but a general devise would not have been an
execution of a power, if the testator had
other lands to satisfy the words
an interest will pass by a general devise, though
the will should be a defective execution of a
power, and such a devise was held to be
aided by 55 Geo. 3, c. 192

252

253

by s. 27 of 1 Vict. c. 26, a general devise of
real estates will include estates which the
testator may have a power to appoint, 252, n.
equity would have directed an inquiry whether
there was anything but copyhold to answer
the devise
ib.
the rules in freehold cases as to words of re-
commendation, and exclusive dispositions
under powers, apply to copyholds, 252, 253
the courts incline to annex the legal to the equi-
table estate
in deciding whether trustees took the fee, the
courts have been influenced by the purposes
of the trust, and by the copyhold being in-
termixed with other property of which the
trustees had the fee
ib.
by s. 30, of 1 Vict. c. 26, a devise to a trustee
or executor will pass the fee or whole estate
of the testator, unless a definite term or es-
tate be given expressly or impliedly 253, n.
by s. 31, trustees take a fee, when the trusts
may continue beyond the life of a person to
whom a beneficial interest is given
effect of the words "to be transferred" in a
devise of copyholds to trustees
253
the case of Chapman & Prickett in C. B.
254, &c.
equity gave effect to a direction in a will that
the testator's copyholds should be sold, with-
out saying by whom, the copyholds having
been surrendered to the uses of the will, 257
but the heir need not have joined in the sale,
when the power was given to executors, &c.
ib.

ib.

DEVISE-(continued.)

the word" farms" may include copyhold where
the testator has a farm partly freehold and
partly copyhold let as one entire property,
Pages 259, 260
prefatory words will sometimes, but not always,
influence the subsequent clauses .. 260
the courts incline to a construction in favour of
creditors, and therefore to apply prefatory
words to other parts of the will .. 266
the courts incline to refer the words "survivors
and survivor" to the period of the testator's
death ..
. 260
case of a devise to the child with which the
wife was supposed to be enceint, remainder
over, but the wife was not with child.. 261
the divesting of an estate once vested is not
favoured
260, &c.
devise to an unborn person for life is good,
but a limitation over to his issue is too remote
262
effect of the word "heir" in the singular
number, with or without engrafted words of
limitation

ib., 263
the words "heirs of the body" may be words
of purchase

263
observations on the case of Jesson & Wright,

ib., 264
a word of purchase is construed as a word of

limitation when used to denote a class..264
a devise over on death of a devisee for life
without issue, creates an estate tail.. ib.
a devise over on a general failure of issue of a
previous devisee in fee, would explain the
word "heirs" to mean heirs of the body,
ib., 265

prior to 1 Vict. c. 26, a devise over in case of

death without issue, or without leaving issue,
equally imported a general failure of issue, 265
reference to s. 29 of 1 Vict. c. 26, excluding
the construction of an indefinite failure of
issue in any devise, unless a contrary inten
tion manifested
ib. n.
and to s. 32, to prevent a devise for an estate
tail from lapsing, if issue inheritable be living
at the testator's death
and to s. 33, to prevent a devise or bequest to
children or other issue of the testator from
lapsing, if the devisee or legatee leave issue
living at the testator's death

ib.

ib.
the words " without issue" and "without
leaving issue" equally import a general

failure of issue

265

where a devise shall be construed a condition,
and where a limitation
ib.

a customary heir might have devised before
admittance, after the act of 55 Geo. 3 (the
case of King & Turner overruled by Right
& Banks; and see King & Turner, on
appeal)
266, 267
by the wife under an agreement before mar-
riage, will give her devisee a good title in
equity
a devise to A. to dispose of at his will and
pleasure, or to dispose of by will, gives an
absolute interest; so a devise to a wife and
her heirs, to enjoy for her life, and to dispose
of the property by will
267, n.

..

