excluded in the following cases: -"If any tenant die seised of any customary lands or tenements of inheritance within the said manor, and having a wife at the time of his death, then his wife ought, and hath used time out of mind, to inherit the same lands as next heir unto her husband by the custom of the said manor, and be admitted. tenant thereunto, to hold the same unto her and her heirs for ever, according to the custom of the said manor, and in as ample manner as any other customary tenant there holdeth his lands under the rents, fines, heriots, customs, duties, suits, and services for the same due and accustomed "(o); and also "In case a woman seised of any customary lands of inheritance, parcel of the said manor, marry a husband, the same husband ought, and by the custom of the said manor hath used, to fine with the lord of the said manor for her and her land at the old precedent fine of the same land, and thereof to make an entry with. the clerk of the castle, and to put in pledges at or before the first law-day court after the said marriage, by virtue of which marriage, entry, and pledges, the husband becomes owner of the same land, and is to be admitted tenant thereunto to hold the same to him and his heirs for ever, according to the custom of the said manor" (p). estates cus All these local customs of descent extend to estates-tail To what as well as to fee-simple inheritances. "If a man dies toms extend. seised of lands in gavelkind in tail, whether general or special, all the sons will inherit together as heirs of the body; and in, like manner if lands in borough-english are given to a man and the heirs of his body, the youngest son will take" (2). There has been a question, if gavelkind lands, or lands subject to similar customs, are devised to a man and his wife for their lives, with remainder to the (0) Shillibeer, Customs of Taunton Deane, 42; and see Locke v. Southwood, 1 Myl. & Cr. 411; S. C. sub nom. Bush v. Locke, 3 Cl. & F. 721 (H. L.) (p) Shillibeer, Customs of Taunton Deane, 49. (9) Rob. Gav. 119, 120; Weeks v. Carvel, Noy, 106; Co. Litt. 110 b. Alteration of course of descent. next heir male of their bodies, whether the eldest son should inherit, or whether the land would be partible; but it seems clear that, according to the analogy of similar cases as to lands descendible at common law, there would be an estate tail in the parents, and the co-heirs in gavelkind would be the heir in tail (r). The customary descent will attach not only to estates in fee simple and fee tail, but also to descendible estates pur autre vie, where the heir or heir of the body is designated as special occupant to take the descendible freehold. "If lands of the nature of borough-english are let to a man and his heirs during the life of J. S., and the lessee dies, the youngest son shall enjoy it" (s). And now the "descent of lands" includes the descent of every possibility, right or title of entry or action, and every other interest capable of being inherited, whether in possession, reversion, remainder, or contingency (†). The customary course of descent cannot be altered by words directing that the land shall descend to the heirs at common law. "A man seised of gavelkind lands gives or devises the same to a man and his eldest heirs: he cannot thereby alter the customary inheritance, but, ut res magis valeat, the law rejects the adjective eldest" " (u); and this rule extends to estates tail. So if a copyholder, where the lands go in a customary course of descent, surrenders to the use of himself and his heirs, "according to the course of the common law," the latter words would be treated as surplusage (). A grant or devise to the heir of A. B. would, however, be presumed to be intended for the heir at common law as a persona designata; but where the term "heir" is used as a word of limitation, and not as a word of purchase, the customary heir would be preferred (y). (r) May v. Milton, Dyer, 133 b. (t) 3 & 4 Will. IV. c. 106, s. 1. Lovelace, Cro. Eliz. 40. (x) Co. Litt. 10 a, n. 3 (Harg.); Anon., Dyer, 179 b. (y) Co. Litt. 10a; Rob. Gav. 123, 156. In Thorp v. Owen (≈), it appeared that a testator, seised of certain gavelkind lands in the county of Kent and certain freeholds in the county of Essex, had devised all his real estate, after the death of his wife, to his then male heir and his heirs in strict tail male; and it was held that on the death of the wife all the testator's lands passed to his then heir at common law, and that his heirs in gavelkind were not entitled to the gavelkind lands. In Polley v. Polley (a) there was a devise, after a tenancy for life, of borough-english lands for sale and division of the moneys among all the testator's sons and daughters who might then be