Dower. Estate by of England. disposed of by her husband in his life time, or by his will; (g) and a priority is to be given to partial estates charges, and specialty debts of the husband, as against the right of his widow to dower; (h) and, the husband may by a declaration in any deed of lands conveyed to him, or by any deed executed by him, signifying that his widow shall not be entitled to dower, bar her of the same,(i) or he may do so by a declaration in his will to that effect;() and the dower of the wife will be subject to any other restriction declared by the testator in his will;(k) also a devise of any real estate to the widow by her husband will bar her of dower;(7) but a bequest of personal estate will not bar her of dower, unless so declared. (m) If the husband has agreed not to bar the dower of his wife, the undertaking will be enforced by a court of equity.(n) A tenant in dower is liable to an action for waste and to forfeiture.(0) TENANCY by the curtesy of England, is a the curtesy freehold estate, and arises where a man marries a woman that hath an estate, either by descent or purchase, and hath a child born alive by her,(p) and then the woman dies the husband shall enjoy the land') during his life, and is called tenant by the curtesy of England. The wife must be seized in fee simple or fee tail.(r) Sections of the dower act. Marriage. Seisin. There must be an actual seisin in deed, as a seisin in law is not sufficient. And by sec. 12. legacies given in bar of dower, are still entitled to preference. (0) Lit. s. 35. (p) To entitle the husband to curtesy, (which is defined to be the estate or the husband in the lands of the wife,) there must be a valid and canonical marriage, and the husband must have issue by his wife born alive, during coverture. Curtesy will arise on an equitable estate as well as on a legal estate. Co. Lit 29. [A] (4) The inheritance must be such, that the issue of the wife by the husband may by possibility succeed to the estate as heirs. (r) Either the wife or the husband in her right must be actually seized of the estate; a seizin in law will not suffice, except when the nature of the thing will not admit of a seizin in fact, as in the case of advowsons, unless a vacancy occurs during coverture. See ii. 3 Prest. on Ab. 380—1. A tenant by curtesy is liable to an action for Action for waste and to forfeiture. waste. terests. A freehold may arise by means of an entry on Freehold inland under powers of distress, and entry made, on a grant of an annuity in fee, by virtue of a conveyance, operating under the statute of uses; that is, a conditional inheritance determinable upon payment of the rent; and, until entry made, the right of entry is in the nature of a contingent or future use, to arise on non-payment of the rent, and will pass with a grant of the rent. (s) AN ESTATE for years, as also the estates by of chattles elegit; at will; and at sufferance, are called chat- real. tels real, usually termed interests in lands or tenements, being lesser in quantity and quality of estate than those of freehold. A TENANT for years is, when lands or tenements Tenancy for are given, granted, or demised to a man for years, years. or for term of years, or for a longer or shorter period, and may be considered as a contract or agreement between a lessor and lessee,(t) for the possession and profits of lands and tenements for a certain rent and recompense. If the term(u) be granted to begin at a future day, it is called interesse termini.(o) This estate is transmissible to the personal representatives of the tenant, who are entitled to it upon the same terms in regard to the landlord as the original lessee. Tenant for years as well as a tenant for life is Incidents to entitled to estovers, and, when the term is limited, (s) See Havergill v. Hare, Cro. Jac. 510. (1) Every tenancy of a definite duration may be considered as term, and of the nature of a term of years, though for a less period than a year. Lit. 67. See Doe v. Rosse, Barn. and Ald. 766. a Term. An estate for years may be created without deed even by parol, pro- How created vided the agreement be reduced to writing, and entry made on the lands; but, if the lessor have only a reversion, then a deed will be requisite, for a reversion cannot be passed without grant, and a grant requires a deed. See 2. Prest. on Abs. 1, 19, 80. In the creation of a term for years, the commencement and duration of the term must be definitively marked, either in express terms or by manifest construction. Ib. 20-(see leases.) Doe v. Porter, 3. T. R. 13. Rex v. Stone, 6. T. R. 298. (u) The word term, signifies commonly the limitation of time or estate; as a lease for term of life or years. Brac. lib. 2. (r) A term of years must be perfected by an actual entry on the land, Entry on and, until then, it is called an interesse termini, or an interest in a term. land. for years. a tenancy to determine on the happening of a collateral event, the lessee or his personal representatives, are, when it so determines, entitled to emblements; and, with respect to waste and forfeiture, the same doctrine is applicable to a tenant for years, as a tenant for life. Tenant by elegit. Estate at will. Emblements. A TENANT by elegit is, when a man has recovered a debt or sum of money by judgment in a court of record, he may choose to have execution of a moiety of the debtor's lands, which by a writ is delivered to him by the sheriff, at an extended yearly value set by a jury, to hold the same till the debt be paid; and then, because so much a year will pay the debt in a certain time, he is considered a tenant for years, and his interest is transmissible to his personal representatives. A TENANCY at will originates by the mutual agreement and depending upon the concurrence of both parties, and is, where lands or tenements are let by one man to another, to hold during their mutual will and pleasure. (w) This tenure, when the rent is payable yearly or half yearly, is generally understood as a tenancy from year to year Emblements are attached to this estate, similar to all other particular estates of uncertain duration, so far as relates to the purposes of husbandry. An estate at A TENANT at sufferance is where a termor for years continues in possession after his term is ended, or, where a person who once had lawful possession of land, afterwards keeps possession without any title at all.