267

DEVISE continued.

when an express estate to another intervenes
between a devise for life and a general power
of appointment, the estate for life is en-
larged
Page 267, n.
of an equitable interest in copyholds might
have been by an unattested will 267
contrary as to a trust of customary freeholds,
268, n., 569

..

if the intention was clear, a general devise of
all real estate would have included the trust
of copyholds, even if the testator had the
legal interest in other copyholds.. 267, 268
a purchaser has a devisable interest before ad-
mittance
ib.
but a devisee had not
268, 269, and n.
by the 3d sect. of 1 Vict. c. 26, a person en-
titled to copyholds or customary holds as heir,
devisee or otherwise, may devise though not
admitted
268, n., 274, n., 293, n.
but prior to 1 Vict., a devise by an unadmitted
devisee was not good, though he took ad-
mission subsequently
293, n.
semble, that even prior to 1 Vict. c. 26, and
with a custom compelling remainder-men to
be admitted, an unadmitted devisee in re-
mainder who died in the lifetime of tenant
for life (and also his devisee) had a devisable
interest in equity
269, n.
was not revoked by admittance under a sur-
render by way of settlement, limiting the
reversion in fee to the devisor, and made
previously to the surrender to will
was supported by a surrender to will made
previously to a surrender to uses, limiting
the reversion in fee to the devisor
but a devise was revoked by conveying the
estate away, even if taken back again the
same day

..

269

ib.

ib.

ib.

270
269, 270

and will be revoked in equity by an agreement
to convey
but not when a surrender pursuant to the
agreement would not have produced a change
in the estate of the testator
the case of Vawser & Jeffery
a devise made pursuant to an equitable power,
but after acquiring the legal fee, was re-
voked by a surrender to a purchaser, though
the surrender could not in equity have been
deemed an execution of the power .. 271
a refusal to act by one devisee in trust, vests
the whole legal interest in his co-devisees, ib.
was not revoked by accession of the legal
fee
the courts leant to a partial revocation only,
where the intention was doubtful
ib.
the case of Hicks & Doe (confirmed by the
House of Lords, see 8 Bing. 475)
ib.
was revoked by marriage and the birth of a
child, but not by either of those events alone,
273, 274
and the implied revocation might have been
rebutted by parol evidence
274, n.
reference to the judgments of Sir George Lee
in several cases of implied revocation ib.
is not revoked by bankruptcy

272

274

lapsed by the death of the devisee in the tes-
tator's lifetime
ib.

the rule that the heir took any interest undis-
posed of by the ancestor by descent, applied

DEVISE-continued.

equally to a devise to the heir with an exe-
cutory devise over, and to a devise from the
heir upon a contingency
Page 275
the contrary opinion shown by a MS. note of
Serjeant Hill to have been founded on an
erroneous interpretation of the case of Scott
& Scott ..
.. 275, 276, n.
but under a devise to the heir for a particular
estate, with remainders over, and under a
devise to him and a stranger as joint-tenants,
&c., the heir takes by purchase
when intermediate rents pass by a general re-
siduary devise, or go to the heir

DOME-BOC, or Alfred's register or code of
Saxon laws. See LEET.
Page 673
DOMESDAY AND DOMESDAY BOOK, sup-
posed to be a corruption of Dome Boc. 581
DOMESMEN. See LEET.
.. 672, n.
DOVE-COTES; formerly held that they could be
erected by the lord of a manor, and perhaps
by the parson of a parish, though the erection
of a dove-cote by a private person would be a
nuisance presentable in leet; but the autho-
rities have been overruled, or rather denied,
734, n.

See LEET, s. 5, Articles inquirable there.
DOWER. See CUSTOMARY PLAINTS; FREE.

