sent record would be imperfect, being in assumpsit, but containing no promise to pay for the goods, which are stated to have been delivered, and to be still unpaid for. No decision has hitherto approached such a conclusion; nor can we permit a plaintiff to recover in a form of action, the very foundation of which is wanting. Judgment must, therefore, be for the defendant on this demurrer.

1837.

June 8.

Judgment for the defendant (11).

}

DOE d. WINDER AND WIFE v.
ROBERT LAWES AND OTHERS.

Copyhold Admittance - Devise, Construction of.

A testator devised to J. S. all his copyhold in the parish of K, and likewise all monies lent out upon mortgage, bonds, or notes of hand-Held, that an estate for life only passed.

Upon a devise of a copyhold to S. C. for life, she was admitted to hold according to the will. The reversion was not devised, but the heir-at-law of the devisor never having been admitted nor surrendered to the use of his will, devised his reversion to S. C, and died previous to her admittance :-Held, first, that his reversion in the copyhold passed to his devisee.

Second, that the admittance of the devisee for life operated as an admittance of the re

versioner.

Third, that upon the devise of the reversion to S. C, her life estate became merged in the reversion, the admittance to the estate for life became spent, and a second admittance became requisite; consequently the devisee of S. C, who died without any further admittance, had no legal title to the reversion, but the estate vested in her customary heirs, and their title was not affected by the fact of their having been admitted as devisees.

This was an action of ejectment, tried before Lord Denman, C.J., at the Spring Assizes for the county of Surrey, 1835. It was brought to recover one undivided third part of certain copyhold premises, situate at Kingston Bottom, and held of

(11) See Mechelin v. Wallace, 2 Nev. & P. 224; s. c. 6 Law J. Rep. (N.s.) K.B, 217., NEW SERIES, VII.—Q.B.

Mary Winder (the lessor of the plaintiff) is one of three sisters of Philip Cawston the elder, and one of the aunts and coheiresses of Philip Cawston the younger, and claims the property in question as such co-heiress by descent. The descents of the manor are to the youngest son and his heirs; and in default of his son to the youngest daughter and her heirs, and if she die without issue, then to the next-ofkin.

On the 13th of November 1804, the Earl Dysart, the lord of the said manor of Ham, granted to Philip Cawston the elder, two pieces of the waste part of the manor, to hold to him and his heirs, at the will of the lord, according to the custom of the manor, at the yearly rent of 10s. Philip Cawston was thereupon admitted to these copyholds; and, on the 5th of December following, surrendered them to the use of his will. He had made his will on the 29th of September 1791, and afterwards made two codicils; the first of these, dated the 28th of October 1799, related only to personalty. By the will, which was set out in the case, he bequeathed to Sarah his wife, his freehold in Hertfordshire and estate in Petty France, Westminster, all his right and title to the Robinhood premises in Kingston Bottom, in the parish of Ham (county of Surrey), and all his household furniture, &c., together with his clothes and book debts, and his plate and stock in trade, by her freely to be possessed and enjoyed during her life, and at her demise his children to have equal shares. If his loving children die before their mother, Sarah Cawston, she was at her free will to give and bequeath the aforesaid property to whom she might please. The second codicil was as follows: "I likewise give, devise, and bequeath to Sarah Cawston, my dearly beloved wife, all my copyhold in the hamlet of Ham, in the parish of Kingston, in the county of Surrey; and likewise all monies lent out

Ο

upon mortgage, bonds, or notes of hand. P. Cawston, this day, the 20th of September 1825." He had only two children, viz. Philip Cawston and Sarah Cawston. The latter died an infant, before her father. In the year 1811 the testator died, leaving his widow and his son Philip Cawston surviving; and his will and codicils were proved by his widow and executrix in the Prerogative Court of Canterbury, on the 14th of June 1811.

On the 15th of June 1812, at a court held for the manor, the homage presented the death of Philip Cawston, and at the same court, Sarah Cawston, by Philip Cawston, her son, came and brought into court the probate of Philip Cawston's will, and was admitted to hold the lands according to the will of the said Philip Cawston, her late husband, deceased, at the will of the lord, according to the custom. She never surrendered the said premises to the use of her will. Philip Cawston, the son, was never admitted as tenant in reversion or otherwise to the said copyhold premises, nor were they surrendered to the use of his will, which is dated the 18th of March 1811, by which he bequeathed and gave unto his 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."