(x) sufferance. The lowest This tenancy is the lowest which can subsist, it tenancy that cannot originate in the agreement of the parties, the can subsist. law presuming that the possession is continued by the permission of the person entitled to it; the payment of an annual rent will in this estate, as also in a tenancy at will, generally raises a constructive tenancy from year to year.(y) (w) 2 Black. ch. 9. p. 145. (x) Co. Lit. 57, 6. 2 Bl. ch. 9. p. 150. Úང་་)、、༤༤ར 4 Com. Dig. 66. copy of court TENANCY by copy of court roll, depends entirely Tenant by upon custom. As to copyhold estates, no precise roll rule can be laid down respecting their descent or their particular incidents. In general they descend according to the rules and maxims of the common law; (2) unless in particular manors, where there are contrary ancient customs, which customs are preserved or evidenced by the records of the court rolls of each respective manor, handed down to posterity by immemorial usage. copyhold. The two main principles seem to be, that the Main prinlands should be parcel of and situate within the ciples of manor under which they are holden; and, secondly, that they have been demised or demisable by copy of court roll immemorially, for immemorial custom is the life of all tenures by copy, so that no new copyhold, strictly speaking, can be granted at this day. Conveyance As to the conveyance of copyhold lands from one man to another, the method is generally by sur- of copyhold. render, which is the yielding up of the estate into the hands of the lord for such purposes, as in the surrender are expressed as to a purchaser or mortgagee; (a) and, it is said that the word surrender is of such efficacy, that no other will supply the want of it, and care must be taken to observe the custom in making the surrender; in some courts a rod is used, in others a glove, &c. If the surrender be made out of court, then at the next or some sub (2) See Blk. v. 2 c. 3 p. 97, (the stat. 3 and 4 W. IV. c. 106, for amending the law of inheritance, whereby the half-blood is admitted, &c. applies to copy hold lands.) (a) It was requisite prior to the statute 55. Geo. 3. (but now repealed by the act 1. Vict. c. 26.) that a surrender should be made to the use of the last will and testament of the surrenderee; but, such ceremony being so frequently omitted, and application to the Court of Chancery so often made, it was at length deemed expedient to pass this statute, to rectify such omissions, and to render unnecessary such surrenders; but, by the act of 1 Vict. c. 26. for amending the law in respect to wills, provides, that the power thereby given to devise all real and personal property, shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that being entitled as heir devisee or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same in consequence of the want of custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made. See sec. 3. And see note (c) to p. 6. Inheritance 1 Vict. c. 26. Copy hold. sequent court, the jury or homage will present it, and, immediately upon such surrender the court, or upon presentment of a surrender made out of court, the lord by his steward, grants the same land again to cestui que use, or the surrenderee, and thereupon admits him tenant according to the form and effect of the surrender, upon which, he pays the fine(b) to the lord, and takes the oath of fealty.(c) Coparcenary. At common law. By the custom of Kent. mission. TENANCY in coparcenery is of two kinds; parceners at the common law, and parceners by custom. Parcenery at common law is where a man and woman is scized of lands or tenements in fee simple or fee tail, and hath no other issue but daughters, and dies, the tenements descend to the daughters equally as co-heirs, and they shall enjoy every one an equal part thereof as tenants in parcenery, and are, as it were, one heir to their ancestor; or, if a man seized of lands die without issue, and the tenements descend to his sisters, or if he has no sisters, and it descends to his aunts, they will be coheirs or parceners. Parceners by custom arises only in Kent, and is called tenure in gavelkind, and it is a right claimed by the men of Kent as remaining to them uncon Fees on ad. (b) The lord of a manor is entitled to seperate fees on the admission of copyhold tenauts in common, Everest v. Glyn, 6 Taunt. 425.; but see Rex r. the lord of the manor of Bonsal, 3 Barn and Cress, 173, as to the admission of coparceners upon payment of one set of fees. Joint tenants pay one fine only on admission, 1 Watk. Cop. 298. One joint tenant or coparcener of copyhold estate, may release by deed, without surrender to his companion; but, one of tenants in common cannot, as they have each a seperate tenement. And see D. and R. 825. Surrenderee (c) Until the admission of the surrenderee, the lord considers the surrenderor as his tenant, who is entitled to receive the profits of his land to his own use, and must discharge all services due to the lord, yet the interest remains in him, not absolutely, but sub modo; for he can neither sell nor charge the land with any subsequent incumbrance, (the admission being retrospective to the surrender,) indeed, no manner of legal interest is in the nominee, till admittance, for if he enters, he becomes a trespasser, and cannot maintain an ejectment; but, when copyhold land descends to the heir, he is tenant by copy, (as to every one but the lord,) immediately on the death of the ancestor, and he may enter upon the land and take the profits before admission; he may also maintain an ejectment, or do any other act as effectual to all intents and purposes as he could after admittance, a very few instances excepted. See Watk. Gilb. Ten N. 75 and 95, p. 415 and 436. 1 T. R. 600. 4 Burr. 1952. It appears that a copyholder may take the necessary estovers or botes on his copyhold, without a special custom: but, to enable him to take them on other lands, a special custom must be shewn. 4 Co. Rep. 31. b. |