EJECTMENT; title to copyholds may be tried
in action of
464

by 3 & 4 Will. 4, c. 27, must be brought
within twenty years after the right of entry
accrues, whatever be the nature of defend-
ant's possession .. 464, n.; App. 1028, n.
but may be brought within ten years after the
removal of the disabilities mentioned in the
464, n., 471, 472, n.
semble, that lessee for years of copyhold can
maintain ejectment without alleging a custom,
or showing a licence
464, &c.
although the defendant need not show a title

act

in himself, yet he must prove a subsisting
title out of the lessor
466

and if he came in under the plaintiff's title, he
could not dispute it

ib.

ib.

ib.

but he might show that the title had ex-
pired
where the tenant entered under the plaintiff's
title, and merely paid rent to the lord after
seizure for a forfeiture, without formally re-
nouncing the title of the plaintiff, held in an
action for use and occupation that the de-
fendant could not controvert the continuance
of the plaintiff's title
it can only be maintained under a common law
demise
ib.
a surrenderee may recover upon a demise laid
between the time of surrender and admit-
tance
142, 293, 466, 467
it is sufficient if the admittance take place at
any time before trial
466, 467
the doctrine applies equally to a purchaser and
mortgagee

..

467

may be brought by customary heir before ad-
mittance

ib.

ib.

not requisite that he should be presented as
heir
may be brought by the grantee for life in a
reversionary copy, on the death of the life
named in the original copy, without admit-

tance

ib.

EJECTMENT-continued.

a person cannot recover on an equitable title,
even against his own trustee .. Page 467
in Doe & Wroot, the heir of the mortgagor,
who had not surrendered to will, recovered
in ejectment against his devisees, their title
being in equity, Lord Ellenborough observ.
ing, that the doctrine that the legal estate
cannot be set up at law by a trustee against his
cestui que trust had been repudiated, 467,468
a widow, claiming by the title of freebench,
cannot dispute the title of the lord by whom
her husband was admitted

468
held in one case that ejectment did not lie by
a dowress for a third part of copyhold, but
that the remedy was by plaint, and the
homage to sever and set out the same ib.
but see reference to the case of Doe d. Rose
Riddell v. Gwinnell, in which however a
special custom was shown, entitling the wife
to a portion of the copyhold in nature of
dower
78, n., 134, n.
how to be brought by tenants in common, joint-
tenants and coparceners
468
service on one of several joint-tenants held to
be sufficient
ib., n.
by 3 & 4 Will. 4, c. 27, the possession of one
coparcener, joint-tenant or tenant in common,
is not the possession of the other or others, ib.
in ejectment by a tenant in common against
his companion, he must have given evidence
of an actual ouster, or produced the usual
consent rule

and an ouster might have been presumed from
ib.
long uninterrupted possession
the legal title held to be a defence, though
twenty years' possession had run against the
defendant before he took possession.. ib.
it is not sufficient for the plaintiff to show that
he is the lord of the manor, in an ejectment
against a copyholder who has been in pos-
session of mines for twenty years .. 470
the rule is applicable to cottages built on the
waste, unless the possession is shown to
have been permissive
ib. n.
held not to lie by a purchaser, under the con-
tract and certificate of the Commissioners of
Woods and Forests, where waste land had
been inclosed without licence more than
twenty years before the conveyance by them,
35, 470, n.
as the statute of limitations supposed an adverse
possession, a copyholder might enter within
twenty years after the expiration of an ex-
isting lease
.. 470
the effect of the ten years' clause in the stat. of
21 Jac. 1, c. 16
471
by the act of 3 & 4 Will. 4, c. 27, an entry
must be made within twenty years after the
right first accrued (s. 2); but persons under
disability of infancy, &c. may enter within
ten years after the disability has ceased,
(s. 16); if however the party die under the
disability, no further time is allowed because
of the disability of any other person (s. 18);
nor can an entry be made after forty years,

EJECTMENT-continued.

although the party should have remained
under a disability during that period, or the
ten years from the cessation of the disability
or the decease of the party should not have
expired (s. 17) Page 471, 472, n., App. 1028
reference to the 3d, 4th and 5th sections, ex-
planatory of the period when the right shall
be deemed to have accrued
472, n.
by the lord, barred by an uninterrupted posses-
sion of a building on the waste for twenty
years
509, n.
See ENCROACHMENT; ESCHEAT; NOTICE TO
QUIT; SEIZURE.

