་ ་ previously surrender it to the use of my last will and testament (e). The several parts of the assurance by surrender, are, the surrender, the presentment, and the admittance. thereon. Until the admittance of cestui que use, the lord takes notice Remarks of the surrenderor as his tenant; and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord: yet the interest remains in him not absolutely, but sub modo: for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the surrender. But no legal interest is vested in the nominee before admittance; if he enters he is a trespasser and punishable in an action of trespass, and he cannot surrender to the use of another; yet he may be admitted whenever he pleases; nor can he be deprived of the effect and benefit of the surrender; the surrenderor cannot retract his surrender; and if the lord refuse to admit the nominee, he is compellable to do it either by a bill in chancery or a mandamus. The presentment, by the general custom of 2 Roll. Rep. manors, is to be made at the next court baron after the sur- Presentment. render; but by special custom it may be made at any subsequent court, or out of court: but not out of the manor. If the steward, the tenants, or others, into whose hands the surrender 107. is made, if made out of court, refuse or neglect to bring it in to Co. Cop. s. 40. be presented, and if the lord will not do the injured party justice, he may obtain relief in chancery. Admittance is of three sorts: first, an admittance upon a Admittance. voluntary grant from the lord; an admittance upon surrender by the former tenant; and an admittance upon a descent from the ancestor. (e) By 7 Wm. 4 and 1 Vict. all property may be disposed of by will, executed as thereby directed (see post, p. 239), and the power thereby given extends to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, although the testator may not have surrendered the same to the use of his will, or being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been so admitted, or notwithstanding that the same in consequence of the want of a custom to devise or surrender to the use of a will, or otherwise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will, or a surrender to the use of a will, should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this act, if this act had not been made. The statute 55 Geo. 3, c. 192, only extended to supply surrenders in form, not in substance; Doe d. Nethercote v. Bastle, 1 D. & R. 81; 5 B. & A. 592. Upon a voluntary grant. Co. Cop. s. 41. Upon surrender. 4 Rep. 27. Co. Litt. 59. In admittances upon a voluntary grant from the lord when copyhold lands have escheated or reverted to him, he is considered as an instrument; for though it is in his power to keep the lands in his own hands, or to dispose of them at his pleasure, by granting an absolute fee simple, a freehold, or chattel interest therein; yet if he still continues them as copyhold, he is bound to observe the ancient custom in every point; he can neither add to nor diminish the ancient rent, nor make any variation in other respects. In admittances upon surrender the lord is not reputed as owner, but as an instrument; and the tenant admitted is subject to no charges or incumbrances of the lord; for his claim to the estate is solely under him that made the surrender. So Upon descents. also in admittances upon descents by the death of the ancestor, the lord 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. Whether he be tenant in fee or for years, in possession by right or wrong, no regard is had to the quantity or quality of his estate, and the admittances made by him shall not be impeached on account of his title, because they are ministerial acts, which every lord in possession is bound to perform. 4 Rep. 27. Difference between adinit tances upon Admittances, however, upon surrender differ from admittances upon descent in this; that by surrender nothing is surrender and vested in cestui que use, before admittance, any more than in upon descent. voluntary admittances; but upon descent the heir is tenant by copy immediately upon the death of his ancestor; for though he cannot be sworn on the homage, or maintain an action in the lord's court as tenant, he may enter the land before admittance, and take the profits, may punish any trespass done upon the ground, and may surrender on payment to the lord of his fine (d). Heirs of copyholders are, however, enforced in every manor to come into court, and be admitted according to the custom within a short time after notice given of their ancestors' decease. 4 Rep. 23. (d) Previous to the new Statute of Wills, an heir at law might devise a copyhold estate descended to him without having been admitted, and without previous payment of the lord's fine, where due on admission. Right d. Taylor v. Banks, 3 B. & Adol. 664, overruling King v. Turner, 2 Sim. 545. And see now 7 Wm. 4 and 1 Vict. s. 3, by which a will of copyholds is rendered valid, notwithstanding the testator being entitled as heir, devisee, or otherwise, to be admittted thereto, shall not have been admitted thereto; ante, note (c) 237. CHAPTER XXIII. OF ALIENATION BY DEVISE. THE last method of conveying real property is by devise or Wright of disposition contained in a man's last will and testament (a). Tenures, 172. (a) By 7 Wm. 4 and 1 Vict. c. 26, "An Act for the Amendment of the Laws with respect to Wills," it is enacted, that the word "will" shall extend to a testament and to a codicil, and to an appointment by will, or by writing in the nature of a will, in the exercise of a power, and that the words "real and personal estate" shall extend to every species of property. All the former statutes concerning the devise and bequest of real and personal property are, so far as they relate thereto, repealed, except 11 Geo. 4 and 1 Wm. 4, c. 10, with respect to wills of petty officers and seamen in the navy. Every person may devise or dispose by his will, of all real and personal estate, including customary freeholds and copyholds, which he shall be entitled to at law or in equity at his death, although he may not have surrendered such copyhold to the use of his will, or notwithstanding, that being entitled as heir, devisee, or otherwise, to be admitted thereto, he shall not have been admitted thereto, or although the same, for want of a custom to devise or surrender to the use of a will, or otherwise, could not by law, have been disposed of by will, if this act had not been made: and also to estates pur autre vie, whether there shall, or not, be a special