hold by way of mortgage, he continues in possession of the legal estate till the mortgagee is admitted, and cannot therefore devise the copyhold without a surrender to the use of his will. 9. A person mortgaged a copyhold in fee, and sur- Floyd v. Aldridge, cited rendered it to the mortgagee; but the latter was not 5 East, 137. admitted. The money was not paid at the time. The mortgagor afterwards made his will, and devised the estate, without a surrender to the use of his will, and died. The devisee brought his bill to redeem, making the heir a party. Sir T. Sewell, M. R. dismissed the bill, saying that the plaintiff had no interest in the copyhold; if the mortgagee had not the legal estate, there was no equity of redemption. The legal estate remained in the surrenderor, till admittance of the surrenderee. After the first surrender, before admittance, he is tenant to the lord, and may therefore surrender to the use of his will. A second cannot prejudice a first surrender; when the first surrenderee came in, he would be admitted. A mortgagee was seldom admitted; the mortgage was discharged by an entry on the court rolls; all remained in the mortgagor; no fine, no change of tenant, &c. As he might have made a surrender to the use of his will, without prejudice to the mortgagee, he ought to have done it: the estate could not pass at law, and equity would not assist a volunteer against the heir. The same point was determined by the Court of Doe v. Wroot, King's Bench in Easter Term, 1804. Kenebel v. 8 Scrafton, Ves. Jun. 30. 5 East, 132. V. 1 10. It was held in 10 Jac. that where a copyholder Semaine surrenders his estate to the use of his will, and after- Bulst, 200. wards makes a will; the lands do not pass by the will, but by the surrender; for the will is only declaratory of the uses of the surrender. 11. In the case of a surrender by a copyholder to the use of his will, and a devise of the copyhold under it, the devisee has no title till he is admitted; but if a devise of this kind is to two persons, and one of them Tit. 10. c. 5. Roe v. Hicks, Warde v. 1 Term Rep. 438, note. Ch. 7. Heylin v. Heylin. Doe v. A will now good without a surrender. is admitted, according to the purport of the will, this shall ensure to both. 12. The devisor must have the copyhold, at the time of making his will, otherwise it will not pass by it. 13. Thomas Warde made his will, and reciting that he was seised of a copyhold estate (whereas in fact he was not), devised all his real estate, &c. He afterwards purchased a copyhold estate, and surrendered it to such uses as he by his last will and testament should appoint; and afterwards died without making any other will. Lord Hardwicke held that the copyhold did not pass by the will. 1. Because the surrender was to a future appointment. II. Because the words of the will did not extend to an after-purchased copyhold; but only to such of which he was seised at the time of making the will. 14. It is said by Lord Mansfield to have been determined in the case of Harris v. Cutler, B. R. 10 Geo. III. that copyholds purchased after a will do not pass by it. But it will be shown in a subsequent chapter that a surrender of copyholds to the use of a will already made, may operate as a republication of such will, and by that means pass the copyhold. .. 15. It was resolved in a modern case, that where a copyholder, having an estate pour auter vie, surrendered all his estates in possession, remainder, or reversion, to the use of his will, and afterwards acquired the fee by descent, such fee did not pass by the will. 16. By the statute 55 Geo. III. c. 192. it is enacted, that in all cases where, by the custom of any manor in England or Ireland, any copyhold tenant of such manor may, by his or her will, dispose of or appoint his or her copyhold tenements, the same having been surrendered to such uses as should be declared by such will; every disposition or charge, made or to be made by such will, by any person who shall die after the passing of this act, (12 July 1815) of any such copyhold tenements, or of any right, title, or interest in or to the same, shall be as valid and effectual to all intents and purposes, although no surrender shall have been made to the use of the will of such person, as the same would have been, if a surrender had been made to the use of such will. § 99. 17. It was shown in the preceding title that the Court Tit. 37. c. 1. of Chancery would supply the want of a surrender of a copyhold in several instances; and the cases, in which a surrender to the use of a will had been supplied, were stated in the former editions of this work, but are now omitted. 