living, and to the heir and heirs of those who might have died, share and share alike. It was held that under the gift to heirs the common law heir, and not the heir in borough-english, took. rights of The heir at common law was formerly the only person Descent of who could take advantage of a condition broken, the right entry. of entry not descending to the customary heirs, unless the condition was incident to the reversion of the customary land, so that if a man alienated lands of gavelkind or borough-english tenure on condition and then died, the eldest son alone could take advantage of a breach of the condition and enter on the land (b). But if the condition was incident to a reversion, the customary heir might take advantage of it (c). But now, under the provisions of the Inheritance Act, 1833, every possibility, right or title of entry or action, and any other interest capable of being inherited, descends as "land" (d). descent ex If a manor is subject to a special custom of descent, the Customs of advowsons, whether appendant or in gross, and the rents, tend to services, and profits incident to the manor, will go in the manors, &c. same course of descent. The following examples illustrate the mode of descent of profits incident to a manor subject (z) 2 Sm. & G. 90. (a) 31 Beav. 363. (b) See Earl of Arundel's Case, Dyer, 342 b, 343 b. (c) Anon., Godb. 2; Rob. Gav. 159. (d) 3 & 4 Will. IV. c. 106, s. 1. But not to tithes. Customary descent of rents, &c. to such a special custom of inheritance. If a fair or market be held on gavelkind lands, or other customary lands, such profits as arise from, or by reason of, the soil will descend in the same manner as the land: but such as are independent of the soil will go to the heir at common law, as may be inferred from what was laid down in the case of Heddey v. Welhouse (e), "that if the king grants a fair or market, with toll certain, to a man and his heirs, to be held within borough-english land, and the grantee dies, the heir at common law will have the fair or market with the tolls, but the younger son will have the pickage and stallage," or payments made in respect of interfering with the soil by poles, as being incident to the soil (ƒ). But such customs did not extend to any tithes coming to the Crown by force of the statutes relating to the dissolution of monasteries (g). The same rules apply to rents which issue from customary lands. A rent-service, which is parcel of a manor, will descend with the manor, whatever be the nature of the lands charged (). But it was long doubted whether a rent, charged upon or reserved out of customary lands, will in other cases descend according to the nature of the land. "A custom," says Lord Coke, "never extends to a thing newly created, and therefore if a rent be granted out of gavelkind lands or borough-english, it shall descend according to the course of the common law" (i). But the point was settled by the case of Randall v. Jenkins (k), where the question was whether a rent-charge, granted out of gavelkind lands to a man and his heirs, should go (e) Moo. 474. (f) Rob. Gav. 100, who cites an unreported case of Rebow v. Bickerton, Trin. 7 Geo. I. Exch., to the same effect. (g) Co. Litt. 159 a; Lushington v. Llandaff (Bishop of), 2 N. R. 491. The Statutes of Monasteries are the Acts 27 Hen. VIII. c. 28 31 Hen. VIII. c. 13; 37 Hen. VIII. c. 4; 1 Edw. VI. c. 14; 1 & 2 Ph. & M. c. 8; 35 Eliz. c. 3. (h) Rob. Gav. 100. See also Gouge v. Woodin (King's Bench, 1734), of which an account is given in Elton, Ten. of Kent, 189. (i) Co. Copyh. s. 33. . to the heir at common law, or be partible among all the estates. Where copyholds are made the subject of a trust, "the Equitable equitable estate possesses those incidents of the customary property which directly affect the tenant, and therefore the rules of descent are those which the custom prescribes" (o). There is, of course, an exception where, as in the cases mentioned above, the customary descent is only applicable to the case of "a tenant" or a tenant “dying seised" (p). The customary descent will attach 1908. 164 655in the case of an equity of redemption, or a resulting trust, or the case of a surrenderee dying before admittance (q). An executory trust, as distinguished from an executed trust, in favour of the heirs of A., is construed in favour of the heirs at common law, and the Court will direct a conveyance to be made accordingly, the word "heirs " (2) 1 Mod. 112. (m) 2 Lev. 138. (n) Dumpor's case, 4 Rep. 119 b, 120 b; Co. Litt. 148 b, 215 a. (0) Burt. Comp. s. 1395; Co. Litt. 13 a, 23 a. (p) Payne v. Barker, O. Bridg. 18; Rider v. Wood, 1 K. & J. 644. (a) Barker v. Denham, Sty. 145; Fawcet v. Lowther, 2 Ves. 300, 304; Blunt v. Clark, 2 Sid. 61. |