..

278

ELECTION; doctrine of (viz. that a person
taking beneficially under a will must abide
by it in toto) extends to copyholds 277
reference to a note on its nature and origin, ib. n.
the principle is compensation, not forfeiture
282, n.
and where the intention would not have been
sufficiently manifest for the purpose of sup-
plying a surrender to will prior to the act of
55 Geo. 3, it would not be so for the purpose
of raising a case of election
circumstances dehors the will ought not to be
admitted to show the intention
ib.
case of the heir of the widow of a copyholder
not being bound to make out the fact of the
widow's election to continue a mortgage as
a charge on the realty
49, n.
case of an exchange of copyholds after the date
of the will, and the co-heiresses put to their
election
277
case of an enfranchisement by the heir (who
was also devisee for life of an estate not sur-
rendered by the ancestor to the use of his
will), and bill by remainder-man against the
devisee of the heir for a conveyance of the
enfranchised estate
ib.
case of a devise to the widow for life, where
the estate had not been surrendered to will,
and the heir put to his election
278
there must be clear evidence of intention, and
a general residuary devise, without a sur-
render to will, would not have raised a case
of election
.. ib.
whether the rule would have held after the act
of 55 Geo. 3, c. 92
278, n.
whether a general devise of all freehold and
copyhold estates of which the testator should
die possessed, would have created a case of
election against the heir as to after-purchased
lands
case of disposition of estates not devisable, and
the heir put to his election with reference to
other property devised to him
ib.
case of a devise including intailed lands, and
the heirs put to their election
case of a general devise in trust for a son for
life, with remainders over, and the father
legally and beneficially entitled to certain
copyhold lands, but only equitably entitled
for life to other copyholds, with remainder
to the son in tail

279

480

ib.

the doctrine does not apply to creditors .. ib.
is not binding if made under a mistaken im-
pression; (exemplified by the case of Rum-

VOL. II.

ELEGIT; by 1 & 2 Vict. c. 110, the entirety of
copyhold and customaryhold land is exten-
dible
47, n., 301, n.
See FINE.

ELEGIT, WRIT OF. See EXTENT.
EMBLEMENTS as between the lessee of a
tenant for life and the remainder-man, 534, n.
See FORFEITURE; FREEBENCH.
ENCROACHMENT; reference to Doe v. Mur-
rell, confirming the rule that an encroachment
by a tenant is for the benefit of his lessor
506, n.
a case where the father's occupation did not
prevent the descent, but the heir barred by
the widow's occupation for twenty years, ib.

..

ENFRANCHISEMENT; reference to 56th
section of the Commutation and Enfran-
chisement Act (4 & 5 Vict c. 35), empow-
ering lords of manors seized for life, or other
particular interest only, to enfranchise copy-
holds as if seized in fee; and to the directions
and powers of the act as to the investment of
the consideration money 550, 551, n.
general reference to the clauses regarding en-
franchisement, especially the provisions in
cases where payment is deferred by the com-
missioners
ib.
and in cases where copyholders are seized for
life, or other particular interest only, 551, n.
and where the enfranchisement shall be effected
by a schedule of apportionment
ib.
reference to the provisions for charging enfran-
chised lands with the consideration money, ib.
and to the powers given to persons having a
limited interest only in the manor or land, to
charge the same with the costs in relation to
the enfranchisement
ib.
is a conversion of copyhold into freehold te-
nure, by a conveyance of the fee of the par-
ticular tenement to the copyholder, 550, 551
a person admitted and recognised as the lord's
tenant, though he should have an equitable
interest only, may receive a grant of the
freehold
551

ENFRANCHISEMENT-continued.

a conveyance by a grantee of the freehold in-
terest is equally an enfranchisement

..

