Equitable estate tail may be barred by deed.
Equitable estate cannot be surrendered.
(q) Ante, p. 157 et seq.
(r) See ante, pp. 214, 215.
(s) See ante, pp. 47, 51 et seq.
(t) Stat. 3 & 4 Will. IV. c. 74, s. 54.
(u) Sect. 53. It has recently been decided, contrary to the prevalent impression, that the entry must be made within six calendar months. Honeywood v. Forster, M. R., 9 W. E. 855; 30 Beav. 1; Gibbons v. Snape, 32 Beav. 130.
(x) Stat. 3 & 4 Will. IV. c. 74, s. 53.
(y) 1 Scriv. Cop. 262.
Tenant of equitable estate tail may bar entail by surrender.
Husband and wife may surrender wife's equitable estate.
(z) Stat. 3 & 4 Will. IV. c. 74, s. 50.
(a) Sec ante, p. 347.
(b) stat. 3 & 4 Will, IV.c 74, s. 90. (c) Bee ante, p. 360, (d) Stat. 3 & 4 Will. IV. c. 74, s. 77. See ante, p, 222.
Copyhold estates admit of remainders analogous to those which may be created in estates of freehold (e). And when a surrender or devise is made to the use of any person for life, with remainders over, the admission of the tenant for life is the admission of all persons having estates in remainder, unless there be in the manor a special custom to the contrary (f). A vested estate in remainder is capable of alienation by the usual mode of surrender and admittance. Contingent remainders of copyholds have always had this advantage, that they had never been liable to destruction by the sudden determination of the particular estate on which they depend. The freehold, vested in the lord, is said to be the means of preserving such remainders, until the time when the particular estate would regularly have expired (g). In this respect they resemble contingent remainders of equitable or trust estates of freeholds, as to which we have seen, that the legal seisin, vested in the trustees, preserves the remainders from destruction (h); but if the contingent remainder be not ready to come into possession the moment the particular estate would naturally and regularly have expired, such contingent remainder will fail altogether (i).
Executory devises of copyholds, similar in all respects to executory devises of freeholds, have long been permitted (k). And directions to executors to sell the copyhold lands of their testator (which directions, we have seen (l), give rise to executory interests) are still in common use; for, when such a direction is given, the executors, taking only a power and no estate, have no occasion to be admitted; and if they can sell before the lord has had time to hold his three Customary Courts for making proclamation in order to seize the land quousque (m), the purchaser from them will alone require admittance by virtue of his executory estate which arose on the sale. By this means the expense of only one admittance is incurred; whereas, had the lands been devised to the executors in trust to sell, they must first have been admitted under the will, and then have surrendered to the purchaser, who again must have been admitted under their sur-render. And in a recent case, where a testator devised copyholds to such uses as his trustees should appoint, and subject thereto to the use of his trustees, their heirs and assigns for ever, with a direction that they should sell his copyholds, it was decided that the trustees could make a good title without being admitted, even although the lord had in the meantime seized the lands quousque for want of a tenant (n). But it has recently been decided that the lord of a manor is not bound to accept a surrender of copyholds inter vivos, to such uses as the surrenderee shall appoint, and, in default of appointment, to the use of the surrenderee, his heirs and assigns (o). This decision is in accordance with the old rule, which construed surrenders of copyholds in the same manner as a conveyance of freeholds inter vivos at common law (p).
(e) See ante, pp. 239, 252.
(f) 1 Watk. Cop. 276; Doe d. Winder v. Lames, 7 Ad. & E. 195; Smithy. Glasscock, 4 C. B., N. S. 357; Rand field v. Rand-field, 1 Drew. & S. 310. See, however, as to the reversioner, Reg. v. Lady of the Manor of Dallingham, 8 Ad. & E. 858.
(g) Fearne, Cont. Rem. 319; 1 Watk. Cop. 196; 1 Scriv. Cop. 477; Pickersgill v. Grey, 30 Beav. 352.
(h) Ante, p. 275.
(i) Gilb. Ten. 266; Fearne, Cont. Rem. 320.
(k) 1 Watk. Cop. 210.
Lord not bound to accept a surrender inter vivos to shifting uses.
(l) Ante, p. 299. The stat. 21 Hen. VIII. c. 4, applies to copyhold-; 'Peppercorns. Wayman, 5 De Gex & S. 230j ante, p. 300.
(m) See ante, p. 361.
(n) Glass v. Richardson, 9 Hare, 698; 2 De Gex, M. & G. 658; and see The' Queen v. Cor. bett, 1 E. & B. 836; The Queenv. Wilson, 3 Best & Smith, 201.
(o) Flack v. The Master, Fellows and Scholars of Downing College, C. P., 17 Jur. 697; 13 C. B. 945.
(p) 1 Walk. Cop. 108, 110; l Scriv. Cop. 178.
If, however, the lord should accept such a surrender, he will be bound by it, and must admit the appointee under the power of appointment, in case such power should be exercised (q).
With regard to the interest possessed by husband and wife in each other's copyhold lands, although the husband has necessarily the whole income of his wife's land during the coverture, yet a special custom appears to be necessary to entitle him to be tenant by curtesy (r). A special custom also is required to entitle the wife to any interest in the lands of her husband after his decease. where such custom exists, the wife's interest is termed her freebench; and it generally consists of a life interest in one divided third part of the lands, or sometimes of a life interest in the entirety (s); and, like dower under the old law, freebench is paramount to the husband's debts (t). Freebench, however, usually differs from the ancient right of dower in this important particular, that whereas the widow was entitled to dower of all freehold lands of which her husband was solely seised at any time during the coverture (u), the right to freebench does not usually attach until the actual decease of the husband (x). Freebench, therefore, is in general no impediment to the free alienation by the husband of his copyhold lands, without his wife's concurrence. To this rule the important manor of Cheltenham forms an exception; for, by the custom of this manor, as settled by act of parliament, the freebench of widows attaches, like the ancient right of dower out of freeholds, on all the copyhold lands of inheritance of which their husbands were tenants at any time during the coverture (y). The Dower act. act for the amendment of the law relating to dower (z) does not extend to freebench (a).
Husband and wife.
Manor of Cheltenham is an exception.
(q) The King v. The Lord of the Manor of Oundle, 1 Ad. & E. 283; Boddingtonv.Abernethy, 5 B. & C. 776; 9 Dow. & Ry. 626; 1 Scriv. Cop. 226, 229; Eddle ston v. Collins, 3 De Gex, M. & G. 1.
(r) 2 Watk. Cop. 71. See as to freeholds, ante, p. 218.
(s) 1 Scriv. Cop. 89.
(t) Spyer v. Hyatt, 20 Beav. 621.
(u) Ante, p. 223.
(x) 2 Watk. Cop. 73.
(y) Doe d. Rddell v. Gwin-nell, 1 Q. B. 682.
(z) Stat.3&4 Will. IV. c. 105; ante, p. 227.
(a) Smith v. Adams, 18 Beav. 499; 5 De Gex, M. & G. 712.