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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:m nor is the tenant's estate, so granted, subject to any charges or incumbrances by the lord."

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."

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

m Co. Cop. % 41.


8 Rep. 63.

2 BLACKST. - 48.

o 4 Rep. 27. Co. Litt. 59.
p 4 Rep. 27.

1 Rep. 140.

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 hoinage 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 [872] the words of sir Edward Coke, "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


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.

*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; † 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*Cited, 36 Cal. 332.


Plutarch. in vita Solon.

e 2 Inst. 7.

f Litt. 167. 1 Inst. 111.

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

dal restraint on alienations [375] by deed vanished very. early, yet this on wills continued for some centuries after; from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious. Besides, in devises there was wanting that general notoriety, and public designation 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 uses, as a thing distinct from the land, uses began to be devised very frequently, and the devisee of the use could in chancery compel it's execution. For it is observed by Gilbert, that, as the popish clergy then generally sate in 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 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 statute 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, infants, idiots, and persons of nonsane memory) might by will and testament in writing devise to any other person,† but not to bodies

g Glanv. 1. 7. c. 1.

h Plowd. 414.

jon devises. 7.

i 27 Hen. VIII. c. 10. See Dyer. 143.
9 Ninth edition reads, "person, except."
*Cited, 9 Cowen, 523; 18 Am. Dec. 539.
t-t Quoted, 23 Miss. 253; 57 Am. Dec. 141,

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