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, 1732, the said Thomas Darners, was admitted to the premises in question, as heir at law of the said Thomazine Taylor, in the accustomed form above set forth; the rent was paid to the said Thomas Danvers, from the time of Miss Tai/lor'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 Sd 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, 1801 ; 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, nnd it was also proved that the testatrix had 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 b}' the name of Mary Cook as described in the instructions of the "d of August, 1780, Tin* question for the opinion of the court is, whether •'.lie lessors of the plaintiff are, under the above circumstances entitled to recover.

This case was twice argued at great length, first, by LaWes, for the plaintiff, and Nolan, for the defendant, in Trinity Term, 1805; and secondly, by the Solicitoii-general for the plaintiff; and MarryAt for the defendant, in Michaelmas term last.

Lawes, for the plaintiff, on the first argument, con- intended, that this estate was copyhold, and as such pas- Doedem. sed under the will of Thomazine Taylor, which, though Coolc

J' . terms

not attested by three witnesses, was, notwithstanding, a SANvsai. will in writing and within the custom of the manor. After premising that all the cases on the question whether copyhold or freehold, were cited in Doe dent. Smith v. Smith,* and Roe d. Conolly v. Fernon,f in' the former of which the chief difficulty was, that the will was not proved, whereas, in this case, the testamentary paper was pronounced to be a will; the estate in question constitutes panel of the manor, which is alone sufficient to constitute a copyhold; all customary freehold being only said to be holden of the manor, Britlel v. Bade,X Crouther 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. A$kew,\\ Attorney-General v. Andrews** Wagitafy.Wagstaffiff and Tuffnells.Page.%% If it is a customary freehold, the legal result will be the same, for that no more passes by a will than a copyhold, but by the surrender, and is not within the statute of wills, 32 //. VIII, c. 1, s. I. For, although the words of that act are general, yet they are explained by the 34 and 35 II. Fill. 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 estates 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 dceided.
+ 5 East. 51, 75, and Smith's Jlep. 31S. JI Lord liaym. 43.
S 1 Sulk. 364. 2 Vera. 597. || 2 Brown's Chan.

Cu. 59. ** l Vezts, 225. + + 2 Peere tl'ill. 258.
J! 2 Atk. 37.

KO. XXXI. N. S. Q q


[ocr errors]

As to which point the opinioa of Lord Hardaicke 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 Juc. I. c. 1(5, to oust the lessor of the plaintiff of the remedy by ejectment; for he had no right to enter, until after the outstanding lease granted by Thamazine Taylor was expired. The title to the possession, till then, continued 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. Orretl v. Maddox.*

Nolan, contra^ 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 r. Maddox, observed that there1 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 expellee to the parlies, and, that it would he 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 ElleuBorough, G. J. observed, that they would not be driven to that point merely.

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

[ocr errors]
[ocr errors]

except by a will attested by three witnesses under ibe ieq$. statute of frauds, 29 Car. II. c. 3, s. 5; or secondly, D^~^.m supposing it not to be within that clause, that it iswith- Coo*, iu the other branch of the statute, and the testamentary paper must be signed by the parties as a declaration of trust iu writing under 29 C. II. c. 3, s. 7; thirdly, supposing it to have passed by the will, the lessor of the plaintiff is without remedy, because he is barred by the statute of limitations, either by the adverse posses, sionofthe defendant and his father, and their receipt of rent for more than 20 years since the death of the testatrix, or by not having taken advantage of the right of entry for non-payment of rent; and fourthly, that there was a descent which tolled the entry. As to the first point, this is customary freehold, although it is staled to be held by copy of court-roll, fof, to render it copyhold, it must be added that it is liolden ad roluntalem domini, Roe dem. Couolly v. Vernon,* Hughes v. Harry,% Gale v. Noble,§ Crouther v. Old,/«/«/.$ Then, if the freehold is in the tenant as it is In customary estates, and not in the lord as in copyholds, the firststatute of wills asexplained 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 Tuffnell 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. Ilusscy V> GriUs,% 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

[ocr errors]

1806. to warrant the surrender to the use of the will, nor Doe dcm. could the lands be so surrendered. The inference

Cooi from wriich is, that they would nassbv the will, if there Dan»krs. was such a surrender and a custom to surrender; both ot 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, vet 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 thatstatute as explained by the 34 and 35 H. Fill, 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, yet 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 copyholds, 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

[ocr errors]
« ForrigeFortsett »