2 Ab. Eq. 101. S. P. And by the Alienation of the jointure barred her of free bench, as well as of 38. The right to free bench does not, like dower, the Husband. attach on all the copyholds whereof the husband was possessed during the coverture, but only on those of which he died possessed, or as the custom usually expresses it, whereof he died seised; so that a copyholder may defeat his wife's right to free bench by any species of alienation. Parker v. Blicke, Cro. Car. 568. Benson 'v. Scott, Skin. 406. 39. Where the custom of the manor was, that the wives of copyholders, dying tenants of the manor, should be endowed; a copyholder became a bankrupt; the commissioners bargained and sold his copyhold for the benefit of his creditors. The copyholder died before the bargainee was admitted. Resolved, that the widow was barred of her free bench, because her husband did not die tenant. 40. A person surrendered his copyhold by way of 4 Mod. 251. mortgage, and died without paying off the money, leaving a widow, who claimed dower. The Court Isaid the widow's title did not commence by the marriage, if it did, the husband then could do nothing to prejudice it; but it was plain he might alien or extinguish his right. The free bench grew out of the estate of the husband, it was his dying seised which gave the widow a title; as the husband had a defeasible estate, so the wife might have her free bench defeated. Salisbury v. Hurd, Cowp. 481. 41. Upon a motion for a new trial, it appeared that the custom of the manor of Warminster was, to grant copyholds for three lives; that the first life had a power of surrendering the whole estate; and the widow of a tenant who died seised was entitled to her free bench. That one F., then a copyholder for three lives, surrendered to Hurd, the deceased husband of the defendant, who, by licence from the last lord, demised to Singerfor 99 years, by way of mortgage. Then Hurd died, and Singer demised to the plaintiff. The widow of Hurd claimed her free bench, there being no special custom to make a demise of this kind; therefore contended that the estate of her husband was not determined, according to the custom of the manor, but he must be deemed to have died seised of the copyhold, and the widow still entitled to her free bench. On the other side it was said, that the copyholder, having obtained the lord's licence, might do what he pleased with the estate, and could have conveyed it from the wife, in any form he thought fit; consequently her right of free bench must be subject to the mortgage. The Court was of opinion, that the widow was not entitled to free bench: They held there was a great difference between the custom of free bench, found in this case, and dower: the widow was entitled to dower of all her husband was seised of during the coverture, but here her right was confined to such estates as he should die seised of; consequently as between lord and tenant, they might defeat the wife's estate when they pleased. 42. A surrender of a copyhold to the lord, for Vaughan v. Atkins, the purpose of alienation, will therefore operate as a Tit. 37. c. 1. bar to free bench. And even a surrender to the use of the surrenderor's will bars his widow; because 1 Inst. 59 b. there the copyholder parted with his estate. Case, 43. It was held in 2. Ja. I. that if a copyholder Fardey's makes a lease for years, his widow shall not avoid it, Cro. Ja. 36. without a special custom, because the lessee comes in under the custom, and by the lord's licence, as well as the widow. Ten. 321. Or even an Agreement to convey. Hinton v. Hinton, Amb. 277. 44. Lord Chief Baron Gilbert makes the following observations on this case." It seems to me that the feme shall not in this case be endowed of the third part of the rent and reversion; because customs ought to be strictly pursued; and that is only to be endowed of the land. Yet it seems, after the lease ended, she shall be endowed, for the husband did die seised; the possession of his less ee being his own possession. But it was agreed in this case, that by special custom the feme might avoid the lease. This among other cases proves that a copyholder may dispose of his land, and bar his wife of her free bench, unless there be a particular custom that she shall avoid any alienation, &c. made by him; for then the particular custom shall, as it seems, avoid his charge, as well in the case of copyhold, as of freehold estates, by the common law." 45. Even an agreement to convey will, in equity, bar the widow of a copyholder of her right to free. bench. 46. A husband copyholder of an estate, to which, 2 Ves. 631. by the custom of the manor, his widow was entitled, as her free bench, in case he died seised thereof, being in gaol, entered into an agreement for the sale of that estate to his son, for a valuable consideration. The husband died without having executed the agreement, by an actual surrender of the copyhold, and passing the legal estate to the son; who brought his bill for a specific performance of the agreement, to the exclusion of the widow's free bench. Lord Hardwicke was of opinion, there was a strong equity that the widow should be bound, as well as the heir; and decreed the purchaser entitled to relief against the widow. Raindle, 47. A bill was filed for a foreclosure, and to Brown v. compel a surrender of a copyhold estate, under a 3 Ves. Jun. covenant in the mortgage deed, to surrender those 256. premises as an additional security. The question was, whether this covenant of the mortgagor barred the right of his widow to free bench. The custom of the manor appeared by the evidence to be, that the copyholder could convey these estates by surrender; but where he died seised of the estate, the widow was entitled to it during her widowhood, as her free bench. Sir R. P. Arden M. R. said it was perfectly clear that the right of a copyholder's wife might be barred by her husband, by any act done for valuable consideration, whether conveying a legal estate, or otherwise. Upon the evidence, supposing this a widow's estate, arising out of an estate of which the husband was complete owner, and could bar her estate, he was of opinion it was that sort of estate which any equitable conveyance would bind. Any act of the husband for valuable consideration, barred her equally with a legal surrender; and she was compellable in equity to surrender pursuant to such contract. 48. There are however many manors in which the custom is, that the widow shall have her free bench of all the customary tenements whereof her husband was seised, at any time during the coverture. Anon. 49. If a copyholder does any act which, by the And by Forcustom of the manor, amounts to a forfeiture of his feiture. estate, his wife will thereby lose her free bench; 1 Freem.516. because every thing which determines the estate of infra, c. 5. the copyholder, has that effect. 50. Where the lord conveys the freehold of the And by a land to the copyholder in fee, his wife will thereby Freehold to Grant of the the Husband. Lashmere v. Avery, Cro. Ja. 126. infra, c. 6. Howard v. Bartlet, Hob. 181. A Devise may bar Free Bench. Tit. 6. c. 5. § 21, &c. Ward v. Amb. 299. Subject to Curtesy, 4 Rep. 22 b. Cro. Eliz. 361. Savage's 109. 208. lose her free bench; because the copyhold is destroyed, as will be shown hereafter. If the lord grants the freehold of a copyhold to a stranger, the wife will not lose her free bench; because this does not destroy the copyhold. 51. A general devise of other lands will not bar a widow of free bench: for the same reason that it will not bar dower. But where it is expressed to be in satisfaction of dower, the widow is then put to her election. 52. A testator, after devising to his wife, declared in his will, that what he had before given her, should be in full of all dower, and right of dower, or thirds, which she might have or claim in or out of his real estate. It was decreed by Lord Hardwicke, that the devise was a satisfaction of the wife's right to free bench of a copyhold, which the testator had purchased after the making of his will; for free bench was a customary right, nomine dotis, and so declared by Bracton. 53. Curtesy is not incident to copyholds, unless there be a special custom to warrant it. Where a custom of this kind prevails, it is construed strictly, and not extended beyond the words. Thus, if the custom be, that where a man marries a customary tenant, he shall have curtesy; the woman must be a copyholder at the time of the marriage. 54. The custom of a manor was, that if any man took to wife a customary tenant, had issue, and outlived his wife, he should be tenant by the curtesy. A person pleaded that he took to wife one Ann, to whom, during the said coverture, a customary tenement of the said manor did descend; that he had issue, and that she was dead. It was adjudged, that the husband was not entitled to curtesy, under |