against the same persons: (1) but it seems a surrender would not have been supplied against the customary heir, nor against a grandchild, being the heir, unless otherwise provided for. If, before the 55 G. 3, c. 192, dispensing with a surren- Operation of der to will, a person, having both freehold and copyhold general devise before 55 G. 3, lands in A., had, by a will duly attested to pass the former, c. 192. devised all his lands, or all his real estate in A., and had not surrendered the copyholds to the uses of his will, the freehold lands only would have passed, and the surrender would not have been supplied in favour of a wife or child: had there been such a surrender, the copyhold lands would also have passed, the intention to pass them being manifested by the surrender: had the devise been for payment of debts, and no surrender made, and the freeholds proved insufficient, the copyholds would also have passed, and the surrender been supplied Surrender supin favour of the creditors, though not in favour of a wife plied. or child. (2) Will not com petent to pass freeholds. Further, if a testator, entitled both to freehold and copyhold lands, had made a general devise of all his property by a will not competent to pass the freeholds, and there was no surrender to will, the copyholds would not have passed, nor would the surrender have been supplied as against the heir in favour of another child to whom the devise was made. (3) Again, if before the statute supplying the want of a Payment of surrender, a testator having both freehold and copyhold estates, and having surrendered the latter to the uses of his will, had charged his real estates generally with the payment of his debts, they would have been raised out (1) Rodgers v. Marshall, 17 Ves, 294. (2) Drake v. Robinson, 1 P. Wms. 443. 322. Chapman v. Hart, 1 Ves. Sen. 273. Haslewood v. Pope, 3 P. Wms. Lindopp v. Eborall, 3 Bro. C. C. 188. Wentworth v. Cox, 6 Mad. 363. Doe v. Bird, 5 Bar. & Adol. 695. 1 Watk. Cop. 174, [4th ed.] (3) Sampson v. Sampson, 2 Ves. & Bea. 339. debts. Erroneous statement as to surrender. Surrender to will the cri tion. of those estates rateably according to their respective value and it would seem that the debts must now be borne in the same manner. (1) Cases have occasionally arisen, where the question has been, how far an erroneous statement as to the surrender would prevent copyholds devised from passing. (2) Although a surrender to will was dispensed with by the terion of inten- statute, it might nevertheless, if actually made, have been the means of indicating an intention to include copyhold property under a description which would have otherwise rendered it doubtful whether the same passed. (3). After 55 G. 3, c. 192, copyholds might pass under Since, when a surrender to will was necessary, copyhold lands would not have passed under words of general devise capable of being satisfied by confining them to general devise. freeholds, unless such surrender had been actually made, it remained to be seen whether, when a surrender was no longer necessary, the copyholds would, under the like circumstances, be held to have passed. The point lately arose in a case before the Court of Common Pleas, by which it was in effect decided, that if one, having both freehold and copyhold lands, devised them by words which would be satisfied by applying them to the freehold lands, the copyhold would nevertheless pass, though the same had not been surrendered to the uses of the will, such surrender having been supplied by the statute. In this case the will was attested by two witnesses only. (4) (1) Growcock v. Smith, 2 Cox, 397. (2) Oxenforth v. Cawkwell, 2 Sim. & Stu. 558. (3) White v. Vitty, 2 Russ. 484. Weigall v. Brome, 6 Sim. 99. arising from the absence of a surrender, the presumption, namely, that the copyholds should not pass. The statute, therefore, supplied the intention which had been before supplied by the surrender. It is observable that the words of the statute were, Words of sta every disposition or charge made, or to be made by tute. any such last will and testament, by any person who shall die after the passing of this act;" so that if a will, made before the statute, contained an express or implied devise of copyholds, and there had been no surrender of the same to the uses of the will, and the testator had died after the passing of the statute, the same would have applied to such a case. (1) The 26th section of the recent statute has now enacted, that a devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a customary, copyhold, or leasehold estate, if the testator had no freehold estate which would