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1806.

Doe dem.

Соок

versus DANVERSE

tions were, upon the 25th of February, 1782, pronounced for and established as the only will of Miss . Taylor, by the Prerogative Court; and probate thereof was afterwards granted accordingly. Upon the 21st of June, 1782, the said Thomas Danvers, was adinitted to the premises in question, as heir al law of the said Thomazine Taylor, in the accustomed form above set forth; the rent was paid to the said Thomas Dancers, from the time of Miss Taylor's death until the death of the said Thomas Danvers, in January, 1791, from that time until the expiration of the lease to his son James Danvers, the defendant, who upon bis father's death was admitted the 3d of May, 1791, to the estate, as his heir at law, in the same form as his father was admitted, and, upon the expiration of the lease, made a new demise to Mr. Whiting, under which the latter held and paid rent as tenant to the defendant, at the time of the demise laid in the declaration. The lessor of the plaintiff', Elizabeth, was admitted to the premises in question upon the 1st of December, 1901; to hold, to her and her heirs, of the lord, according to the form of the entry before set forth, her marriage with the other lessor was proved at the trial, and it was also proved that the testatrix bad no relative of the name of Cook, except the lessor of the plaintiff, Elizabeth, and that she was the person who was intended to take by the name of Mary Cook as described in the instructions of the Sd of August, 1780, The question for the opinion of the court is, whether te lessors of the plaintiff are, under the above cira cumstances entitled to recover.

This case was twice argued at great length, first, by Lawes, for the plaintiff, and NOLAN, for the de fendant, in Trinity Term, 1805; and secondly, by the Solicitor-General for the plaintif ; and Marry: 47 for the defendant, in Michaelmas term last.

Cook versus

Lawes, for the plaintiff, on the first argument, con- 1806. tended, that this estate was copyhold, and as such pas- Doe dem. sed under the will of Thomazine Taylor, which, though not attested by three witnesses, was, notwithstanding, a DANYERS. will in writing and within the custom of the manor. After premising that all the cases on the question whether copy hold or freehold, were cited in Doe dem. Smith v. Smith,* and Roe d. Conolly v. Vernon,t in : the former of which the chief difficulty was, that the will was not proved, whereas, in this case, the tes.. tamentary paper was pronounced to be a will; the estate in question constitutes parcel of the manor, which is alone sufficient to constitute a copyhold; all customary freehold being only said to be holden of the manor, Brittel v. Bade, I Crouiher v. Oldfeild. Then, if it be copyhold, it is not necessary that a will of copyhold lands should be attested in the presence of three witnesses ; Attorney-General v. Barnes, Carey v. Askew,ll Attorney-General v. Andrews,** Wagstaffv.Wagstaff,++ and Tuff nelly.Page. It If it is a customary freebold, the legal result will be the same, for that no inore passes by a will than a copyhold, but by the surrender, and is not within the statute of wills, 32 H.VIII. c. 1, s. I. For, although the words of that act are general, yet they are explained by the 34 and 35 H. VIII. c. 5, s. 3, which is to obviate doubts on the words, “estate of inheritance,' and which “ words seised of estates of inheritance' it is declared shall be taken of eslates of fee-simple only.

* This is a case which was very lately argued. It is not reported ; I have notes of it, but it is not deeided. + 5 East. 51, 75, and Smith's Rep. 318. #1 Lord Raym. 43. şi Salk. 364. 1 2 Vern. 597. | 2 Brown's Chan. Ca. 59. ** i Vezey, 225. ++ 2 Peere Il'ill. 258. II 2 Atk. 37.

No. XXXI. N. S. Q9

1806,

Doe dem.

Cook' rersns

DAXTERS.

As to which point the opinion of Lord Hardwicke in
Tuffnell v. Page is express.

