Customs of barring lives by first taker.

lord being entitled to a heriot of every such person successively dying seised (y). And elsewhere the grants are made to persons for their lives jointly. Sometimes, as in the manor of Dawlish in Devonshire (z), the grant is to two joint lives in possession and to two joint lives in reversion. And there are many other varieties of the customary tenure, as a grant for one life only, or for one life in possession and other lives in expectancy, and the like.

Most of the tenant-right estates of the Northern Counties are customary freeholds of inheritance; but some are held by a peculiar tenure for lives, being in effect granted for the joint lives of the tenant and of the particular lord who admits him to the tenement (a). But in these cases there is generally a tenant-right of renewal in the heirs of the tenant.

Where copyholds are granted for the lives of several persons, the first-named life, or "the taker," is generally, though not invariably, the beneficial owner. By the special customs of a great number of manors the first taker has a right to surrender his estate, and thereby to bar the estates of all the rest (b). And it is frequently part of the custom, that the life in possession, or the first of the lives in possession, shall have a veto upon any fresh creation of tenancies in remainder without his assent or "goodwill," for the manifesting of which there is frequently a customary ceremony; the object being to preserve to the beneficial owner the power of surrendering to the lord, and taking a new estate for his own benefit. Where the custom exists, it will be construed strictly, and the first life will not be allowed to bar the remainders, except in the precise manner authorised by the custom. Formerly it seems to have been the view that such customs were ex

(y) Smartle v. Penhallow, 6 Mod. 63.

(2) See Watk. Copyh. ii. App.

486.

(a) Somerset (Duke of) v. France, 1 Stra. 654.

(b) See Zinzan v. Talmadge, Pollexf. 561.

ceptional. Thus, in Rundle v. Rundle (c), where a copyhold had been granted to three persons for their lives successively, it was held that in the absence of evidence as to a custom enabling the first taker to dispose of the whole estate, and as to the purchase-money having been paid by such first taker, the copyhold estate was to be held in succession, and was not to go to the executor of the first taker; but the modern view seems to regard customs of barring lives as being usual. In Right d. The Dean and Chapter of Wells v. Bawden (d), where there had been a grant by copy of court-roll of a reversion to one who had previously a life estate in the premises, to hold to him for the lives of two persons during the life of the longer liver, according to the custom of the manor, under reservation of rent and a heriot, it was held that the grantee alone took the legal estate in the reversion, and not the cestui-que-vies, as there was no custom enabling them to take, although they were stated to be admitted tenants in reversion; and in Jeans v. Cooke (e), Sir John Romilly doubted whether a custom that the cestui-que-vics should successively be entitled to admission, would be good where there had been a devise by the person who had been admitted tenant to hold to him for the lives of his three sons and the life of the longest liver of them successively.

granted.

According to the rule, that he who can grant the greater What estates estate can also grant the less, when copyholds are demise- may be able by the custom for any number of lives, they may be demised for any estate equivalent or inferior to the amount of interest allowed by the custom (ƒ). Thus, if the custom is that copyholds may be granted for three lives, an estate may be granted to three persons for the lives of two, or for one life, or any estate within the custom. So where the custom is to grant for life absolutely, the grant may be for

(e) 2 Vern. 264.

(d) 3 East, 260.

(e) 24 Beav. 513. A form of surrender and re-grant of copy

holds for lives will be found in the
Appendix, post.

(f) 1 Ro. Abr. 511.

Resulting trusts.

a qualified life estate, as to a woman during her widowhood. And by a custom which allows a grant to three successively, the grant may be to one for three lives or for the life of himself and two others successively (g); and if a grant for life is authorised, a demise for years may be made under the custom (h). And on the same principle a copyhold for lives may be given for certain lives to a man and his heirs, or his executors and administrators, as special occupants.

The doctrine of resulting trusts is of particular importance in copyholds for lives. The general rule is, that there will be a resulting trust to the person who finds the money for the admittance-fine, whether the copyhold is taken in the names of the purchaser and others jointly, or in the names of others without that of the purchaser, whether in one name or several, and whether the lives take jointly or successively, unless it should be a case of advancement (i). If it appears that the fine is paid by one of the lives named in the copy, he will be the proprietor, whether by custom the first taker has power to bar the other lives or not, and the rest will be trustees for him. And if the first taker under such a custom were to bar the estates of those who have paid the fine, he would thereby constitute himself a trustee for them of whatever estate he acquired or retained in the tenement. A custom that the lives named in succession should have the beneficial ownership, though the first taker paid the fine, would be void; but where the money is contributed equally, there is no reason why the beneficial estate should not go in the order named in the copy (k).

