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Recovery on warrant of at
to the equitable interest only in tail, it was the prevailing opinion that the same form was to be observed in barring such interest as would have been necessary had the interest been legal. (1)
The recent case of Doe v. Bird (2) decided, that a hustorney of hus- band having such an interest in his wife's copyhold lands
as would enable him to pass them by surrender during their joint lives, a recovery of such lands pursuant to a power of attorney executed by the husband alone would be good.
If in a manor wherein the custom admits of entails, A. Merger. be entitled to an equitable estate tail in a copyhold, and
the legal customary fee afterwards descend upon him, there will be no merger, by reason of the estates not being of the same quality. (3) But if in such case A. accept a surrender from the person in whom the legal fee is vested for the purpose of barring the entail, there will, it seems, be a merger on the ground of intention. (4)
The customary modes of barring entails in copyhold Bar of en lands were in part superseded by the 3 & 4 W. 4, c. 74, tails under 3 & 4 W. 4, which provides for the case of copyholders tenants in tail
seised in their own right, or in right of their wives, or becoming bankrupt, the estate being either legal or equitable. The enactments of that statute will be more fully considered in a future page.(5)
(2.) Of general and special Occupancy: herein of the
enactments in the Statute for the Amendment of the Laws with respect to Wills concerning Estates pur autre vie.
* If, before the recent statute for amending the laws with
respect to wills, a grant had been made to one for the life
Estates pur autre vie.
of another without words of special occupancy, and the grantee had died in the lifetime of the cestui que vie, the lord would have become immediately entitled, and not the executors or administrators of the grantee, (as would have been the case had the property been freehold by virtue of the 29 C. 2, c. 3, s. 12,) since there could be no general occupant of copyhold property, the freehold never being out of the lord. (1) There might, however have been a general No general occupant under the sanction of a custom; so that in the case ex of a grant to A. during the lives of B. and C., a custom tom. for the cestuis que vies and the survivor of them to enjoy the copyhold in the event of the grantee's death during their or either of their lives, without having disposed of the interest by will, has been held good, since it only applies that rule to copyholds, which the law would have applied had the property been freehold, with the additional circumstance of pointing out who the occupant shall be.(2)
But there may be a special occupancy of copyholds; Special occu. so that if there be a grant to one and his heirs for the life pancy. of another, then upon the death of the grantee in the lifetime of the cestui que vie the heirs of the former will take as special occupants. (3).
By the third section of the above statute for the amend- Enactments in ment of the laws with respect to wills it is provided, that the stat. of Wills
respecting espower of disposition by will shall extend to estates pur autre tates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament. And the sixth section provides, that if there shall be no special occupant of any es- ....
tate pur autre vie, whether customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party who had the estate thereof by virtue of the grant; and that if the same shall come to the executor or administrator, either by reason of a special occupancy, or by virtue of the act, it shall be assets in his hands, and be applied and distributed as the personal estate of the tes
tator or intestate. Disposition by As to wills therefore made on, or subsequently to the
1st January 1838, such interest in copyhold estates granted pur autre vie.
for the life of another, with or without words of special occupancy, as would exist should the grantee die in the lifetime of the cestui que vie, may be thereby disposed of. And we have seen what the destination of the property will be in the hands of the executor or administrator in the event of there being no special occupant, or of his taking
as special occupant, or by virtue of the act. Repeal of sta- This statute also repealed the 29 C. 2, c. 3, s. 12, and
tes muere ting 14 G. 2, c. 20, s. 9, respecting estates pur autre vie. estates pur
(3.) Of Remainders vested and contingent : herein of
Words of Limitation, and the rule in Shelley's case; of Surrender to Husband and Wife, and the survivor, and the Heirs of such survivor ; of the disposition of contingent Interests by Deed ; of the support and failure of Contingent Remainders; of the destruction of a Contingent Remainder by enfranchisement ; of the settlement of Copyhold Property; and of Trustees to preserve Contingent Remainders.
Limitations in remainder, either vested or contingent, may be created by surrender.
The nature of a vested remainder is well known ; under a surrender to the use of A. for years or for life, re
mainder to the use of B, in fee, the latter takes a vested remainder; and the admission of A. operates as the admission of B., and so places him in the seisin as to enable him to surrender the remainder to whom he pleases, but not to bar the lord of his fine. (1) It will be remembered that the present capacity of Distinction be
he tween vested taking effect in possession, if the possession were to become vacant, distinguishes a vested from a contingent remainder. remainder. (2)
A surrender to A. for life, remainder to his heirs, or Rule in Shelthe heirs of his body, or to A. for life, remainder to B. for ley's case. life or in tail, remainder to A. and his heirs in tail or in fee, exemplifies the rule in Shelley's case, and the word heirs is a word of limitation : in the former case, the remainder is immediately executed in possession in the ancestor, and is not contingent; and in the latter, it immediately vests in A. as a remainder, and is not contingent; and in both cases the heirs would have taken by descent, and not by purchase. (3)
If a copyholder in fee surrendered to the use of A. for life, remainder to his own right heirs, the latter words would have had no operation, but have left the reversion as it was. (4)
A copyholder of inheritance surrendered to the use of his Limitation to will, and afterwards, on his marriage, surrendered to the right
surrenderor. use of himself and his heirs until the marriage, after the marriage, to the use of himself and his wife during their joint lives, and the life of the survivor, remainder to the heirs of their bodies, remainder to his own right heirs : there being no issue of the marriage, he afterwards disposed of the copyholds by will. It was held, that the limitation to the right heirs was part of his old estate, and
(1) 4 Co. Rep. 22 b. Supp. to Cop. s. 7.
(4) Roe v. Griffits, 4 Burr. 1952. Fearne C. R. 67. But on these points now see 3 & 4 W. 4, c. 106, s. 3, and supra, p. 40.
that as such he was able to devise it by virtue of the sur
render to the use of his will. (1) Estates created A surrender to the use of husband and wife during by surrender.
their natural lives, and the life of the longer liver of them, and after the decease of the survivor to the right heirs of the survivor, has been held to confer vested estates not only for their joint lives, but a vested estate for the life of the survivor, with a contingent remainder in fee to the
survivor, but which remainder was held not capable of · being passed by the surrender of husband and wife, on
which she was separately examined. (2) Freehold con- Previously to the 3 & 4 W. 4, c. 74, a contingent retingent remainder for- mainder in freehold property might have been bound by a merly bound by fine, which operated by way of estoppel during the con
tingency of the remainder, and when the contingency happened, the estate which then became vested fed the estoppel, and the fine passed the estate. (3) .
Fines having been abolished by the above statute, there appear to be no means by which a person, entitled to a contingent interest in an estate, can at law effectually pass such interest by deed. But it seems that an assignment of such an interest for valuable consideration would be
carried into execution by a Court of Equity. (4) Dispositions by With reference to dispositions by married women under married women.
3 & 4 W. 4, c. 74, s. 77, those objects only can be accomplished which might have been accomplished had she
been sole. Support of con. The common law principle, that a contingent freehold tingent remainder. remainder requires the support of a vested freehold es
tate, is not in strictness applicable to copyhold property, that support being given by the ordinary fee-simple, which remains in the lord.
By a surrender to A. for life, remainder to his first son
(1) Thrustout v. Cunningham, 2 W. Bl. 1046. Fearne C. R. 68.