1837. Doɛ dem. reversion or otherwise, nor were the premises surrendered to the use of his will, which is dated 18th March 1811, and of which the following is an extract: "I do constitute and appoint my beloved mother, Sarah Cawston, whole and sole executrix to this my will; and, further, I do hereby bequeath and give unto my said mother and executrix all and singular my whole and sole property I may die possessed of, or having right or title to, in money, goods, clothes, leasehold, copyhold, or freehold, bank stock, annuities, mortgages, bonds, notes, or any hereditary property I may either die possessed of or have any legal claim or expectation to the same." Dated 18th March 1811. Philip Cawston, the son, died in 1819, unmarried. Amongst the rules of customs pertaining to the manor is the following (viz.). "The seventh part of our custom is that, if any tenant which holdeth land of our sovereign Lord the King do sue it out of the said Court without licence of the lord of the soil, he to forfeit all his copyhold which he hath lying within the lordship, except it be brought out by the commandment of the King, or his most honourable council; and, furthermore, whether he came to it by inheritance or by purchase, and so holding it to him his heirs or assigns, and so at the hour of his death deliver or surrender to his next heir; and, if so be that after the death of any such tenant the heir doth give, set, or lay to mortgage any copyhold land lying within any of the said lordships, before the said heir be admitted and hath paid his fine according to the custom and manor of the said lordships, that then their sale, grant, surrender, or mortgage, made by the said heir, shall stand clearly void and of none effect by our custom." Sarah Sarah Cawston was not admitted under the will of her son, nor did she prove his will. She died on the 25th of October 1825. Letters of administration with the will annexed of Philip Cawston the younger, were, on 25th February 1826, granted to her executors. On the 2d of July 1824 Sarah Cawston made her will, whereby she devised all her estates, freehold and copyhold, to S. Holder, D. Cork, and S. Baxter (the two last of whom were her nephews and heirs at law); who, at a court of the manor, held on the 18th July 1826, produced the letters of administration with the will annexed of Philip Cawston the son, and paid to the lady of the manor their fine upon the neglected admission of Philip Cawston the son, and were severally admitted to an undivided third (a) of the copyholds in question. The case was argued in Michaelmas term last (b). Mansel for the plaintiff. Mary Winder, the lessor of the plaintiff, is entitled to one undivided third part of the copyhold premises claimed, as one of the three coheiresses of Philip Cawston the younger, unless Sarah Cawston's devise passed the property. First, Sarah could not make title to the fee as devisee of Philip Cawston the elder. His will cannot act upon the property, it having been made before he acquired it. The question then arises on the second codicil, by which he bequeaths to Sarah "all my copyhold" in &c. That gives only a life estate. It is true that Sarah was admitted to hold according to the will; but, though the (a) See the judgment, post, p. 211. (b) November 18th, 1836. Before Lord Denman C. J., Patteson, Williams, and Coleridge Js. 1837. DoE dem. 1837. Doɛ dem. admittance of a tenant for life may operate as an admittance of the remainder-man, here no remainder is devised; therefore the admittance operated only for her life. Philip Cawston the younger was reversioner in fee as heir-at-law. Next, though Philip Cawston the younger devised the fee to Sarah, yet, first, as he not only never surrendered, but never was admitted, his will cannot pass the property; and, secondly, as Sarah was never admitted her devise passes nothing. If it be said that the title descends on the heirs of Sarah, and that, therefore, it is unnecessary to insist on her devise, the answer is that Mary, the lessor of the plaintiff, is the co-heiress of the last person seised of the fee who was actually admitted. Hodgson, contrà. First, as to the second codicil to the will of Philip Cawston senior. Where words express the whole interest of the devisor, and cannot be understood as referring simply to the locality, or other peculiar description of the subject-matter of devise, the devisee takes the fee. The cases cited for the plaintiff in Doe dem. Hickman v. Haslewood (a) illustrate this position. Here, too, the rest of the testamentary disposition strengthens this construction. The devisor manifestly did not mean to die intestate as to any portion of his interest in either realty or personalty. The will gives the freehold property for life and in remainder expressly : the two codicils give personalty absolutely to the wife: the inference is, that the devisor meant to dispose of his (a) 6 A. & E. 167. (Argued on the same day with the case in the text.) whole whole interest in the copyhold, since he disposes of his whole interest in the freehold and personalty. It is evident that he meant his copyhold to pass like the personalty mentioned along with it in the second codicil, that is, the whole of his interest to the wife absolutely. Roe dem. Gillard v. Gillard (a) and Doe dem. White v. Simpson (b) are in point (c). "All my copyholds" means all that the devisor holds by copy, that is, his whole estate, held to him and his heirs at the will of the lord. "Freehold" and "estate" are used in the will as synonyms. Next, assuming that Philip Cawston senior's will passed to Sarah only a life estate in the copyhold, still she would take the fee under the will of Philip Cawston junior, upon whom, on that assumption, the reversion would descend. First, as to the objection that he was not admitted and had not surrendered. That is immaterial: Right dem. Taylor v. Banks (d), King v. Turner (e), in which last case Lord Brougham C. overruled the decision of Sir L. Shadwell, V. C. (g), who seems to have relied on Smith v. Triggs (h). And it was considered, in Doe dem. Smith v. Bird (i) (where Doe dem. Clarke v. Ludlam (k) was recognised), that an express or implied devise of copyholds, made before stat. 55 G. 3. c. 192., would pass them without surrender, though it was held that the statute could not alter the construction as to the presumption of intent, and therefore that general words in a devise made before the statute, will (c) See Roe, Lessee of Shell v. Pattison, 16 East, 221. (d) 3 B. & Ad. 664. See Doe dem. Perry v. Wilson, 5 A. & E. 321. (e) 1 Myl. & K. 456. (h) 1 Str. 487. (k) 7 Bing. 275. (g) King v. Turner, 2 Sim. 545. (i) 5 B. & Ad. 695. 1837. DOE dem. against LAWES not 1837. Dor dem. not pass copyholds not surrendered, where there is also freehold property, the want of surrender rebutting the presumption of intent. Here, however, the will of Philip Cawston junior, though made before the statute, contains an express devise of the copyhold. But, further, it is not correct to say that he never was admitted. Sarah Cawston was admitted after the death of Philip Carwston senior. Then, if she was as the plaintiff contends) only tenant for life, Philip Cawston the younger was reversioner in fee. Now the admittance of tenant for life is the admittance of the remainder-man ; Coke, Copyh. s. 41. (a), Church v. Mundy (b); and there can be no distinction, as to this, between a reversioner and a remainder-man (c). Livery of seisin to the particular tenant of the freehold enures to all in remainder and reversion. It is true that the admittance of Sarah was subsequent to the date of the will of Philip Cawston junior. But an admittance of Philip Carston junior would have related, so as to give effect to his will; and, therefore, Sarah's admittance, which has the effect of admitting him, likewise gives effect to the will. In Rex v. Dame St.John Mildmay (d) it was held that an admittance had not relation to a surrender, so as to defeat a forfeiture for felony committed by the surrenderor between the surrender and the admittance; but that rule does not apply to parties claiming, not against the lord, who is a stranger, but through the same party. In Carr dem. Dagwell v. Singer (e) Willes C. J. said (g), “When there is a will and admittance, that has a retrospect to (a) And see ib. sect. 56. p. 130, and suppl. sect. 7. p. 162. (Ed. 1764.) (c) See Bulleyn and Graunt's Case, 1 Leon. 174. (e) 2 Ves, sen. 603. (g) P. 609. the |