is a contingent remainder to the heirs of the bodies of both father and mother. Pannel, 93. A person surrendered copyhold lands to the Lane v. use of D. and of the wife of A. for their lives, and 1 Roll. Rep. afterwards to the use of the heirs of the bodies of A. 238. and his wife. Upon a question in ejectment, whether this subsequent limitation to the heirs of the body of A. and his wife, vested an estate tail in the wife of A., it was held that it did not, but was a contingent remainder to the heirs of both their bodies. 94. John Robinson surrendered a copyhold estate, Frogmorton v. Wharrey, ad opus et usum Mariæ Arnall quam in uxorem ducere 2 Black. R. intendit, et hæredibus eorum duorum corporum legitimè 728. procreatis, et pro defectu talis exitus, ad opus et usum rectorum hæredum prædicti Johannis Robinson. Mary Arnall was admitted, tenendum sibi et hæredibus eorum duorum corporum legitimè procreatis, remainder to the right heirs of John Robinson. The Court of Common Pleas was of opinion that the wife took only an estate for life, with a contingent remainder to the heirs of the bodies of the husband and wife. 1 Leon. 101, 95. In a casein 30 Eliz. Lord Coke held that where Allen v. Palmer, a person surrendered a copyhold to the use of himself for life, remainder to another in tail, remainder to the right heirs of the surrenderor, there his heirs should be in by descent; contrary where the surrenderor had not an estate for life or in tail limited to him; for there his heir should enter as a purchaser: as if such use had been limited to the right heirs of a stranger, which was contrary to the rule in freeholds; for in that case where the estate moves from the Tit. 11. c. 4. grantor, the ultimate limitation to his heirs general, though the ancestor takes no preceding freehold, will $34. Cont. Rem. 87. Gilb. Ten. 272. Roe v. Griffith, 4 Burr. 1952. Thrustout v. Vide Fearne 416. be a reversion in him, and part of the old estate, and the heir will take it by descent. 96. The only ground (says Mr. Fearne) upon which Lord Coke's opinion in the preceding case can be accounted for, is, the supposition that an entire new estate was created, and derived under the uses of the surrender, throughout the whole of them; and that no estate taken under those uses was any part of the old estate but that this notion had been entirely exploded by modern decisions. 97. B. North surrendered a copyhold, to the use of himself and his heirs, till the solemnization of his marriage, then to the use of himself for life, remainder to his wife for life, remainder to trustees to preserve contingent remainders, remainder to the children of the marriage, in such manner as B. North should appoint; in default of appointment, to the heirs of the body of B. North by his intended wife, and in default of such issue, to the said B. North, his heirs and assigns for ever. Lord Mansfield held that though B. North had limited the reversion in fee to himself, yet the words did not operate; for the use resulted by operation of law. And all the Judges agreed that after the surrender to the uses of the settlement, the reversion still continued in the husband; and that no alteration or change of estate happened in this case. 98. It appears somewhat doubtful whether limitations in the nature of springing and shifting uses are Tit. 16. c. 5. good in surrenders of copyholds. It may be observed, that if limitations of this kind are not good, great inconveniences must arise, as the usual practice, for a long time past, has been to insert a covenant in marriage settlements, to surrender copyholds to the same uses to which the freehold estates are limited, and in most of such settlements there are springing and shifting uses. is sometimes 99. It has been long settled that a court of equity A Surrender will supply the want of a surrender of a copyhold supplied in estate, in favour of a purchaser for a valuable consi- Equity. deration, against the party who ought to make the surrender, and also against his heir. R. 218. 100. A. contracted with B. for the purchase of a Barker v. copyhold estate, and paid the purchase money, and Hill, 2 Cha. B. agreed to surreuder the premises at the next court, but died before a court was held, or any surrender made. Upon a bill in Chancery by the purchaser against the heir, the Court decreed that he should surrender the premises as soon as he came of age. 101. A mortgagee being a purchaser pro tanto, a surrender of a copyhold will also be supplied in his favour, by the Court of Chancery; even against a purchaser who has been admitted. 2 Vern. 609. 102. A. lent B. 2007. on a surrender of some copy- Jennings hold lands, which A. neglected to get presented at v. Moore, the next court, by which it became void. B. after- Blenkarne v、 wards sold the same lands to J. S. who took a sur- 2 Bro. Parl. Jennings, render, which he presented, and was admitted. But Ca. 278. it appearing that he had notice of A.'s right, it was decreed that A.'s defective surrender should be made Patteson v. good; and on an appeal to the House of Lords the Thompson, Finch, 272. decree was affirmed. 1 P. Wms. 103. In the case of a voluntary conveyance, a court Vane v. of equity will not supply the defect of a surrender Fletcher, against the heir, unless he has done something to 352. prevent the acceptance of the surrender. 104. Courts of equity will also supply the defect of a surrender to the use of a will, in many cases; of which an account will be given in the next title. Agreement to surrender. Tit. 32. c. 1. 105. An article or agreement in writing, executed according to the statute of frauds, to surrender a copyhold estate, is good'; and the person entering into 2 Freem. 65. it, and his heirs, will be bound by it as fully as by an agreement to convey a freehold estate. § 31. TITLE XXXVII. ALIENATION BY CUSTOM. CHAP. II. How Entails of Copyholds may be barred, and the T has been stated that copyhold estates may be Tit. 10. c.1. entailed, where there is a special custom to warrant § 47. I it ; or rather that they may be limited to a person and the heirs of his body, with a remainder over: and that the statute De donis conditionalibus cooperating with the custom, will give to such an estate all the qualities of an estate tail. In consequence of which it has been determined, that entails of copyholds may be barred in several ways; for otherwise estates of this kind would be unalienable, which the law will not allow. and Regrant. 2. The modes of barring entails of copyholds are Forfeiture principally three: First, by forfeiture and regrant ; VOL. V. ૨૧ |