Imágenes de páginas

4. Of Heriots: herein of Heriots payable on the death

of Joint Tenants, Coparceners, and Tenants in Common; of the Increase and Reduction of Heriots; of the Recovery of Heriots, and the Statute of Limitations applicable thereto; and of the Enactment in the recent Statute of Wills respecting the Payment of a Heriot, fc. by a Devisee, where the custom did not admit of the property being devised.


A heriot is a live or dead chattel, or money payment, rendered or paid to the lord on the death of the tenant. In some manors it consists of the best beast the tenant died possessed of, in others of the best dead good, and in others of a money payment; and it is subject to further modifications, as the customs of different manors vary,

but is not of very frequent occurrence. Of two kinds. Heriots are of two kinds, heriot-custom, and heriot

service, the former subsisting by virtue of an immemorial usage, and being paid as well on an estate for life and years, as an estate of inheritance; the latter subsisting by express reservation or prescription, and being seldom re

served upon any less estate than an estate of inheritance. (1) Heriot on alien- By the custom of some manors, a heriot becomes due, ation.

not only on the tenant's death, but also on his alienation,

or on alienation only. (2) Heriot in case Where there are joint tenants of a copyhold, no heriot

is payable until the death of the survivor, they together

making but one tenant to the lord : such is also the case Coparceners. with respect to coparceners, they also constituting but one

tenant, though there be no survivorship: but as tenants in Tenants in common have several estates of an entire tenement, a

of joint tenants. :

[ocr errors]


[ocr errors]



heriot is payable on the death of each of them. (1) When Diminution of however these several estates re-unite in one person, the her heriots which were payable whilst the estates were divided will cease to be payable after the estates are so re-united, and the tenement will be subject to one heriot only. (2)

So if part of a tenement subject to a heriot be aliened, the same will become liable to a heriot; but several heriots will not continue payable after a re-union of the parts in the same owner.

On the death of a widow entitled to free-bench, and a Heriot on death husband entitled to curtesy, a heriot becomes due to the te

at hocamos due to the of widow, and lord, they both holding immediately of him, and conse- curtesy. quently there is a change of tenancy. (3)

A heriot is also due on the death of a reversioner, he Of reversioner. being in the seisin, though not in the actual possession.(4)

Heriot-custom is recoverable by seisure or action, Remedies. heriot-service by seisure, action, or distress ; (5) and heriots Limitations. are subject to the above statute of limitations, 3 & 4 W.4, c. 27, being comprised under the word "rent.”

When before the recent statute of wills, 1 Vict. c. 26, Heriots, &c. the custom did not admit of the legal estate in copyhold payable by de

visee under reproperty being disposed of by will, the fifth section pro- cent statute of

wills. vides that the same fine, heriot, dues, duties, and services shall be paid and rendered by the devisee, as would have been due from the customary heir in case of a descent.

[ocr errors]


1. Of the Assurance by Grant and Surrender: herein

as to Surrender by Attorney, and of the rules of construction applicable to, and the interests created 'by a Surrender.

Copyholds for lives and of inheritance. Grant.


ince, and the the lord beine latter pass

Custom as to tenant for life.

As already observed, copyholds are held of some manors for lives only, of others they are held for estates of inheritance; the former pass by grant, or by surrender to and re-grant by the lord, the grantee taking immediately from the lord; while the latter pass by surrender and admittance, the lord being only the medium of assurance, and the tenant on admittance being technically said to be in, not by the lord, as in the former case, but by the surrenderor; though an admittance on a surrender may be pleaded as'an immediate grant from the lord. (1)

It appears that in most, if not in all manors in which the copyhold tenant holds for his own life, there exists a custom enabling him to transfer his interest during his own life to another; and that in many manors the tenant has by custom a right to nominate his successor. (2)

The customary medium for the transfer of copyhold property from one tenant to another, or from a tenant to a stranger, for an interest either in possession, remainder, or reversion, is a surrender, by which the property is surrendered into the hands of the lord, to the use of the person intended to take. It is usually accompanied by the delivery of some article, as a rod, &c., by the surrenderor to the steward or person taking the surrender in the name of seisin. (3)



(1) 4 Co. Rep. 22 b.
(2) Gilb. Ten. 256.
(3) Co. Litt. 61 a. Co. Cop. s. 36, 39.


