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by revoked the devise in her will of the customary estate, and gave it to Margaret Archer for her life only, with remainders over; and the doubt was, whether the codicil was a good revocation of the will, and passed the customary estate.
The Lord Chancellor Hardwicke said, that the question was, whether these customary estates were, in point of conveyance or devise by will, so far like copyholds, that the determinations with respect to the latter shall govern these in like manner and pärity of reason. That courts ought to avoid making large and liberal constructions to take cases out of the statute of frauds; which was made to ascertain property, and the words whereof were very extensive. That copyholds were not devisable by will, nothing passing out of the surrenderer till the will was made ; and when it was made, the lands did not pass by the will; the devisee might come and be admitted on the foot of the surrender and will taken together ; just as if the name had been inserted in the surrender itself. That the ground of his opinion in Tuffnell v. Page, was equitas sequitur legem. That customary freeholds and copyholds differed extremely in their nature : the latter being of a base tenure, and by the old common law, held at the will of the lord, though now established on a more firm footing: customary freeholds never were of the base kind. That Jones was a trustee, and the legal estate was in him. There was no evidence that there could be in that manor a surrender of a customary freehold. It was agreed that there never was such. That the foundation of the determination as to copyholds was, that the party might dispose by surrender and will. As there was no method of passing the legal estate of these customary freeholds in that way, there was no reason to hold them out of the statute. And if the legal estate was not so, so was not the trust. There was something, observed his Lordship, arising out of the declaration of trust, which induced him not to make a large and liberal construction ; for as two witnesses were required by it to the execution of a deed, it seemed strange to think, that in case of execution by will, it might be on a loose paper, without any witnesses at
all. It has been held, however, in the late case But where of Cook v. Danversk that such customary freeholds there is a cuso tom for surren- where there is a custom for surrendering them to the dering these equitable estates use of a will are as much out of the statute of frauds to the uses of a will they seem as common copyholds; and it should seem that to be out of the
the trust also of such estates would by analogy to the principle of the case of Tuffnell v. Page, be considered as out of the statute.
All equitable It seems scarcely necessary, after the opinions and estates of free determinations which have been produced, to observe hold must be devised by a
to the reader, that in a devise of a trust or equitable will executed and attested ac
estate in freehold lands, the formalities of execution cording to the
and attestation, required by the statute, are as necessary to be observed as in wills disposing of the legal
k 7 East, 299. Sup. 40.
estate. There can be no question, said Lord Macclesfield', but that a trust of an inheritance could not be devised otherwise than by a will attested by three witnesses, in the same manner as a legal estate ; for if the law were otherwise, it would introduce the same inconveniences as to frauds and perjuries as were occasioned before the statute, by a devise of the legal estate in fee simple.
Though the necessity of writing imposed by the Wills of lands statute of Charles was already a condition of their custom, must validity by the statute of wills, yet this requisition of by the express the second act was not nugatory, since 'lands that direction of the were devisable by local custom, (for enforcing the testamentary dispositions whereof the register has furnished an appropriate writ",) were left untouched by the statutes of Henry (4).
(4) But it may still in some certain cases be necessary to resort to the custom of a place; as where it enables an infant of fourteen, or, perhaps, a feme covert, neither of whom is capable, under the statutes, of devising lands. Vid. 2 And. 12. where it is said that a custom enabling an infant under 14, (at which age, and not before, the law supposes some discretion,) would not be good,
Estates pur auter Vie.
THE 12th section of the statute of frauds enacts as follows:-" And for the amendment of the law in the particulars following, be it enacted, that from henceforth any estate pur auter Vie shall be devisable by a will in writing, signed by the party so devising the same, or by some other person in his presence, and by his express directions, attested and subscribed in the presence of the devisor by three or more witnesses ; and if no such devise thereof be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in the case of lands in fee simple, and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands."
As by this provision of the statute of frauds these freeholds, held for the lives of others, are made devisable as fee simple estates, the statute of fraudulent devises, which vacates devises of land as
. 3 and 4 W. and M. c. 14.
against specialty creditors, has been clearly held to attach upon this newly (1) devisable property, in the same manner as upon fee simple estates. But as the quality of these estates may be much affected by the terms in which they are granted, being sometimes limited to go to the heirs, and sometimes to the executors, administrators and assigns, which may vary the result as to the operation of testamentary dispositions, it may be useful to take rather a large view of their nature, and the consequences of the several enactments regarding them.
By the common law, where a man was tenant for the life of another, by virtue of a grant to himself only, without mentioning his heirs, and died during the life of him for whose life the estate was holden, in such a case the first occupant, or he who could first get possession of the land, was authorised to keep such possession as long as the cestui que vie lived ; and this was called ġeneral or common occupancy.
But this title of general occupancy has given place to the regulations of the statute 29 Car. 2. c. 3. the subsequent statute 14 Geo. 2. c, 20. But by the 9th section of the statute last-mentioned, which recites that by the former statute it had
(1) These estates pur auter vie, could not be devised within the statutes 32 H. 8. c. 1. and 34 and 35 H. 8. c. 5. which last statute explains estates of inheritance to mean estates of fee simple only.- Per Curiam, in Took v. Glascock, 1 Saund. 261. These estates by occupancy were neither devisable nor subject to debts before the statute of frauds. Ragget v. Clerke, 1 Vern. 234.