553

ENFRANCHISEMENT-continued:
releases of commonable rights under an agree-

ment not acted upon, will be decreed in
equity to be cancelled .. Page 556, n.
under an allotment of freehold land to a copy-
holder, the tenure is not changed, except by
legislative enactment
557

the allottee therefore had a vote at an election
for the county, even prior to the act of 2
Will. 4, c. 45

ib.
reference to that act
558, n.
since the statute of quia emptores, services
cannot be reserved on an enfranchisement

ib.

even against the crown

Page 551, n.
whether a release to the copyholder of all seig-
nioral rights, without words amounting to a
conveyance of the reversionary freehold in-
terest, operates as an enfranchisement, or
only as a contract for an enfranchisement, 552
whether an ordinary enfranchisement operates
as a merger, so as to accelerate the charges
upon the manor
ib. n.
it behoves a copyholder treating for an enfran-
chisement to ascertain the lord's title to the
fee, as the whole copyhold interest is merged
by a conveyance of a portion of the freehold
552, 553
a contract for sale of an estate as freehold which
turns out to be copyhold, cannot be enforced
in equity, should the vendor not be able to
procure an enfranchisement
the enfranchisement must be in the copyholder's
own name, or the copyhold interest will still
subsist
so as to drive the purchaser into equity for
relief against proceedings at law
ib.
enfranchisements under powers call for particu-
lar attention in this respect
by the particular tenant, is for the benefit of all
in remainder
and his heir or devisee compellable to convey
the legal freehold, on payment of a due pro-
portion of the purchase money
but a remainder-man would have no equity
against a tenant in tail in possession..ib., n.
the principle confirmatory of the case of Croft &
Lyster, decided in 1675, where husband and
wife were seized of a copyhold for their lives,
remainder in fee to the wife
554
the case of Doe & Jackson, in which the wife
had been admitted in fee, and the husband
took a conveyance to himself in fee by the
words grant, enfeoff, &c., with livery, and
it was held that the deed operated as an en-
franchisement before livery, so that the course
of descent was not altered
554, 555

..

ib.

554

ib.

558, n.

558

558, 559

See COMMUTATION AND ENFRANCHISEMENT
ACT; RENT.

ENTRY; may be made upon copyholds where
the original entry of the wrongdoer was un-
lawful
46, 475
and was not tolled by descent (see also 3 & 4
Will. 4, c. 27, s. 39)
475
for forfeiture must be within twenty years 453
in order to satisfy the statute of limitation of
21 Jac., or to avoid a fine levied by disseisor
of copyholds, an action must have been
brought within one year after entry 475,476
is no longer equivalent to possession (3 & 4
Will. 4, c. 27, s. 10)
App. 1027

restitution of possession by justices, &c., under
21 Jac. 1, c. 15
475, n.
See WRIT OF ENTRY; ESCHEAT (as appli
cable to freeholds).

EQUITABLE INTEREST; the right to dis-
pose of by will, cannot be controlled by

24, n.
210

in copyholds, how to be conveyed
was always devisable without surrender to
will
215, 216
is embraced in the Statute of Wills, 1 Vict.
c. 26
268, n.
See DESCENT; DISCONTINUANCE; EQUITY
OF REDEMPTION; ESCHEAT (as applica
ble to freeholds); ESTATE TAIL; FOR
FEITURE; NON ADVERSE POSSESSSION;
WRIT OF ENTRY.

EQUITY. See COURTS OF EQUITY; LORD OF
THE MANOR; TRUST ESTATES; TITLE
DEEDS.

EQUITY OF REDEMPTION; may be re-
leased to surrenderee after admittance 195
but cannot, properly, be extinguished by sur-
render
ib.
is the subject of surrender to will, when the
mortgagee has not been admitted 215, 216
contra if he has been admitted
ib., 268
if the mortgagee conveyed subject to the equity
of redemption, semble that it might have been
kept alive for an indefinite period 407, n.