be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will. Operation of general devise under Statute of Wills. perty. It follows, therefore, that as to wills made upon or after the 1st day of January, 1838, freehold, copyhold, and leasehold estates may pass under words of general devise. With respect to leasehold estates it may be observed, Prior state of that, according to the prior state of the law, if a person, the law as to leasehold proentitled to lands in fee and lands for years, had devised all his lands and tenements, the fee-simple lands only would have passed, and not the lands for years; but that if a person, having lands for years only, and not in fee, had devised all his lands and tenements, the lands for years (1) Vide 5 Bar. & Adol. 713-14. would have passed, since the will would otherwise have been inoperative. (1) Devise to trustees. As to the supplying a surrender to will in the case of a power to sell. 6. Of the Interest Devised and Created, and the Devisee: herein of Powers to Sell; of Devise to Customary Heir, and the Effect thereon of the Statute for Amending the Law of Inheritance; of the Enactments in the recent Statute of Wills with reference to a residuary Devise, the meaning attributable to certain Words, and the Fee passing without Words of Limitation; of the Interest taken by Trustees under Wills, and the Enactments with reference to a Devise to a Trustee or Executor, and the Death of a Devisee in tail, or of a Child or other Issue of Testator, (being a Devisee or Legatee,) in Testator's Lifetime. A direct devise of copyholds to trustees upon trust, will render their admittance necessary after the testator's death, and upon such admittance a fine will of course become payable. It is competent, however, to a testator, whose intention it is that his copyhold property should be sold, to give his trustees or executors a power to sell the same, without giving them any interest therein, in which case their admission will be unnecessary, and the fine saved. (2) It might be considered doubtful whether, in the case of a bare power being given to executors to sell, without a previous surrender to the uses of the will, the want of a surrender would have been supplied by the 55 G. 3, c. 192. That statute rendered valid every disposition or charge (1) Rose v. Bartlett. Cro. Car. 293. Thompson v. Lawley, 2 Bos. & Pul. 303. Dixon v. Dawson, 2 Sim. & Stu. 327. Hobson v. Blackburn, 1 Myl. & Keen, 571. (2) White v. Vitty, 2 Russ. 496. of copyholds, or of any interest therein, made by the will of a copyholder, authorised by custom to dispose of or appoint his copyhold tenements by will, although no surrender had been made to the use of the will. Now it is conceived that a copyholder, authorized to dispose of or appoint his copyholds by will, was authorized to appoint that the same should be sold by his executors, and that this would be such a disposition as the statute would have rendered valid without a previous surrender. If there had been a devise to the customary heir of the same estate which he would otherwise have taken by descent, he would have been held to take by descent as his better title, and not by purchase; and though an executory devise of the fee had been engrafted on the devise of the fee to the heir, or the estate had been subjected to debts, he would nevertheless have taken by descent. (1) The 3rd section of the statute for the amendment of the law of inheritance has enacted, that when any land shall be devised by a testator dying after 31st December, 1833, to the heir, or to the person who shall be the heir of such testator, such heir shall be considered to have acquired the land as a devisee, and not by descent. who According to the prior state of the law, a residuary devise would not comprise an estate devised to a person died in the testator's lifetime: but it might comprise property, the specific devise whereof was contrary to law, or incapable of taking effect. (2) Prior state of the law on a tomary heir. devise to cus Enactment in 3 & 4 W. 4, c. 3, respecting devise to heir. Prior state of law as to re siduary devise. A residuary bequest of personal estate, with the opera- Operation of residuary betion of which the new statute does not interfere, com- quest. prises every thing not effectually given by the will, whether it happen by the death of a legatee, or the remoteness and consequent illegality of a bequest. (3) (1) Chaplin v. Leroux, 5 Mau. & Sel. 14. Doe v. Timins, 1 Bar. & Ald. 530. Manbridge v. Plummer, 2 Myl. & Keen, 93. Wood v. Skelton, 6 Sim. 176. (2) Doe v. Sheffield, 13 East, 527. Page v. Leapingwell, 18 Ves. 463. (3) 2 Mer. 392, in Leake v. Robinson. |