In the absence of custom, the surrender must be made How made. into the hands of the lord, the steward, or his deputy; but custom may warrant its being made in other modes, as into the hands of two tenants. (1) A surrender may be made either in person, or by at- In person or by

stum attorney. torney, (2) though a surrender by force of a special custom, or in exercise of a bare authority, cannot be made by attorney: (3) but a purchaser is not compellable to accept of a surrender by attorney, unless an actual necessity for it appear: (4) and a Court of Equity will compel a vendor, coming for its aid in a sale, to surrender in person, if it can be conveniently done. (5)

A surrender is said to be subject to the same rules of Rules of conconstruction as a common law assurance;(6) and the better opinion would seem to be, that by the words “equally to be divided” in a surrender, a tenancy in common will be created. (7) And though, at the time of the surrender, the surrenderee be not in esse, or not capable of a surrender, yet if he be in esse, and capable at the time of admittance, it is sufficient. (8) Contingent remainders may contingent rebe limited by a surrender, and limitations created by it mainders. may be susceptible of the application of the rule in Shel- Shelley's case. ley's case; and though words of limitation are necessary to create an estate of longer duration than for life, yet custom will authorize the creation of an estate of inheritance by words, which would not have that effect in a common law assurance. (9)


(1) Co. Litt. 59 a. 1 Watk. Cop. 103, [4th ed.]
(2) Supp. to Cop. s. 3.
(3) Co. Cop. s. 34.
(4) Mitchel v. Neale, 2 Ves. Sen. 679.
(5) Noel v. Weston, 6 Mad. 50.
(6) 1 P. Wms. 77. Wright v. Kemp, 3 T. R. 470. Co. Cop. s. 49.
(7) 2 Ves. Sen. 257. 1 Watk. Cop. 138, (4th ed.], and n.
(8) Co. Cop. s. 35.
(9) 4 Co. Rep. 29 b. 1 Watk. Cop. 134, [4th ed.]

2. Of the Surrenderor : herein of the interest of the

Surrenderor; of the effect of a Surrender; of Surrender by unadmitted Heir, by Joint Tenant, by Infant, by Husband and Wife entitled in' her right, by Feme Covert alone, by Tenant in tail, by Husband to use of Wife, and by Feme Covert not being Tenant in tail.

Interest of sur- To the effectual operation of a surrender, it is essential renderor.

that the surrenderor have a vested interest either in pos

session, remainder, or reversion, or in other words, that Contingent in- he be in the seisin, for the surrender of a contingent interest.

terest or an expectancy passes nothing, neither does it Surrender no estoppel. operate as an estoppel. (1)

· A surrenderor does not by the bare act of surrender

divest himself of the legal estate in the copyhold, but the Admittance of same remains in him until the admittance of the sursurrenderee.

renderee: (2) and if on a surrender all the interest of the copyholder is not disposed of, the residue remains in him

as part of his old estate. (3) Estate by pur. It is observable however, that the third section of the chase under

recent statute for the amendment of the law of inheritance 3 & 4 W. 4, c. 106. has enacted, that when any land shall be limited by any as

surance executed after 31st December, 1833, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser by virtue of such assurance, and shall not be considered to be

entitled thereto as his former estate or part thereof. Surrenderee A surrenderee cannot surrender before admittance, before admittance.

(1) 1 Ves. Sen. 230. Goodtitle v. Morse, 3 T. R. 365. Doe v. Tomkins, 11 East, 185. 1 Watk. Cop. 265, [4th ed.]

(2) Rex v. Mildmay, 5 Bar. & Adol. 254.

(3) Thrustout v. Cunningham, 2 W. Bl. 1046. Fearne's Cont. Rem. 68. Roe v. Griffits, 4 Burr. 1960. Watk. Desc. 259.

« AnteriorContinuar »