. He died in 1819 unmarried. By the custom of the manor, after the death of any tenant, his heir cannot give, set, or lay to mortgage any copyhold land before he be admitted, and hath paid his fine according to the custom of the lordship. 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; and on the 15th of February 1826, letters of administration, with the will annexed of Philip Cawston the younger, were granted to her executors, Samuel Baxter and George Smallbones.

On the 25th of July 1824, Sarah Cawston made her will, whereby she devised all her estates freehold and copyhold to Samuel Holden, Daniel Cork, and Samuel

Baxter (the two last of whom were the nephews and heirs-at-law of Philip Cawston the elder), who, at a court of the manor, held on the 18th of 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 of the copyholds in question.

The question for the opinion of the Court was, whether the plaintiff was entitled to recover.

In Michaelmas term, 1836, the case was argued by

Mansel, for the lessors of the plaintiff, who contended, that the widow only took a life estate, and that, her son never having been admitted, no interest passed to her under his will. Her admission only operated for her own life estate, and could not be available as an admission of the remainder-man. As she could not devise the property, it descended upon the heir of P. Cawston the elder, who was the lessor of the plaintiff.

Hodgson, contrà.-The defendants claim under Mrs. Cawston's will, and she had the fee in this estate at the time she made her devise. First, she took an estate in fee from her husband; secondly, if not, she acquired it from her son. The first proposition depends upon the construction of the second codicil. All the cases on this point have been so lately before the Court, that it will not be necessary to recapitulate them, but the principle is, that wherever the words of the will import an intention on the part of the devisor to give his entire estate, it shall pass, though there be not express words of inheritance. That intention may be gathered from the present devise and codicil. The will of Philip Cawston the elder, indeed, was made before the surrender to the use of his will; the first codicil relates to the personalty exclusively, but the second codicil contains the devise of all the testator's copyhold to his wife, together with all money lent out on mortgage bonds. If the maxim, noscitur à socio be applied, this expression will afford a strong argument in favour of the construction contended for, because it is clear that the mere interest of that money is not given, but the whole amount secured

thereby. Doe v. Simpson (1) shews that such an argument may be used. It is, It is, however, necessary to determine what is meant by the word "copyhold." If it be used as an adjective, the Court must supply either the word land or estate; and either would carry the fee. If it be used as a substantive, what can it signify, except all that the devisor held by copy of court roll, and that was an estate in fee? In the will, indeed, the testator used the word freehold alone, with reference to the property in Hertfordshire, and applied the word estate to that in Petty France; and it seems that he considered that both of those terms would have carried the whole fee, because he expressly limited it to an estate for life, which limitation is omitted in the codicil. It seems singular, that after making such a provision for his children in his will, he should totally have omitted it in his codicil if he did not intend that his widow should take the whole estate. But secondly, assuming that an estate for life only passed to Mrs. Cawston, the remainder must have descended upon her son, who was the heir-at-law, and he devised his interest to his mother. It will not be denied, after the cases of Right v. Banks (2) and King v. Turner (3), that an heir may devise copyhold estates descended upon him before admittance. But, in the present case, the heir was admitted both in law and in fact. After the death of the devisor, his widow was admitted in 1812 to hold the lands according to the will of her husband. Assuming that she was only admitted in respect of her life estate, still the admission of the tenant for life enures for the benefit of the estate in remainderCo. Cop. s. 56 (4), Gyppen v. Bunney (5), Church v. Mundy (6). And it is most reasonable that it should, for the admittance is, like the livery of seisin in the case of a freehold, an investiture of the estate, and ought to have a similar extent. Therefore, P. Cawston the younger, having, by the

