(v) Co.Litt.3b; 2 Black. Com. 347; Bac. Abr. tit. Bastardy (B).
(w) By stat. 33 & 34 Vict. c. 23; ante, p. 56.
(x) Stat. 54 Geo. TIT. c. 145; 9 Geo. IV. c. 31, s. 2, repealed by stat. 24 & 25 Vict. c. 95, and re-enacted by stat. 24 & 25 Vict, c. 100, s. 8.
(y) Stat. 26 Hen. VIII. c. 13, s. 5; 5 & 6 Edw. VI. c. 11, s. 9;
39 Geo. III. c. 93; 4 Black. Com. 381.
(z) 2 Black. Com. 245; 4 Black. Com. 380,381; Swinburne, part 2, sect. 13; Bac. Abr. tit. Wills and Testaments (B).
(a) 4 Black. Com. 385.
(b) Lands escheated or forfeited to the crown are frequently restored to the families of the persons to whom such lands belonged there should be any lord of a manor, or other person, who could prove that the estate so terminated was held of him, he, and not the crown, would be entitled (c). In former times, there were many such mesne or intermediate lords; every baron, according to the feudal system, had his tenants, and they again had theirs. The alienation of lands appears, indeed, as we have seen(d), to have most generally, if not universally, proceeded on this system of subinfeudation. But now the fruits and incidents of tenure of estates in fee simple are so few and rare, that many such estates are considered as held directly of the crown, for want of proof as to who is the intermediate lord; and the difficulty of proof is increased by the fact before mentioned, that, since the statute of Quia emptores, passed in the reign of Edward I. (e), it has not been lawful to create a tenure of an estate in fee simple; so that every lordship or seignory of an estate in fee simple bears date at least as far back as that reign: to this rule the few seignories, which may have been subsequently created by the king's tenants in capite, form the only exception (f).
A small occasional quit rent, with its accompanying relief, - suit of the Court Baron, if any such exists, - an oath of fealty never exacted, - and a right of escheat seldom accruing, - are now, it appears, therefore, the ordinarv incidents of the tenure of an estate in fee simple. There are, however, a few varieties in this pursuant to stat. 39 & 40 Geo. III. c. 88, s. 12, explained and amended by stats. 47 Geo. III. sess. 2, c. 24, and 59 Geo. III. c. 94, and extended to forfeited leaseholds by stat. 6 Geo. IV. c. 17.
(c) Doe d. Hayne and Hit Majesty v. Red/em, 12 East, 96.
(d) Ante, pp. 37, 58.
(e) 18 Edw. I. c. 1; ante, pp. 61, 114.
(f) By stat. 13 & 14 Vict, c. 60, lands vested in any person upon any trust, or by way of mortgage, are exempted from escheat. This act repeals a former statute, 4 & 5 Will. IV. c. 23, to the same effect.
Next, as to such varieties of tenure as relate to places : - These are principally the tenures of gavelkind, borough-English, and ancient demesne. The tenure of gavelkind, or as it has been more correctly styled (k), socage tenure, subject to the custom of gavelkind, prevails chiefly in the county of Kent, in which county all estates of inheritance in land (l) are presumed to be holden by this tenure until the contrary is shown (m). The most remarkable feature of this kind of tenure is the descent of the estate, in case of intestacy, not to the eldest son, but to all the sons in equal shares (n), and so to brothers and other collateral relations, on failure of nearer heirs (o). It is also a remarkable peculiarity of this custom, that every tenant of an estate of freehold (except of course an estate tail) is able, at the early age of fifteen years, to dispose of his estate by feoffment (p), the ancient method of conveyance, to be hereafter explained. There is also no escheat of gavelkind lands upon a conviction of murder (q); and some other peculiarities of less importance belong to this tenure (r). The custom of gavelkind is generally supposed to have been a part of the ancient Saxon law, preserved by the struggles of the men of Kent at the time of the Norman conquest; and it is still held in high esteem by the inhabitants, so that whilst some lands in the county, having been originally held by knights' service, are not within the custom (s), and others have been disgavelled, or freed from the custom, by various acts of parliament (t), any attempt entirely to extinguish the peculiarities of this tenure has uniformly been resisted (u). There are a few places, in other parts of the kingdom, where the course of descent follows the custom of gavelkind (x); but it may be doubted whether the tenure of gavelkind, with all its accompanying peculiarities, is to be found elsewhere than in the county of Kent (y).
(g) Litt. s. 153.
(h) 12 Car. II. c. 24; ante, p. 118.
(i) Litt. s. 159.
(j) Litt. s. 160; 2 Black. Com. 81.
(k) Third Report of Real Property Commissioners, p. 7.
(l) Including estates tail, Litt. s. 265; Robinson on Gavelkind, 51, 94 (64, 119, 3rd ed.).
(m) Robinson on Gavelkind, 44 (54, 3rd ed.).
(n) Every son is as great a gentleman as the eldest son is; Litt. s. 210.
(0) Rob. Gav. 92; 3rd Rep. of Real Property Commissioners, p. 9; Crump d. Woolley v. Norwood, 7 Taunt. 362; Hook v. Hook, 1 Hemming & Miller, 43; in oppo-sitiontoBac. Abr.tit. Descent, (D), citing Co. Litt. 140 a.
(p) Rob. Gar. 193 (248, 3rd ed.), 217 (277, 3rd ed.); 2 Black. Com. 84; Sandys' Consuetudines Kanciae, p. 166. See stat. 8 & 9
Virt. C. 106, 8. 3.
(q) Bob. Gav. 226 (228, 3rd ed.). (r) The husband is tenant by courtesy of a moiety only of his deceased wife's land, until he marries again, whether there were issue born alive or not; the widow also is dowable of a moiety instead of a third, and during widowhood and chastity only; estates in fee simple were devisable by will, before the statute was passed empowering the devise of such estates; and some other ancient privileges, now obsolete, were attached to this tenure. See Robinson on Gavelkind, passim; 3rd Report of Real Property Commissioners, p. 9.