Where any such custom as to the lives named in suc

(g) Smartle v. Penhallow, 1 Salk. 188.

(h) Gravenor v. Todd, 4 Rep. 23 a; Downs v. Hopkins, Cro. Eliz. 323; and Com. Dig. Copyh. (C. 10), where the cases are collected.

(i) Dyer v. Dyer, 2 Cox, Ch. Cas. 92.

(k) Lewis v. Lane, 2 Myl. & K. 449, overruling Edwards v. Fidel, 3 Madd. 237.

cession taking beneficially exists, it affects only the legal estate or interest in the copyhold (7).

renewal.

In some manors the copyholders for lives have a tenant- Right of right of renewal. But to support such a custom, the tenant must prove a constant usage of renewal upon payment of a fixed fine. It will not be sufficient to allege it to be on payment of a reasonable fine, on account of the difficulty of ascertaining the quantum of such a fine, or to adduce instances that tenants of copyholds have been admitted at various times on payment of a fine which had been ascertained and agreed on between the lord and the tenant. "If a custom be not found to renew on payment of a certain fine, the lord may insist on his own. terms and the only proof that can be given of such a custom is the fact of renewals having taken place according to some certain standard, that is, upon a fine certain" (m). In some manors the tenants have a right of appointing Nomination their successors which resembles a tenant-right of renewal: as by the custom of the manor of Yetminster Prima in Dorsetshire, where the copyholds are granted for one life only, and "any tenant may assign, nominate, or surrender his tenement to his child or any other person" (n).

Tenants with this power of nomination or with a tenantright of renewal are called "quasi-copyholders in fee," and are allowed many of the privileges which usually belong to copyholds of inheritance.

of successor.

claims to

Elsewhere the tenants have by various local customs Preferential preferential claims to be admitted to neighbouring copy- renewal. holds on any terms which a stranger will offer, and in

(1) Smith v. Baker, 1 Atk. 385. (m) Grafton (Duke of) v. Horton, 2 Bro. P. C. 284; Wharton v. King, Anst. 659; Abergavenny (Lord) v. Thomas, Anst. 668, n.; Walker v. Abingdon (Earl, 10 L. J. N. S. Ch. 289.

(n) See Allen v. Bewsey, 7 Ch. Div. 453, and Appendix, post, as to customs of manors of Yetminster, Yetminster Prima, and Yetminster Secunda; and Ford v. Hoskins, Cro. Jac. 368, as to custom of manor of Beaminster in Dorset.

Trustee renewing.

some manors the heir or nearest blood relation of a deceased tenant has a similar option in the nature of a tenant-right.

Where there is only a habit of renewal, without a tenant-right, copyholds will come within the general rule of equity, that a trustee renewing for his own benefit will hold the land for his cestui que trust, and a life-tenant, or other person with a limited interest in a renewable copyhold, will be considered a trustee for those in remainder. It seems, however, that a trustee or tenant for life might purchase the freehold interest, and so practically destroy all chance of future renewals, and hold it for his own benefit, unless those in remainder could show that he took an advantage from his position as trustee, or as having an interest in the settlement, which a mere stranger would not have enjoyed; but where there are under-tenants who have a covenant that their interest shall be renewed toties quoties with every renewal of their lessor's interest, a purchase of the reversion or freehold by the latter will create a trust in favour of the under-tenants (o).

Nature of estates.

III.-COPYHOLDS FOR YEARS.

Besides the estates for years already described, which may subsist in copyholds of inheritance or copyholds for lives, there are in several districts copyholds for years, which are granted for a term renewable (p) or not renewable according to the usage, but for no greater estate. These are found among customary freeholds, as well as in copyholds in the restricted sense of the term.

Of this kind appear to have been the Conventionary Estates in manors belonging to the Duchy of Cornwall (now mostly enfranchised), which were granted for suc

92.

(0) Dyer v. Dyer, 2 Cox, Ch. Ca.

(p) See Page's Case, Cro. Jac.

671.