which in descents is apparent to the neighbourhood, and which the simplicity of the common law always required in every transfer and new acquisition of property.

But when ecclesiastical ingenuity had invented the doctrine of usess a thing distinct from the land, uses began to be devised very frequently, (i) and the devisee of the use could in chancery compel its execution. For is observed by Gilbert, (i) that, as the popish clergy then generally sate i the court of chancery, they considered that men are most liberal when they can enjoy their possessions no longer and therefore at their death would choose to dispose of them to those, who, according to the superstition of the times, could intercede for their happiness in another world. But, when the statute of uses (j) had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable: which might have occasioned a great revolution in the law of devises, had not the sta tute of wills been made about five years after, viz. 32 Hen. VIII. c. 1. explained by 34 Hen. VIII. c. 5. which enacted, that all persons being seised in fee-simple (except feme-coverts, 3 infants, idiots, and persons of non-sane memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles the Second, amounts to the whole of their landed property, except their copyhold tene

ments.

Corporations were excepted in these statutes, to prevent the extension of gifts in mortmain; but now, by construction of the statute 43 Eliz. c. 4 it is held, that a devise to a corporation for a charitable use is valid, as ope rating in the nature of an appointment, rather than of a bequest, [376] And indeed the piety of the judges hath formerly carried them great lengths in supporting such charitable uses; (k) it being held, that the

e 2 Inst. 7.

f Litt. § 167. 1 Inst. 111.

g Glanv. L. 7. c. 8.

h Plowd. 414. iOn devises, 7. j27 Hen. VIII. c. 10. See Dyer. 143. k Ch. Free. 272.

(2) As copyholders and customary tenants, whose interest passes by surrender, are not sesed in fee-simple, and do not hold their lands in socage, it follows that they cannot make a devise an der this statute, nor need the requisites of it be observed, 7 East, 299 & 322. unless the terms of the surrender require the will to be signed. Id. ibid. 2 P. W. 258. 2 Atk. 37.

(3) A feme-covert, where lands are conveyed to trustees, may have the power of appointing the disposition of lands held in trust for her after her death, which appointment must be execut ed like the will of a feme-sole. 2 Ves. 610. 1 Bro. 99. And it has been determined by the house of lords, that the appointment of a married woman is effectual against the heir at law; though it depends only upon an agreement of her husband before marriage, without any courey ance of the estate to trustees. 2 Ves. Sen. 191. 6 Bro. P. C. 156. 2 Eden. 259. 1 Bro, P. C. 486 S. C. Amb. 565. 2 Roper's Hus. & Wife, 180. Christion.

statute of Elizabeth, which favours appointments to charities, supersedes and repeals all former statutes, (l) and supplies all defects of assurances: (m) and therefore not only a devise to a corporation, but a devise by a copyhold tenant without surrendering to the use of his will, (n) and a devise (nay even a settlement) by tenant in tail without either fine or recovery, if made to a charitable use, are good by way of appointment. (o)

With regard to devises in general, experience soon shewed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance; for so loose was the construction made upon this act by the courts of law, that bare notes in the hand-writing of another person were allowed to be good wills within the statute. (p) To remedy which, the statute of frauds and perjuries, 29 Car. II. c. 3. directs, that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction; and be subscribed in his presence, by three or four credible witnesses. And a solemnity nearly similar is requisite for revoking a devise by writing; though the same may also be revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent: as likewise impliedly, by such a great and entire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child. (9) 5

n Moor 890.

4

I Gilb. Rep. 45. 1 P. Wms. 248. m Duke's charit. uses, 84. p Dyer, 72. Cro. Eliz. 100. q Christopher, v. Christopher, Schacch. 6 Jul. 1771. by Wimot, de Grey and Parker. See pag. 502.

o 2 Vern. 453. Ch. Prec. 16. Spragge v. Stone, at the Cockpit, 27 Mar. 1773,

(4) With respect to revocations in general, see 1 Saund. 277 to 279. d. Where a testator being angry with one of his devisees tore his will into four pieces, but was prevented from further tearing it, partly by force and partly by entreaty, and afterwards becoming calm expressed his satisfaction that no material part was injured, and that the will was no worse, the court held that it had been properly left to the jury to say whether the testator had perfected his intention of cancelling the will, or whether he was stopped in ruedio; and the jury having found the latter, the court refused to disturb the verdict. 3 B. & A. 489. But where the testator threw his will into the fire, out of which it was snatched by a by-stander and preserved without the testator's knowledge, the will was held to be cancelled. 2 Bla. R. 1043. Chitty.

(5) Marriage and the birth of a posthumous child amount to a revocation. 5 T. R. 49. But the subsequent birth of a child, where the will is made after marriage, is not of itself sufficient. 5 T. R. 51. n. 4 M. & S. 10. 5 Ves. J. 656. In a case where a testator had devised his real estate to a woman with whom he cohabited, and to her children, he afterwards married her and had children by her, it was held these circumstances did not amount to a revocation of the will. Lord Ellenborough in his judgment says, "the doctrine of implied or presumptive revocation seems to stand upon a better foundation of reason, as it is put by lord Kenyon, in Doe v. Lancashire, 5 T. R. 58. namely, as being a tacit condition annexed to the will when made, that it should not take effect, if there should be a total change in the situation of the testator's family, than on the ground of any presumed alteration of intention; which alteration of intention should seem in legal reasoning not very material, unless it be considered as sufficient to found a presumption in fact, that an actual revocation has followed thereupon. But, upon whatever grounds this rule of revocation may be supposed to stand, it is on all bands allowed to apply only in cases where the wife and children, the new objects of duty, are wholly unprovided for, and where there is an entire disposition of the whole estate to their exclusion and prejudice. This, however, cannot be said to be the case, where the same persons, who, after the making of the will, stand in the legal relation of wife and children, were before specifically contemplated and provided for by the testator, though under a different character and denomination." 2 East, 530. See 5 Ves. Jun. 656. Where two wills are found in the possession of the testator, to invalidate the first the second should expressly revoke, or be clearly incompatible with the first devise, for no subsequent devise will revoke a prior one, unless it apply to the same subject matter. 1 P. Wms. 345. 7 Bro. P. C. 344. Cowper, 87. A devise of real property is not revoked by the bankruptcy of the devisor. The master of the rolls said, "from the moment the debts are paid, the assignees are mere trustees for the bankrupt, and can be called upon to convey to him." In this