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the contingent remainder to his first and other

sons.

It was however agreed, that this surrender of the reversion would not bar the son, because the freehold and inheritance were in the lord; for there was not the like inconvenience as in freehold estates at common law, in respect of the contingent remainders, where there was nobody against whom to bring præcipe.

72. Lord Ch. B. Gilbert says, "Copyholder for Ten. 244. life, remainder to another in fee, the first copyholder commits a forfeiture, he in remainder shall not enter, but the lord shall hold it during the life of the first copyholder; for copyhold estates are not like those at common law, for in copyhold cases the remainder is to commence after the death of tenant for life, and not after his estate or interest is gone."

265.

73. In a subsequent page, he says, " It is made a doubt whether, by the destruction of the particular estate, the remainder that is in contingency be destroyed. As to this point we ought to distinguish, for it seems some are, and some are not; as, for example, if an estate be given to a copyholder for life, the remainder to the right heirs of J. S., if the tenant for life die, living J. S., there it seems clear that the remainder is destroyed; for it cannot take effect, as by the limitations it ought. But then, if tenant for life in that case had committed a forfeiture, or made a surrender, and then, living tenant for life, J. S. had died, it seems to be very clear that his right heir might take; for his estate in remainder was not to take effect after the determination of the interest of tenant for life, but after his death; and Vide Fearne when that happened, he was capable to take."

Cont. R.471.

A Surrender and Resur

74. Where a copyhold has descended ex parte marender alters terna, a surrender and re-surrender will alter the dethe Descent. scent, and make them descendible to the heirs er parte paterna.

Doe v. Mor

gan,

103.

75. A person being seised in fee of a copyhold 7 Term Rep. estate, which had descended to him ex parte materna, surrendered it to the use of himself and his assigns for life, remainder to the use of such persons, and for such estates, as he should by deed or will direct. He afterwards surrendered to the use of a mortgagee in fee, who was admitted. The mortgagor paid the mortgage money; and the heir of the mortgagee, who was an infant, by virtue of an order of the Court of Chancery, surrendered the premises into the hands of the lord, to the use of the mortgagee, who was admitted.

Construction

of Surrenders.

Vide Tit. 32. c. 19. § 106.

Roe v. Vernon,

5 East, 51.

Lord Kenyon held this to be like a feoffment and re-enfeoffment, which, it had long been settled, broke the line of descent, and consequently the heir ex parte paterna was entitled to recover.

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76. The same rules are adopted in the construction of surrenders as in that of grants; and therefore, where a particular thing is once sufficiently ascertained by some circumstance belonging to it, the addition of an allegation mistaken or false respecting it, will not frustrate it; but where the surrender is in general terms, there the addition of a particular circumstance will operate by way of restriction and modification of such surrender.

77. Thomas Earl of Strafford having several customary tenements held of the manor of Wakefield, some of which were compounded and others uncompounded, surrendered to the use of his will all and singular the lands, tenements, &c. whatsoever in the

manor, which he held of the lord by copy of courtroll, in whose tenure or occupation soever the same were, being of the yearly rent to the lord in the whole of 41. 10s. 84 d., and compounded for. It was held, that the words and compounded for, restrained the operation of the surrender to that description of copyholds then belonging to the surrenderor, and that the words being of the yearly rent, Goodright &c., which were not referable to any actual amount 11 East, 58. of the rents, either compounded or uncompounded, though much nearer to the whole than to the compounded only, could not qualify or impugn that restriction.

v. Pear

78. The uses of surrenders are generally declared in the surrender, which is entered on the court-rolls; though Lord Hardwicke held, there was no necessity 1 Atk. 74. of a declaration of uses of a surrender in the courtrolls, and that where the steward endorsed the uses on the back of the surrender, it was sufficient. where copyholds are surrendered to trustees, the uses are declared by a separate instrument, which is never entered on the court-rolls, and in that case the legal estate remains in the trustees, copyholds not being within the statute of uses.

But

79. The construction of the uses declared on a surrender of a copyhold estate was not formerly so strict as that of a common law conveyance, especially where there had been a custom in the manor of construing surrenders in a particular manner.

Gilb. Ten.

258.

80. Thus, where the surrender is general, without Co. Cop. $49. any words of limitation, the surrenderee will take an 4 Rep 29 b. estate for life; but if there be a special custom in a manor, that the words sibi et suis, or sibi et assignatis, &c. shall create an estate of inheritance, they will be allowed to have that effect.

Brown v. Foster, Cro.Eliz.392.

Cop. § 49.

Seagood v.
Hone,

81. A custom that where a copyholder surrenders to the use of another, without expressing any estate, the lord may grant it in fee to the person to whose use the surrender was made, was held to be good; for the interest of the land being between the lord and the copyholder, it was not unreasonable that upon such an uncertainty the lord should ascertain it.

82. Lord Coke says, if a copyhold be surrendered to a man, et semini suo hæreditabili de corpore, or to a man, et hæredibus ex ipso procreatis, or to a man in frank marriage, with his wife, an estate tail will pass : in the first, without the word heirs; in the second, without the word body; and in the third, without either.

8S. It was however resolved, in the reign of King Cha. I. that an estate tail should not arise by implication, upon a surrender of a copyhold: as, where a Cro.Car.366, copyholder surrendered to A. and B., and the longer liver of them, and, for want of issue of the body of A., the lands to remain to the son of J. S. It was resolved, that A. had but an estate for life, and being so by express limitation, no greater estate should arise to him by implication.

1 P.Wms. 14. Tit. 32. c. 21. $ 55.

84. In the case of Fisher v. Wigg, Justice Gould said, that surrenders of copyhold lands to uses shall have the same favourable construction as wills, and are not to be tied up to the strict rules of the common law, but expounded according to the intent of the party.

This principle was opposed by Lord Holt, whoheld, that surrenders of copyholds must be governed by the same rules as conveyances at common law.

1 P.Wms. 70. In the case of Idle v. Cook, which arose a few years 2 Ld. Raym. after, Lord Holt and the other Judges appear to

1144.

have agreed in opinion, that the construction of a surrender ought to be the same as that of a feoffment or any other deed; and Justice Powell said, "We have gone too far already in helping the intention of the parties, in construction of limitations, and have made estates so uncertain, that lawyers do not know how to advise purchasers. I cannot consent to carry it any farther."

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85. This doctrine has been confirmed by Lord 2 Atk. 101. Hardwicke, who has said, that surrenders of copyholds are to be construed as deeds and conveyances

at common law, and not as a will.

86. In the construction of surrenders, the word or will be construed and, if necessary to effectuate the intention of the parties.

Kemp, 470.

87. A person surrendered a copyhold to the use Wright v. of himself for life; and from and after his decease, 3 Term R. to the use of his wife during her widowhood; and after his decease, and upon the marriage of his wife, then to the use and behoof of William Wallis, for his natural life, and from and after his decease, to the use of the issue of his body lawfully to be begotten; with a proviso, that in case W. Wallis should die in the lifetime of the surrenderor, or without issue of his body, then all the surrendered premises should go to the right heirs of the surrenderor for ever. W. Wallis died in the lifetime of the surrenderor, leaving issue, who brought an ejectment; and the question was, whether they were entitled to this copyhold.

Lord Kenyon said, the questions were, What was the intention of the parties to the surrender? whether they had expressed it in legal terms? and if so, whether any rule of law would be violated in giving effect to it? There was no doubt but that a surrender was considered as a common law conveyance,

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