Lex custumaria, or, A treatise of copy-hold estates in respect of the lord, copy-holder wherein the nature of customs in general, and of particular customs, grants and surrenders, and their constructions and expositions in reference to the thing granted or surrendred, and the uses or limitations of estates are clearly illustrated : admittances, presentments, fines and forfeitures are fully handled, and many quaeries and difficulties by late resolution setled : leases, licences, extinquishments of copy-hold estates, and what statutes extend to copy-hold estates are explained : and also of actions by lord or tenant, and the manner of declaring and pleading, either generally or as to particular customs, with tryal and evidence holder may recieve relief in the Court of Chancery : to which are annexed presidents of conveyances respecting copy-holds, releases, surrenders, grants presentmets, and the like : as also presidents of court rolls, surrenders, admittances, presentments, &c. / by S.C., Barister at Law.

Of a Surrender to the Use of one's last Will, and how to be construed.

A man cannot devise Copy-hold Estate to transfer it by his last Will only, but he must Surrender it in Manus Domini, to the Use of his last Will, and then he may devise it to whom he pleaseth; but its apparent that no∣thing passeth by the Will, but all by the Sur∣render; and the Will is only a Declaration of the Uses of the Surrender, 1 Bulst. p. 200. Se∣main's Case: But if a Copy-hold he devised without Surrender, it cannot be executed in point of Interest, but only by Decree in Chan∣cery, 2 Keb. 837. Harrison and Grosvener.

But a Custom, that a Copy-holder shall De∣vise his Land, is not good without Surrender, p. 35 Eliz. E. R. Rot. 334. Wrot's Case.

A man seized of Copy-hold Lands, devised a certain parcel of them to his Wife for Life, the Remainder to his Brother and his Heirs, and afterwards in presence of three persons of the Court, said to them, I have made my Will, and have appointed all things in my Will as I will have it; and afterwards he said, And here I Surrender all my Copy-hold Lands into your Hands accordingly. Per Cur. The Surrender is restrained by the VVill, and not all his Co∣py-hold Lands, but only so much as are men∣tioned in the Will, pass to the Wife, 3 Leon. p. 18.

Copy-holder in Fee surrenders into the Hands of a Tenant, according to the Custom, to the Use of a Will, which he said he would make and leave in the Hands of his Partner Moss. Moss dyes, and after the Copyholder makes his Will, and recites the Surrender; it

seems that the Devisee shall have the Lands, for the words, That he would leave in the Hands of Moss, are words of demonstration, and not of restraint; and then it is a ground in our Law, When an act is to be done, with re∣ferrence to another thing, which is impossible, ille∣gal or variant, the act shall stand, and the refe∣rence shall be void, Lit. Rep. p. 23. Littleton against Eaton.

Let us see now when a man hath surrendred to the Use of his last Will, how the Estate stands in the Surrenderer.

Copy-holder surrenders to the Use of him∣self, for Life, and after to the Use of R. his Son for Life, and after to the Use of his last Will. R. dyes, the Father afterwards surrenders it to the Use of J. S. in Fee, and dyes, with∣out making any Will. Its a good Surrender, for a Copy-holder may surrender parcel of the Estate, and the residue shall be in himself, and the Fee Simple of the Copy-hold being limited to the Use of his Will, remains in the Copy-holder, and not in the Lord, Cro. El. 441. Co. 4 Rep. 23. Finch and Hockly, and that the Fee lyes not in the Lord, is Bullen and Grants Case, 1 Leon. p. 174. When one surrenders to the Use of his last Will, and thereby deviseth Copy-hold Lands to his middle Son, and the Heirs of his Body, who dyes without Issue, and the Lord grants it to the youngest, the eldest Son may enter, and Admittance is not necessary.

J. S. seized in Fee of Copy-hold Lands, devised it to his Wife for Life, and that she should sell the Reversion for the payment of his Debts, and after in Court did Surrender the Lands to the Use of his Wife, for Life, according to the Will and Deed, she may sell the Land; he surrendered and referred to the

Will, and she surrendred upon Condition to pay 12. l. this was held to be a good Sale, according to the Will. Cro. El. 68. Bright and Hubbard.

If there be two Joynt-Tenants, and the one Surrenders into the Hands of two Tenants to the Use of his last Will, and makes a Will of the Land, and dyes; the Surrender is after∣wards presented. Per Cur. Its a severance of the Joynture, and shall bind the Survivor, for being presented, it shall relate to the first time of the Surrender, Cro. Jac. 800. Porter's Case, 1 Brownl. Rep. 127. Allen and Nash.

Notes

• Decreed.
• A general Sur∣render re∣strained by the Will.
• Words of Demonstrati∣on, and not of restraint.
• Copy-hold devised to pay Debis.
• By Joynt-Te∣nants.