No free-bench out of trust estate. Free-bench how barred. Feme adult may bar her dower by any provision. When infant will be barred. Copyholds not within Statute of Jointures. Free-bench may be barred of election, surrenderee, who dies before admittance, will be entitled to free-bench. (1) A wife is not entitled to free-bench out of the trust of copyhold or customary freehold estates. (2) Free-bench or customary dower may of course be barred by agreement on marriage; for a feme adult may preclude herself of dower by accepting any provision in lieu thereof, whether of a legal or equitable nature, and whether proceeding out of the real or personal estate of the husband, and though resting merely in covenant, and contingent. (3) And a provision agreed to be accepted by an infant in lieu of dower will be binding in equity, though it possess not the several properties of a legal jointure; for an infant will be bound by an equitable jointure made with the consent of her parent or guardian, where in a parallel case she would have been bound, had the jointure been legal; (4) but if the provision be not equally certain with her dower, or be made after marriage, equity will permit her to elect between the two interests. (5) Since copyhold property is not within the Statute of Jointures, (6) it would seem that it cannot be accepted by an infant in lieu of dower, so as to preclude her from electing to claim dower at common law on her husband's death. (7) The wife's right to free-bench may also be barred by under doctrine putting her to an election between that and some other interest bequeathed by her husband's will; or at least if she elect to take her free-bench, she must make compensation to the party disappointed out of the interest bequeathed to her. (8) (1) Gilb. Ten. 287. Vaughan v. Atkins, 5 Bur. 2764, 2785. (2) Forder v. Wade, 4 Bro. C. C. 521. (3) Walker v. Walker, 1 Ves. Sen. 54. (4) Corbet v. Corbet, 1 Sim. & Stu. 612. (5) Carruthers v. Carruthers, 4 Bro. C. C. 500. (6) 27 H. 8, c. 10. (7) But see Jordan v. Savage, 3 Bac. Ab. 717. Chitty v. Chitty, 3 Ves. 545. And 1 Rop. Husband and Wife, 475. (8) Warde v. Warde, Amb. 299. This principle was among other cases recognised in the case of Kidney v. Coussmaker, (1) which also decided that an election will not be conclusive on a widow, if at the time of her accepting one subject of election, she was not aware of its liability to certain incumbrances, and so made the election under an erroneous supposition. It was also held, that the doctrine of election was not applicable to the case of creditors. With respect to the last point, however, it has been observed by Lord Eldon in a more recent case, that if creditors, claiming satisfaction of their debts out of real estates under the provisions of a will, are disappointing the will by proceeding against property that was intended to be exempted, he would not go the length of saying they could claim the benefit of the devise for their payment, if they were not satisfied with that which the testator had given to them, and which the law had not given to them; nor would he say, that if they would not take the provision made for them by the will, they would not be obliged to take that provision only which they were entitled to by law. (2) Election made in error not binding. Election as applicable to creditors. necessary. When the widow is entitled to the entirety of the copy- When admishold for her free-bench, her admission has been consi- sion of widow dered unnecessary, the estate taken by her being a continuation of the husband's seisin, and the heir not being entitled to enter; but when the custom gives her a portion only of the copyhold, her admission has been thought necessary in the absence of a custom to the contrary, the husband's seisin being then interfered with by the right of entry in the heir: and when admittance is requisite, a fine will accrue to the lord. (3) It is observable that a plaint for free-bench or dower is the only one preserved from destruction by the 3 & 4 W. 4, c. 27, s. 36. (1) 12 Ves. 136. (2) See 1 Jac. Rep. 115, in Clarke v. Earl of Ormonde. The 3 & 4 W. 4, c. 104, has now subjected freehold and copyhold estates to the payment of simple contract debts. (3) 1 Watk. Cop. 334, 362. 2 Ibid, 71, [4th ed.] Scriv. Cop. 365. But see Borenford v. Packington, 1 Lev. 1. Fine. Plaint for free- Curtesy. Curtesy out of equitable es tate. When admis necessary. 