occupant, and of whatever tenure the same shall be, and whether corporeal or incorporeal; and to all contingent, executory, or other future interests; and to all rights of entry for conditions broken, and other rights of entry; and to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may become entitled to at the time of his death, notwithstanding he may become entitled to the same, subsequently to the execution of his will. Devisees of customary and copyhold estates, claiming to be admitted thereto, are only to be admitted, on payment of the stamp duty, fees and fines, lawfully payable on their admittance before the act. Wills of customary freeholds and copyholds, or so much thereof as shall contain the disposition of such customary freeholds or copyholds, must be entered on the court rolls of the manor; and where such estates could not, before the act, have been disposed of by will, the same fine, heriot, dues, &c., shall be paid by the devisee, as would have been due from the customary heir, in case of the descent of the same customary estate. If no disposition by will shall be made of any estate pur autre vie, of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by special occupancy, as assets by descent, as in the case of freehold land in fee simple. And if there shall be no special occupant of any estate pur autre vie, of any tenure whatever, and whether corporeal or incorporeal, it shall go to the executor or administrator of the party, that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, either by reason of a special occupancy, or by virtue of this act, it shall be assets in his hands, and shall go and be applied in the same manner as the personal estate of the testator or intestate. No will made by any person under twenty-one years of age shall be valid, 8.7. No will made by any married woman shall be valid, except such as might have been made by a married woman before the passing of this act, s. 8. No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned, (that is to say,) it must be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction; and such signature must be made or acknowledged by the testator, in the presence of two or more witnesses, present at the Before the conquest, lands were devisable by will; but upon the introduction of the military tenures, the restraint of de same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary, s. 9. No appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner hereinbefore required; and every will executed in manner hereinbefore required, shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional, or other form of execution, or solemnity, s. 10. Every will executed in manner herein before required shall be valid, without any other publication thereof, s. 13. If any person who shall attest the execution of a will shall, at the time of the execution thereof, or at any time afterwards, be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid, s. 14. If any person shall attest the execution of any will, to whom, or to whose wife or husband, any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment, shall, so far only as concerns such persons attesting the execution of such will, or the wife or busband of such person, or any person claiming under such person, or wife or husband, be void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will, s. 15. In case by any will, any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof, s. 16. No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof, s. 17. Every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the statute of distributions,) s. 18. No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances, s. 19. No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil, executed in manner hereinbefore required, or by some writing, declaring an intention to revoke the same, and executed in the manner in which a will is herein before required to be executed, or by the burning, tearing, or otherwise destroying the same, by the testator, or by some person in his presence, and by his direction with the intention of revoking the same, s. 20. No obliteration, interlineation, or other alteration, made in any will after the execution thereof, shall be valid, or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed, if the signature of the testator, and the subscription of the witnesses, be made in the margin, or on some other part of the will opposite, or near to such alteration, or at the foot or end of, or opposite to a memorandum, referring to such alteration, and written at the end or some other part of the will, s. 21. No will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution vising lands naturally took place as a branch of the feodal doctrine of non-alienation without the consent of the lord. thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same; and when any will or codicil, which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown, s. 22. No conveyance or other act made or done subsequently to the execution of a will, of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will, with respect to such estate or interest in such real or personal estate, as the testator shall have power to dispose of by will at the time of his death, s. 23. Every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will, s. 24. Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised, or intended to be comprised, in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise, (if any) contained in such will, s. 25. A devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise, which would describe a customary, copyhold, or leasehold estate, if the testator had no freehold estate, which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will, s. 26. A general devise of the real estate of the testator, or of the real estate of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend, (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend, (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will, s. 27. Where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest, which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will, s. 28. In any devise or bequest of real or personal estate, the words "die without issue," or "die without leaving issue," or "have no issue," or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being without any implication arising from such words, a limitation of an estate tail to such person or issue or otherwise; provided, that this act shall not extend to cases where such words as aforesaid import, if no issue described in R |