admission of his mother, been admitted to his reversion in the copyhold, could pass it by his devise. But his will was made in 1811, previous to the admission of his mother; that, however, is immaterial. The admission relates back to the surrender to the use of the will-Carr v. Singer (7), though the surrenderor may, in the interval, be such a tenant of the lord as to be capable of committing a forfeiture of the estate-The King v. Lady Mildmay (8). Here, indeed, it is only necessary to say, that there was a relation to the death of the father. P. Cawston the son has devised his interest to his mother in the fullest terms; then, what is the effect of a devise of a reversion in a copyhold to a tenant for life? In the case of a freehold the estate is immediately enlarged: why should there be any difference in the case of a copyhold? If her acceptance of the reversion should operate as a surrender of her life estate, still she must acquire the whole estate in lieu of it. Then, was any fresh admittance requisite? There was no reason for it. She was already invested with the estate, and was the lord's tenant; her situation, with reference to the lord, was not altered, and if the admission of the tenant for life enures as the admission of those in remainder, there can be no difference in a case where their interest comes to the tenant for life. The lord will be entitled, in either case, to the full fine for the admission to the fee, and he cannot obtain more. The lord, therefore, had no object in calling upon her to be admitted a second time; neither had the parties to the estate, which had been granted to her. Indeed, she could not be admitted a second time without a surrender, and there was no party to whom she could surrender. Mrs. Cawston was then admitted either to an estate in fee under her husband's will, or to a life estate, afterwards enlarged by the devise of her son to an estate in fee. Having been thus admitted, she devised the estate to three persons, two of whom were two of the heirs-at-law of P. Cawston the younger. If, therefore, it should be held that her devise was inoperative, yet the devisees have been admitted, and their admission

(7) 2 Ves. sen. 603. (8) 5 B. & Ad. 254.

will operate according to their legal titleChurch v. Mundy. Two of them would, therefore, be entitled to hold the estate as heirs, and the admission of the third devisee is a mere nullity. Mansel replied, and referred to Doe d. Whitbread v. Jenney (9).

Cur, adv. vult.

In Trinity term last, the judgment of the Court was delivered by

LORD DENMAN, C.J.-It is admitted in this case, that the lessor of the plaintiff, Mary Winder, as one of the customary co-heiresses both of Philip Cawston the father, and Philip Cawston the son, has a good title to the copyhold in dispute; unless the inheritance of it has been effectively disposed of, either by the last codicil to the will of the former, or by the will of the latter. Two points have accordingly been made in the argument for the defendant: the first, that an estate in fee passed by the codicil to the will of Philip Cawston, sen., to Sarah Cawston, under whom the defendants claim; the second, which arises only if the first is not sustainable, that she took the same estate under the will of her son, and that it has passed to the defendants, or some of them.

The codicil is as follows: "I likewise give, &c. to Sarah, my dearly beloved wife, all my copyhold in the hamlet of Ham, in the parish of Kingston, and in the county of Surrey, and likewise all monies lent out upon mortgage, bonds, or notes of hand." It was contended, that the words "all my copyhold" were equivalent "to all that I hold by copy," and, if so read, even by themselves must be taken to import, not merely the land so held, but the interest in the land, i. e. the estate; that this meaning, if doubtful in itself, was rendered clear by the juxtaposition in the same sentence of the words "all monies lent out upon mortgage," &c.; as to which it was clear that the testator's whole interest would pass absolutely to Sarah Cawston. Moreover, reading the codicil in question with the will itself and the prior codicil, it is said that a clear intention on the part of the testator may be collected to die intestate as to no part of his property; and fur

(9) 5 East, 522.

ther, that in the will itself, where there was an intention, both as to realty and personalty, to limit the interest of the wife, first given her, to a life estate, the testator, an illiterate person, making his own will, has evinced his own understanding of the manner in which such an intention might properly be carried into effect, by adding express words of restraint; and that a contrary intention to give the whole interest must be inferred from the absence of any such words in the codicil in question.

The argument, therefore, for the defendants rests upon the import of the express words, and upon the evidence of intention to be collected from the face of the will. We are of opinion, that the words themselves, even read as we are desired to read them, and conjoined with the other bequest in the same sentence, are not sufficient to carry the fee-the property appears to us to be described only by its tenure and local situation-and that these words of description do not include the quantity of interest in the testator; see Right v. Sidebotham (10). In Doe v. Child (11) and Doe v. Wright (12), where the same devise received a construction by the Courts of Common Pleas and King's Bench, the words "all my lands, freehold, copyhold, and leasehold, in the county of Essex," were held to pass only an estate for life in the freehold and copyhold; and in Doe d. Norris v. Tucker (13), a case very much resembling, but somewhat stronger than the present, a devise to sons "share and share alike, equally to be parted between them," (after the death of the testator's wife,) of the "above bequeathed lands, goods, and chattels," was held to give them only an estate for life, though the "above bequeathed lands" were first specifically bequeathed for life as "my freehold estate called Pouncetts." The argument, therefore, is reduced to the evidence of intention; and certainly no one can read the will and codicils attentively, without forming at least a strong opinion that the testator intended to give to his wife the whole and absolute interest in the copyhold in

