Inchoate right of freebench. the land of which her husband died actually possessed (r). In most places the widow's estate is confined to the lands of which the husband died tenant, but in some manors she may claim freebench out of all the copyholds of which her husband was tenant at any time during the marriage, as in the manors of Thornbury in Gloucestershire and Doddington in Shropshire. In these cases the wife's right or inchoate title commences at the marriage, or on the husband's acquisition of the property after the marriage, unless it is conveyed to uses for his benefit similar to the ordinary uses to bar dower. By the custom of the manor of Cheltenham, as settled by a private Act (u), the widow of a copyholder is entitled to have for dower one-third part of all the customary lands of which her husband was tenant during the marriage, unless the lands have been aliened during the marriage with the consent of the wife after being duly examined in court according to the custom (r); and it has been held that if the lands are aliened by the husband alone, without the wife having been examined in court or (r) Benson v. Scott, 12 Mod. 49; (s) Fareley's Case, Cro. Jac. 36. Salisbury d. Cooke v. Hurd, Cowp. 481. (u) 1 Car. I. c. 1 (Priv.). (a) See sects. 8 and 9 of the Act, and Riddell v. Jenner, 10 Bing. 29. having joined in the surrender, and are at the death of the husband in the possession of several persons, whether by the immediate act of the husband or the act of his alienee, dower must be assigned as to one-third of the lands of every such person in possession (y). The rule that "dying seised" is not essential in the case of dower claimed out of gavelkind lands applies to freeholds of that tenure (≈), and ́ not to copyholds. cies. Dower does not attach upon lands of which the husband Joint tenanwas seised as joint tenant with another (a); but by the customs of some manors the widow of a joint tenant for lives may be entitled to hold during her widowhood with the surviving tenant or his widow, and in some cases of the same kind the two widows may hold as joint tenants with benefit of survivorship, as in the manor of Dawlish in Devon. tail. The general rule is that the widow of a tenant in tail Tenancies in of a copyholder will be entitled to freebench though there is no special custom as to the freebench of widows of tenants in tail, but only as to the freebench of widows of tenants in fee (b). lives. Again, the privilege of freebench does not show that the Tenancies for copyhold estate was an estate of inheritance, "for a copyholder for life may have in some instances such an excrescence growing out of his estate" (c); and it is not uncommon for the widow of a copyholder for lives to hold his land for her life or widowhood as a continuance of the husband's estate (d). There is no freebench of a merely equitable estate (e); Equitable and the widow of a trustee will not be allowed to claim (y) Doe d. Riddell v. Gwinnell, 1 Q. B. 682. (z) Davies v. Selby, Cro. Eliz. 825. (a) Litt. s. 45; Co. Litt. 37 b, 185 a. (b) See Doe d. Duke of Norfolk v. Sanders, 3 Dougl. 303. E. (c) Mardiner v. Elliott, 2 T. R. 746. (d) Howard v. Bartlet, Hob. 181. (e) Chaplin v. Chaplin, 3 P. Wms. 229; overruling Otway v. Hudson, 2 Vern. 583, 585. M estate. Effect of subsequent admittance. Assignment of freebench. Necessity of widow's admittance. Widow's rights and remedies. freebench any more than dower in the case of a freehold (f). The widow of an unadmitted heir or surrenderee may however claim her freebench after the admittance of the new tenant; for the admittance having relation to the time of the surrender, when a copyhold is surrendered to the use of a purchaser who dies before admittance, the admission of the heir will supply such a seisin in the purchaser as will entitle his widow to freebench (g). The widow does not receive freebench by assignment of the heir, but of the lord, or the jury at a customary court; and she is not tenant to the heir, as in the case of dower, but to the lord (h). Where the widow is entitled to the whole of her husband's estate she may enter at once, as the law casts the possession upon her," and she will be owner of the land before admittance, as against all persons except the lord (i). But when she is entitled to a portion only, she cannot enter without assignment. Her right of entry does not take away the necessity of admittance and payment of any fine which may be due to the lord by the custom of the manor (). It has been argued that where the widow's freebench is of the whole of the copyhold and is thus a continuance of the estate of her husband, there is no necessity for assignment or admittance (7); but it should be recollected that even the estate of the dowager at common law is held to be a continuance of the husband's interest (m). A widow entitled to freebench will have all the remedies and protections, which a tenant in dower would have at (f) Forder v. Wade, 4 Bro. Ch. Cas. 520, 525. (g) Vaughan v. Atkins, 5 Burr. 2764, 2785; Smith v. Adams, 18 Beav. 499. (h) Gilb. Ten. 172, 173; and see Doe d. Nepean v. Budden, 5 B. & Ald. 626. (1) Howard v. Bartlet, Hob. 181; Jurden v. Stone, Hutt. 18; Borneford v. Packington, 1 Leon. 1. (k) Kitch. Jurisd. 