By the 6th section, if no disposition by will be made of any estate per water vie of a freehold nature, the same is to be chargeable in the hands of the heir, if it come to him by reason of special occu pancy, as assets by descent, as in the case of freehold laud in fee simple; and hi case there be no special occupant of any estate per aster vie, whether freehold or customary freehold, tenant right, custom ary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it is to go to the executor or administrator of the party that had the estate by virtue of the grant; and if the estate come to the executor or adminis trator either by reason of a special occu pancy or by virtue of the act, it is to be assets in his hands, and to go and be ap plied and distributed in the same manner as the personal estate of the testator or intestate. By the 26th section a general device of the testator's lands is to include copyholds, unless a contrary intention appear by the will ; which is an altera tion of the old rule whereby copyholds did not pass under a general device of " lands, tenements, and hereditaments," or other general words descriptive of real estate, unless the copyholds had been sur rendered to the use of the will, or the testator had no freehold lands upon which it could operate. And besides the above mentioned changes relating peculiarly to copyholds, all the other enactments of the act, including that which prescribes the formalities to be observed in making a will, are applicable to estates of copyhold or customary tenure.
Copyholds cannot be seized upon an outlawry, and not being expressly men tioned in the Statute of Westminster which introduced the elegit, could not be taken under it upon a judgment against the copyholder; but by the 11th section of the 1 & 2 Viet. c. 110, copyholds are made subject to execution by judgment creditors in the same manner as free holds.
Copyhold lands belonging to traders have been subjected to the operation of the bankrupt laws (scat. 6 Geo. IV. c. 16, § 68 and 69; 3 & 4 Wm. IV. c. 74, § 66); and by stet. 3 & 4 Wm. IV. c. 104, and copyhold lands which a man has not by his last will charged with or devised subject to the payment of his debts, are rendered assets to be ad ministered in a court of equity for the payment both of specialty and simple contract debts. Copyholds are not liable (except by special custom) to the inci dents of cmiesy or dower. The latter, I where authorized by the custom, is called the widow's " free bench." These estates, being considered continuations of that of the deceased tenant, are perfected without admittance. A purchaser or devisee of copyholds has an incomplete title until admittance, but the customary heir is so far legal owner of the land before ad- I mittance, that he can surrender it or maintain an action of trespass or eject ment in respect of it. The lord may by a temporary seizure of the land compel an heir or devisee to come in and be ad mitted; and he is himself compellable by a mandamus of the Court of King's Bench to admit any tenant, whether claiming by descent or otherwise.
By the general custom of all manors, every copyholder may make a lease for any term of years, if he can obtain a licence from the lord, and even without such licence he may demise for one year, and in some manors for a longer term ; and the interest thus created is not of a customary nature, but a legal estate for years, of the same kind as if it had been created out of a freehold interest. But every demise without licence for a longer period than the custom warrants, and in general, every alienation contrary to the nature of customary tenure, as a feoffment with livery of seisin, is followed by a forfeiture to the lord. A copy hold estate may also be forfeited by waste; as by cutting down timber, or opening mines, when such acts are not warranted by the custom. In the absence of such special custom, the general rule seems to be that the right of property both in trees and mines belongs to the lord, while only a possessory interest is vested in the tenant; but neither can the lord without the consent of the tenant, nor the tenant without the licence of the lord, cut down trees, or open and work new mines. In like manner forfeiture may be incurred by an inclosure or other alteration of the boundaries of an estate, refusal to attend the customary courts, or to perform the services, or to pay the rent or fine incident to the tenure. The 9th section of the 1 Wm. IV. c. 65, protects infants, lunatics, and married women from the last-men tioned cause of forfeiture. In case of felony or treason being committed by a copyholder, the lord has the absolute benefit of the forfeiture, unless it has been expressly provided otherwise by act of parliament. In all cases of forfeiture the lord may recover the forfeited estate by ejectment, without prejudice to the rights of the (if any there be) in reversion or remainder. He may waive the forfeiture by a subsequent act of recognition of the tenure. IChe does not take advantage of the forfeiture for twenty years, his right to do so is barred by the act for the Limitation of Actions, 3 & 4 Wm. IV. And if he neglect to take advantage of the forfeiture in his life-time, his heir cannot avail himself of it.
The lord may also become entitled to a customary tenement by escheat for want of heirs. Formerly where a copy hold was surrendered to a mortgagee and his heirs, and no condition was expressed in the surrender, and the mortgagee died intestate and without an heir, the lord was entitled to enter for escheat To remedy this, the 4 & 5 Win. IV. c. 23, enacts that where a trustee or mortgagee of lands of any tenure whatsoever dies without an heir, the Court of Chancery may appoint a person to convey or sur render the legal estate for the benefit of the persons entitled to the equitable in terest in the property, and provides against the future escheat or forfeiture of lands by reason of the attainder or conviction of trustees or mortgagees who have no beneficial interest therein.