question; but cases too clear and numerous, and standing on too strong a principle to be overruled by us, have decided, that where the words used by a testator in any devise can be satisfied by understanding them in their ordinary meaning (and if the words be technical, the technical is their ordinary meaning), and where the whole of the will does not make it a necessary inference that they were used in any other, the Court cannot give them any other. Our duty is to ascertain the intention of the testator by what he has written; and in so doing, for the sake of uniformity of decision, we must take him to have used his language in its ordinary meaning, if it bears any, and unless by so doing we necessarily contradict an overruling intention unequivocally expressed in the context. Tried by this rule, we think it clear that a life estate only in the copyhold in question passed by the codicil; and we therefore proceed to the second and more important point in the argument for the defendant (14).

The second point is, that Sarah Cawston took an estate in fee in the copyhold, under the will of Philip Cawston her son, which, it is not disputed, contained words sufficiently large for the purpose. This assumes that the reversion descended on him, and the facts stand thus:-Sarah was admitted " to hold according to the will of her husband;" the heir-at-law was never separately admitted, nor did he ever surrender to the use of his will. In 1811, and before the admission of Sarah, he made his will, and devised the reversion to her in fee, and died in 1819. She was not admitted under that will, nor did she administer to it, but she devised over to the defendants, by a will made in 1824, and died in 1825. Two of the defendants are her customary co heirs, and all have been admitted.

As the will of Philip Cawston, junior, contains an express devise of copyholds, and he died after the passing of the 55 Geo. 3. c. 192, it seems clear, upon the words of the statute, and the authority of Doe dem. Smith v. Bird (15), that the mere want of a

(14) See, however, the 1 Vict. c. 26. s. 28, which enacts, "that a devise without any words of limitation shall convey the fee."

(15) 5 B. & Ad. 695; s. c. 3 Law J. Rep. (N.S.) K.B. 78.

surrender by him would be cured: but it was contended, in the first place, that his devise without surrender was inoperative for want of his previous admission. Now, unless there be a distinction in principle as to this point, between the devise of an estate which has descended in possession on the heir-at-law, and that of a reversion so descending, the case of Right v. Banks is a direct and well-considered authority that admittance is not necessary. It is difficult to see how there can be any distinction between the two supposed cases. Upon the death of the father, in the present case, and before the admittance of the widow, the whole legal estate descended in possession on Philip, the heir-at-law-Roe v. Hicks (16). At that time he might have made a valid surrender before admittance; and his will after such surrender, and without any admittance, would have passed the estate. The extent to which the will would have operated beneficially, might have been subject in equity to the equitable rights of the devisee for life under the prior will; but at law the legal estate must have prevailed.

Thus it would have stood if the devisee for life never had been admitted; and this case would then have been precisely the same as that of Right v. Banks. But how can her admittance, her interest being only as tenant for life, prejudice the heir's legal estate, or the operation of his will, beyond the extent of her interest? Her admittance would indeed turn his estate into a reversion; but as a reversioner he would equally be in the seisin as before-he might equally surrender that interest-Colchin v. Colchin (17); indeed, before the passing of the statute, he must equally have surrendered it in order to make an effectual devise: after a surrender, the interest would have been equally devisable-and if so, the statute operates and makes it devisable without such surrender. Accordingly, in the case of King v. Turner (18), it will be seen that the testator, whose devise without admittance was held to be inoperative, was an heir-at-law on whom a copyhold had

(16) 2 Wils. 13, 16. (17) Cro. Eliz. 662.

(18) 2 Sim. 545 ; s. c. 1 Myl. & K. 456; 2 Law J. Rep. (N.s.) Chanc. 188.