242; Co. Copyh. s. 56; Forder v. Wade, 4 Bro. Ch. Cas. 520, 525; Watk. Copyh. i. 272, 299; Scriv. Copyh. 349. (1) Watk. Copyh. ii. 90. law, and at equity she may have an account of the rents and profits from the death of her husband (n). She might have claimed the assignment of her portion by a plaint in the manor court analogous to the writ of dower (o); and, on the principle established by the Statute of Merton (p) and by the statute 16 & 17 Car. II. c. 8 (2), she may sue for her arrears of freebench or damages in respect thereof. By the Limitation Act, 3 & 4 Will. IV. c. 27 (r), the suit can only be for six years' arrears or corresponding damages; and by sect. 2 of the same Act, as amended by the Real Property Limitation Act, 1874 (s), after twelve years' delay she will lose her title to the estate. On another principle derived from the same Statute of Merton (t), the widow can devise the growing crops on the land held in freebench. As in the case of other tenants for life, if the tenant in freebench sows the land and dies, her executors will have the crops, because the estate was determined by the act of God; but if the freebench is determinable by a second marriage, or the like, and the tenant ends her estate by her own act or fault, it is otherwise (u). Under the provisions of the Act 14 & 15 Vict. c. 25, the lessee of a tenant in freebench will be entitled to remain to the end of the current year in lieu of a claim to emblements. freebench The widow's claim to freebench may be barred in How claim to various ways. Although at law a jointure or a provision barred. in lieu of dower would not bar the wife against claiming freebench in copyholds, as copyholds are not within the Statute of Uses (x), yet in equity a jointure, whether expressed to be in bar of freebench as well as of dower or (n) Curtis v. Curtis, 2 Bro. Ch. Cas. 620. (0) Shaw v. Thompson, 4 Rep. 30 b; and see Scott v. Kettlewell, 19 Ves. jun. 335; Widdowson v. Harrington (Earl of), 1 J. & W. 532. The writ of dower was abolished by 23 & 24 Vict. c. 126, s. 26. (p) 20 Hen. III. c. 1. (r) Sect. 41. (s) 37 & 38 Vict. c. 57. (u) Oland's Case, 5 Rep. 116 a; 2 not, would operate as a bar, though the provision ought properly to be expressly stated as being in full satisfaction of all dower, freebench, and thirds (y). Thus, where a husband by a settlement on his marriage," in order to make some provision for " his intended wife "in case she should survive him," settled a copyhold estate upon himself for life with remainder to her for life, it was held that the wife's right to freebench out of other copyholds of which the husband died seised was not barred by the settlement (). It would appear from the judgment of Sir John Romilly, M. R., in the case just referred to, that an intention to bar freebench, which attaches only on copyholds of which a husband dies seised, will not be so readily inferred from a provision before marriage by the intended husband, as under the old law an intention was inferred as to barring dower. If the widow were an infant when married, she will have an election between the jointure and her freebench, though it is otherwise in the case of freeholds by virtue of the Statute of Uses (a). If the jointure be post-nuptial, she will have her election, as with her dower in a similar case (b). Freebench may be barred by jointure even in manors where the widow is entitled in respect of all lands of which the husband was tenant at any time during the marriage (c). In the same manors the wife's incipient right of freebench may be destroyed, it is submitted, by a surrender to uses to bar freebench, though the Dower Act does not apply to copyholds. The lord would not be compelled to accept any surrender giving powers of appointment which might deprive him of his future fines, as has already been explained, but if the admittance of the surrenderee in such a case be in fee, the limitation of uses to bar freebench in the surrender (y) Lacy v. Anderson, cited 1 Swanst. 398 n., 445; Walker v. Walker, 1 Ves. 54; Co. Litt. 36 b. (2) Willis v. Willis, 34 Beav. 340. (a) Buckingham (Earl of) V. Drury, 3 Bro. P. C. 492, 497, 502. (b) Co. Litt. 36 b; Vernon's Case, 4 Rep. 1 a. (c) Buckingham (Earl of) v. . Drury, 3 Bro. P. C. 492; 1 Roper, 476. |