Copy holds now descend to the heir-at law according to the rules that regulate the descent of all other kinds of land, under the 3 & 4 Wm. I V. c. 106.
The Statutes of Wills (32 Hen. VIII. c. 1, and 34 & 35 Hen. VIII. c. 5) do not include copyholds, and therefore it was formerly necessary, in order to enable a person to dispose of copy holds by will, that he should first have surrendered them to the use of his will, as it was called. This ceremony was rendered unnecessary in most cases by the 55 Geo. III. c. 192. This statute, however, did not apply to customary freeholds, nor to cases where there was no custom to surrender to the use of a will, nor did it extend to estates of customary tenure not being copyhold, though the distinction between them is little more than nominal. There were also some customary freeholds which were neither devisable at law nor capable of being conveyed or surrendered to the use of a will ; and it was even thought doubtful whether a custom against a sur render of copyholds to the use of a will might not be supported. But though a surrender to the use of a will might be dispensed with, admittance of the devisor before the date of the will was necessary in all cases except that of a person claim ing as heir of the person last admitted. In the case of a surrender the legal estate remained in the surrenderor till the stir renderee was admitted, and therefore the surrenderee had nothing to dispose of but his right to admittance, which could not be devised. Also the 12th section of the Statute of Frauds, whereby estates pur outer vie were made devisable, did not extend to copyholds. By the 1st section of the 1 Vict. c. 26, the last statute which relates to wills and testaments, the 55 Geo. III. C. 192, and the above-mentioned enact ment of the Statute of Frauds, are repealed; and by the 3rd section the power of dis position by will is extended to customary freeholds and tenant right estates, and all estates of a customary or copyhold tenure, without the necessity of any surrender or admittance, and notwithstanding the want of a custom to devise a surrender to the use of a will ; and to all estates per cutter vie, whether of customary freehold, tenant right, customary, or copyhold tenure. The 4th section provides that where any real estate of the nature of customary freehold, or tenant right, or customary or copyhold, might by the custom of the manor of which the same is holden, have been sur rendered to the use of a will, and the tes tator shall not have surrendered the same, no person claiming to be entitled under his will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been due in respect of the surrender of such estate, or the presentment, regis tering, and enrolment of such surrender to the use of his will. And also, that
where the testator, being entitled to-ad mission to any real estate, and upon such admission to surrender the same to the use of his will, shall not have been ad mitted thereto, no person claiming to be entitled to such real estate in consequence of such will shall he entitled to admission, except on payment of all such stamp duties, fees, fine, and sums of money as would have been due in respect of the admittance of the testator to such real estate, the surrender to the use of his will, the presentment, registering, or enrolment of such surrender ; all such stamp-duties, fees, flue, or sums of money, to be paid in addition to the stamp-duties, fees, fine, or sums of' money due on the admittance of the person so claiming to be entitled to such real estate.
By the 5th section, when any real estate of the nature of customary' free hold, or tenant right, or customary, or copyhold, is disposed of by will, the lord of the manor, or reputed manor, of which such real estate is holden, or his steward, or the deputy of such steward, is to cause the will by which such disposition is made, or an extract thereof, to be entered on the Court Rolls ; and when any trusts are declared by the will, it is not to be neces sary to enter the declaration of such trusts, but it is to be sufficient to state in the entry on the Court Rolls that such real estate is subject to the trusts declared by the will ; and when such real estate could not have been disposed of by will, except by virtue of the act, the same fine, heriot dues, duties, and services are to be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of such real estate. Aud the lord is, as against the devisee, to have the same remedy fi,r recovering and enforcing such fine, heriot dues, duties, and services as he is entitled to against the customary heir in case of a descent.