Then if this land is copyhold, and passes by the will
there being a surrender to the use of the will, there
has not been such an adverse possession, within any of
the cases upon the statute of limitations, 21. Jac. I.
ç. 16, to oust the lessor of the plaintiff of the remedy
by ejectment; for lie had no right to enler, until after
the outstanding lease granted by Thomazine Taylor
was expired. The title to the possession, till then, con-
tinued in the tenant; he had the legal possession
during the lease, and the lessor of the plaintiff' could
not bring an ejectment during that term ; nor was he
bound to take advantage or condition of the forfeiture,
and re-entry for non-payment of rent. Orrell v.
Maddor. *

· Nouan, contrà, for the defendant, upon the question being put by Lord ELLENBOROUGH, C. J. whether there was a clause of re-entry in that case of Orrell s. Maddor, observed that there was not, and added that if the case should turn upon, whether it was parcel of the manor or not, he hoped his client would not be concluded by it, because the counsel in settling the case had agreed, that it should come before the court upon the facts of the admissions merely, to save expence to the parties, and, that it would be necessary, if it should be determined upon that point, to have the verdict of the jury upon the fact, after producing before them all the court-rolls; upon which

Lord ELLENBOROUGII, C. J. observed, that they would not be driven to that point merely.

He then took tour objections; first, that this is not a copyhold but a customary treehold, and cannot pass

* Runnington un Ijeciment. Appendir, p. 439, last edit.

1806.

DOE

Cook
V TILS
ANVERS.

except by a will attested by three witnesses under the statute of frauds, 29 Car. 11. c. 3, s. 5; or secondly, supposing it not to be within that clause, that it is with. in the other branch of the statute, and the testamenlary. paper must be signed by the parties as a declaration of trust in writing under 29 C. II. c. 3, s. 7; thirdly, supposing it to have passed by the will, the lessor of the plaintiff is without remedy, because he is barred by the statute of limitations, either by the adverse posses. sion of the defendant and his father, and their receipt of rent for more than 20 years since the death of the testatrix, or by not having taken advantage of the right of entry for non-payment of rent ; aud fourthly, that there was a descent which tolled the entry. As to the first point, this is customary freehold, although it is stated to be beld by copy of court-roll, for, to render it copyhold, it must be added that it is holden ad roluntatem domini, Roe dem. Conolly v. Vernon, * Hughes v. Harry,I Gale v. Noble, $ Crouther v. Oldfeild. Then, if the freehold is in the tenant as it is in customary estates, and not in the lord as in copyholds, the first statute of wills as explained by the second, does apply to such customary estates; and this estate passes under the will and not by the surrender merely, and falls within the statute of frauds, and is within the reasons assigned by Lord Hardroicke in Tufnell v. Page. That case has been questioned, although it cannot now be overturned; but it is said that it should not be carried further, and it ouly extends to copyholds. Hussey v: Grills, was a case of a customary freehold, and it was there held, that it did not pass by the will; but the reason assigned there does not exist in this case, for in that case, it was said, there was no custom

Ut supra (where all the casés dre collected.) + Cro. Cäfa

229. Curtk. 32. $ i Sulk. 354. Ambler; 99.9

1806.

Doe dem.

Coor

versus DANVBRS.

to warrant the surrender to the use of the will, nor could the lands be so surrendered. The inference from which is, that they would pass by the will, if there was such a surrender and a custom to surrender; both of which are found in this case. In 11 Mod. 53, it is said where a custom is, that all lands held of a manor shall pass by grant and admittance, yet they may be freehold; Rogers v. Bradley.* As to the second point on the statute of frauds; it is argued, that this is not within the statute of frauds relating to wills, because it is not within the statute of wills. But that statute as explained by the 34 and 35 H. VIII. does not exclude this estate ; for it is an estate of fee-simple of inheritance."

Lord ELLENBOROUGH, C. J. “Can we decide without having it found specially, whether there is a custom of devising by surrender and admittance? There is evidence enough from which a jury might find the custom; but, though it is stated, that it was surrendered by the custom, yer that is not the correct way of finding.

After examining the case, it was thought that, as it was not necessary to have the case stated as particularly as upon a special verdict, there was sufficient from which to infer the existence of the custom, and it was agreed that the court should 'see the court-rolls, if from them it should appear that the inference could be repelled.”

Nolan. “ Though it cannot now be contended that a will of copy holds, qua will, should be attested by three witnesses under the statute of frauds, yet the surrender to the use of the will creates a use or confidence of which the will, afterwards, declares the use, or amounts to an appointment or assent under it; and will therefore require to be signed by the party, under

* 2 l'entr. 113.

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