scent from the ancestor.

upon surrender

In admittances upon surrender of another, the lord is to by the former

no intent reputed as owner, but wholly as an instrument; tenant;

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 upon a de- And, as in admittances upon surrenders, so in admittances

upon descents by the death of the ancestor, the lord is used [ *371 ] 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 (s). Difference be- Admittances, however, upon surrender, differ from ad

mittances

upon descent (14) in this, that by surrender no

tween admittances upon sur.

(r) 4 Rep. 27. Co. Litt. 59.

(s) 4 Rep. 27. 1 Rep. 140.

(14) An heir-at-law, before admit- render has been made, may devise his tance, may do many things which a de- equitable interest in, or, more properly visee cannot do before admittance. But, speaking, his right to, the copyhold. it seems, the privileges of a purchaser (Wainwright v. Elwell, 1 Mad. 632.635. before admittance are, in some respects, Davies v. Beversham, 2 Freem. 157. more extensive than those of an heir-at- Greenhill v. Greenhill, 2 Vern. 680. law. Neither a devisee, nor even an Smith v. Triggs, 1 Str. 492. Doe v. heir-at-law, can devise a copyhold be- Vernon, 8 East, 22. Wilson v. Weddell, fore admittance thereto; but a pur- Yelv. 145). chaser of a copyhold, to whom a sur

8

claim by custom a renewal of the grant copyholds grantable for lives only, if for fresh lives upon the payment of a the fine is not certain, are like leases reasonable fine, i.e. a fine of two years' of freehold lands for lives, and renewavalue, as in the case of a copyhold of ble only upon the best terms the party inheritance. No custom to renew a can make. Warton v. King, Anstr. 659.” copyhold for lives is legal, unless the [See ante, p. 98, note (34) to chapter fine has been certain and unvaried, for 6.-Ep.]

thing is vested in cestuy que use, before admittance, no render, and more than in voluntary admittances; but upon descent the upon descent. 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 (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. 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 (u),

*372 ] “I assure myself, if it were in the election of the heir to “ be admitted or not to be admitted, he would be best con“ tented without admittance; but the custom in every ma“nor 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.” (15). (t) 4 Rep. 23.

(u) Copyh. s. 41.

(15) See ante, p. 98, notes (33) and (34) to chapter 6.

† Mr. Christian observes, that “co- donis, and cannot be intailed without pyholds are not within the statute de a special custom within the manor; and

where such a custom exists, there may would amount to a perpetuity. 2 Ves. also be a custom to bar the estate-tail, 601, Yet in some manors the custom by a recovery suffered in the lord's of barring by one mode, is co-existent court; but if no such custom appears with the custom of bar by the other. of barring by recovery, the intail may 2 Bl. Rep. 944. be barred by surrender, or otherwise it

373

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

devise.

now

vises.

The last method of conveying real property is, by devise, of alienation by 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 founded. It seems sufficiently clear, that, before the conquest, lands Effects of the were devisable by will (a). But, upon the introduction of doctrine of dethe 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 (6). 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 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 [ *374 ]

(a) Wright of Tenures, 172.

(6) See pag. 57. (c) Tacit, de mor. Germ. c. 21.

see.

art and management he may frequently become their devi

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: which had an admirable effect in keeping up equality, and preventing the accumulations 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 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. The feodal re

However this be, we find that, by the common law of straint thereon. England since the conquest, no estate, greater than for term

of years, could be disposed of by testament (c); except only in Kent (1), and in some antient burghs, and a few parti(d) Plutarch, in vita Solon.

(e) 2 Inst. 7.

(1) See ante, p. 84, note (14) to chapter 6.