5 B. & A. 492. 18. Where there was a custom enabling a married Doe v. Bartle, woman to pass by her will lands which had been surrendered to the use of her will, (the wife being examined apart by the steward and consenting) it was held that such surrender was matter of substance, and there not having been any previous surrender, the bill was ineffectual. The stat. 55 Geo. III. c. 192. was intended to supply the want of a mere formal surrender; and therefore such a case, although within the words, was not within the mischief intended to be remedied. this kind bars an 19. It has been stated in the preceding title that A surrender of in many manors a surrender to a stranger and his heirs entail. was sufficient to bar an entail. This doctrine has been Tit. 37. c. 2. extended to surrenders made to the use of the surrenderor's will. And Lord Hardwicke has said, that where a person, having an estate tail in a copyhold, surrenders it to the use of his will; if entails, by the custom of the manor, are not barrable by recovery or fine, but by surrender, in such case the surrender to the use of his will, not only effectuates the will, but operates as a bar to the entail. 2 Ves. 604. 20. A person being tenant in tail of a copyhold Carr v. Singer, estate, there being a custom for entailing copyholds, C. B. 1750. surrendered into the hands of the lord, to such uses as he should by any deed or will limit or appoint. He made his will, devising the customary premises in ques tion to one of the defendants. Upon the rolls of the manor there was found one single instance of a surrender to bar an estate tail; but it did not appear what enjoyment was under the surrender: and no instance was found on the rolls of a recovery suffered to bar estates tail. Birch, J. said, the question was, whether the estate tail was barred by the surrender, and the devise in pursuance thereof; as it was admitted there was a custom in the manor for entailing copyholds, it must be admitted there was some method to bar such entails, or else there would be a perpetuity, which the law abhorred; and he thought the surrender was a good bar to the entail. Burnet, J. said, he concurred in that opinion. The whole of the case came to this :-Here was a manor in which custom had established the entailing of copyhold, and no method of barring; for one instance so modern would not weigh with him. The opinion that where there is no recovery by custom, a common surrender will do, was mentioned by Lord Cowper in 2 Vern. 583.; but though this was an opinion only, his next determination, 2 Vern. 702., was delivered as a judge, upon the very point in judgment; his opinion therefore was, that the same rule must hold, that a surrender of a copyhold would be a sufficient bar of the entail, where there was no recovery by custom to bar it. Lord Ch. J. Willes said, he was the less concerned at differing in opinion in this case, because he thought the opinion of his brethren attended with less inconvenience than his. He agreed that an estate tail in copyhold was not created by custom, but custom cooperating with the statute; and that if it might be created by custom, some way to bar it must be found out, to prevent a perpetuity. He agreed also that a surrender would bar such estates, if there was a custom for it, according to the express words of Co. Lit. 60. And Lord Coke would never have said, that if an estate may That as his brother Abney, before his death, declared, himself of opinion with his two brothers, judgment must be in support of the surrender. interest devisa 21. Where the legal estate in a copyhold is out- An equitable standing, the person entitled to the equitable interest ble without a may devise it without a surrender, for otherwise it surrender. could not be disposed of by will; as a person who has not the legal estate in a copyhold cannot make a surrender. 22. A person agreed for the purchase of copyhold lands, which were surrendered out of court to his use; but before admittance he died, having made his will after the contract, and thereby devised the copyholds. Davie v. 1 2 Beardsham, Cha. Ca. 39. Freem. 157.1 601. 1 Term R. It was declared by the Court to be clear that the copyholds so agreed for passed by the will; for the purchaser had an equity to recover the land, and the Ti. 37. c. 1. vendor stood trusted for him, or as he should appoint, till a conveyance executed. 23. The Solicitor General submitted, that a devise Car v. Ellison, of a copyhold estate, without a surrender, where the 3 Atk. 73. |