never truly presented; the presentment, as being false; and the admittance, as being founded on such untrue presentment. If a man surrenders out of court, and dies before presentment, and presentment be made after his death, according to the custom, this is sufficient. So too, if cestuy que use dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The same law is, if those, into whose hands the surrender is made, die before presentment; for, upon sufficient proof in court that such a surrender was made, the lord shall be compelled to admit accordingly. And if the steward, the tenants, or others into whose hands such surrender is made, refuse or neglect to bring it in to be presented, upon a petition preferred to the lord in his court baron the party grieved shall find remedy. But if the lord will not do him right and justice, he may sue both the lord, and them that took the surrender, in chancery, and shall there find relief.1

[370] 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 fee-simple, 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 antient custom precisely in every point, k Co. Litt. 62. 1 Co. Copyh. 40.

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 antient rent, nor make any the minutest variation in other respects: nor is the tenant's estate, so granted, subject to any charges or incum-brances by the lord."

In admittances upon surrender of another, the lord is: to no intent reputed as owner, but wholly as an in-. strument: 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."

And, as in admittances upon surrenders, so in admittances upon descents by the death of the ancestor, the lord [371] 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.p

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 de-. o 4 Rep. 27. Co. Litt. 59. p 4 Rep. 27. 1 Rep. 140.

m Co. Cop. 8 41.

n

8 Rep. 63.

2 BLACKST.-48.

scent 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. He may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground; 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. For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to intitle him to his fine, and not so much necessary for the strengthening and compleating 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 [372] the words of sir Edward Coke,r "I assure myself, if it were in the election of the heir to be admitted or not to be admitted, he would be best contented without admittance; 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."

q 4 Rep. 23.

r Copyh. 41

CHAPTER THE TWENTY-THIRD.

OF ALIENATION BY DEVISE. [See note 69, page 579.]

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.

a

*It seems sufficiently clear, that, before the conquest, lands were devisable by will. 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. And some have questioned, whether this restraint (which we may trace even from the antient 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 ballance of property, and prevented one man from growing too big or powerful for his neighbors; since it rarely happens, [374] that the same man is heir to many others, though by art and management he may frequently become their devisee. Thus the antient 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: a Wright of tenures. 172.

b See pag. 57.

c

Tacit. de mor. Germ. c. 21. 8 Previously spelt, "enquire."

**Quoted, 9 Cowen, 510; 18 Am. Dec. 529. Cited, 23 Miss. 253; 57

Am. Dec. 140.

which had an admirable effect in keeping up equality and preventing the accumulations of estates. But when Solond 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 Solon'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 severely felt even in the feodal times: but it should always be strongly discouraged in a commercial country, whose welfare depends on the number 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 disposed of by testament; e† except only in Kent, and in some antient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted. And though the feo

d Plutarch. in vita Solon. e 2 Inst. 7.

f Litt. 167. 1 Inst. 111.

*Cited, 36 Cal. 332.

+ Cited, 49 Vt. 245; 24 Am. Rep. 135.