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 47. 10s. 8d., 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. But 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. 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. 80. Thus, where the surrender is general, without any words of limitation, the surrenderee will take an 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. Co. Cop. $49. 4 Rep. 29 b. Gilb. Ten. 258. Brown v. 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. 83. 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, who held, that surrenders of copyholds must be governed by the same rules as conveyances at common law. 1P.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. 1 have agreed in opinion, that the construction of a surrender ought to be the same as that of a feoffinent 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 3. 12. 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, 3 Term R. 470. 87. A person surrendered a copyhold to the use Wright v. of himself for life; and from and after his decease, 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, and was not entitled to the same favourable construction as a will; and therefore, unless the surrenderor had used the language which would confer a legal estate, it could not be conferred. In deeds, certain legal phrases must be used in order to create certain estates, as the word heirs, to create a fee, and heirs of the body, to create an estate tail. But beyond that, he would say with Lord Hardwicke, that there was no magic in particular words, further than as they showed the intention of the parties. Now here it was impossible to entertain any doubt. S. B. surrendered the estate to the use of himself for life, then to his wife during her widowhood; then, that is, in case her estate for life was put an end to by doing this act, which he meant to guard against, to her son W. Wallis for life; and after his decease, to the issue of his body. Therefore he could not accede to what was said by the defendant's counsel, that this was a contingent remainder in W. Wallis; for it was vested, though he cautiously avoided saying what the limitation to his issue was. The surrender then proceeded to state a proviso, that in case W. Wallis should die in the lifetime of the surrenderor, or without issue of his body, the estate should go to the right heirs of the surrenderor, and here the question arose on the word or; there was no doubt of the intention of the parties, and where sense required it, there were many cases to show, that 2 Stra. 1175. the Court might construe the word or into and, and 3 Atk. 390. and into or, in order to effectuate the intention of the parties here therefore, in order to give effect to the intention of the surrenderor, the Court must say that when he used the word or, he meant and, and there was no case in which any difference had been made, as to this point, between a will and a deed, when the Court were considering how the intention of the parties could be effected. Then, without deciding what interest the lessors of the plaintiff had, at all events, they had a sufficient title to maintain the ejectment. c. 22. 88. The rule established in Shelley's case takes Vide Tit. 32. place in the construction of surrenders of Copyholds; Gilb. Ten. and therefore, where a person surrenders a copyhold 270. to the use of himself for life, remainder to another in Banner, Highway v. tail, remainder to his own right heirs, there the heirs Tit. 32. c. 22. shall take by descent. 89. Mr. Fearne observes, that in a case noticed by Atkyns, upon a surrender of a copyhold to the use of the husband for life, then of the wife for life, and of the heirs of the bodies of the husband and wife, remainder in fee to the use of the survivor, it is said the limitation did not vest an absolute estate tail in the wife, who survived, but only gave her an estate tail after possibility of issue extinct, and that the estate tail vested in the person who was heir of the bodies of both husband and wife; that the reasons for this opinion were not mentioned, nor was it stated to be the resolution of the Court, nor did it appear whether that point entered the question then before the Court, and that it was no easy matter to account for such an opinion. The limitation to the heirs of the bodies of the baron and feme must either have been executed in the baron and feme jointly, as an estate tail in possession, or have vested in them jointly as a remainder, unless it could have been held a contingent limitation to the heir of both their bodies. In neither of the two first cases could the wife be tenant in tail after possibility of issue extinct, so long as any issue of her body by her deceased husband was living; and if there was any such issue then $40. Cont. R. 80. Sutton v. Stone, |