5. Of Curtesy, and the Husband's Admission and Fine. On the death of a feme copyholder leaving a husband surviving, the custom usually gives him the entirety of the copyhold for his life, or some partial interest therein, under the denomination of curtesy; (1) and the husband's claim to this provision is not dependent on his having had issue, unless the custom require it. And the non-admission of the wife will not affect the husband's right to curtesy, if her title was complete without admittance. (2) When the custom admits of curtesy, the husband will be entitled, though the estate was equitable only, in the same manner as he is entitled to curtesy out of a trust estate in freehold property. (3) With respect to the admission of the husband as tenant sion of husband by the curtesy, when the estate to which he becomes entitled consists of the entirety of the copyhold, his admission has been considered unnecessary, there being no change of seisin; but when the estate consists of a partial interest only, his admission has been thought necessary, the seisin being disturbed by the entry of the heir. When admission is required, a fine becomes payable to the lord. (4) (1) 4 Co. Rep. 22 b. (2) Doe v. Brightwen, 10 East, 583. 2 Watk. Cop. 73, [4th ed.] (3) Sweetapple v. Bindon, 2 Vern. 536. Cunningham v. Moody, 1 Ves. Sen. 176. (4) 1 Watk. Cop. 334, 363. 2 Ibid. 75, [4th ed.] Scriv. Cop. 365. SECT. VIII.-Of Legal and Equitable Remedies. The 36th section of the above statute having abolished all real and mixed actions, except writs of dower, quare impedit, and ejectment, and all plaints, except a plaint for free-bench or dower, the remedy by ejectment is that which it will be proper to notice. 3 & 4 W. 4, c. 27, s. 36. Some of the objects effected by the statute are the fol- Objectseffected lowing: to make twenty years the limit for the recovery by that statute. of land or rent, with an allowance for disabilities; to make forty years the extreme limit for the recovery of land or rent, notwithstanding the existence of disabilities; to apply the same limitations to equitable as to legal estates; to provide a limitation as between mortgagor and mortgagee; to provide a limitation in respect to money secured out of land or rent, or to any legacy, and arrears of dower, and of rent or interest, the word "rent" extending to all heriots, and to all services and suits for which a distress may be made. It may be observed that prior to this act a surrender, though not appearing on the court rolls, would have been presumed after a long possession, as, for instance, forty years. (1) An ejectment may be brought by a surrenderee, founded Ejectment by on a demise laid subsequently to the surrender, but surrenderee. before the admittance, the latter having relation to the former; (2) and the customary heir may, as before stated, By heir before bring ejectment before admittance. (1) Wilson v. Allen, 1 Jac. & Walk. 620. 1 Watk. Cop. 197, [4th ed.] (2) Holdfast v. Clapham, 1 T. R. 600. Doe v. Hall, 16 East, 208. K admittance. By coparceners and joint te nants. By tenants in common. Possession by coparceners, &c. Legal title will prevail at law. Mandamus to accept surrenders, &c. To admit customary heir. For inspection of court rolls. Coparceners and joint tenants may recover upon a joint or several demise; (1) but in an ejectment by tenants in common, there must be several demises. (2) By the 12th section of the above statute, the possession or receipt by coparceners, joint tenants, or tenants in common of more than their respective shares of land or the profits thereof, or of rent, for the benefit of others than the persons entitled thereto, is not to be deemed the possession or receipt by such persons. Since a court of law cannot entertain the consideration of any equitable interests, the legal title only will prevail. (3) 2. Of the Relief given by the Writ of Mandamus. The Court of King's Bench will frequently interpose by writ of mandamus, and compel the lords of manors to accept of surrenders and grant admittances, on the ground of the parties applying for the writ having no other specific legal mode of redress; (4) an action not being maintainable by the surrenderee against the lord for refusing admittance. (5) And though formerly the writ would not be granted to compel the admission of the customary heir, he having a complete title before admittance against all persons except the lord, (6) yet it has been since held that the writ will be granted for compelling such admission of the heir, since he may wish to be put on the homage, or to surrender. (7) A mandamus will also be granted to (1) Doe v. Pearson, 6 East, 173. Roe v. Lonsdale, 12 East, 39, 61. (3) Doe v. Wroot, 5 East, 132. (4) Vide Roe v. Griffits, 4 Burr. 1961 v. Boughey, 1 Bar. & Cress. 565. (5) Gilb. Ten. 291. (6) Rex v. Rennett, 2 T. R. 197. Rex v. Coggan, 6 East, 431. Rex (7) Rex v. Brewers' Company, 3 Bar. & Cress. 172. Rex v. Wilson, 10 Bar. & Cress. 80. |