of Henry the eighth, which will cause her to be re- DISCONTImitted. As an instance of this the wife's election : After NUANCE OF ESTATE. since the statute of uses. Instances of Lands were given to husband and wife in tail, Remitter remainder to the right heirs of the husband. having issue, the husband alone levied a fine with proclamations to his own use; which barred the her election. issue in tail. He then devised the land to his wife for life, with remainder to a stranger in fee; and charged it with the payment of a rent. The husband died, and his wife entered, claiming only an estate for life, and paid the rent charge, and afterwards died; and it was adjudged that she had waived her prior estate tail (a). The following is another instance of the wife's election: In Hawtrey's case (b), King Henry the eighth, by letters patent, gave lands to husband and wife, and to the heirs of the husband, to hold in capite; the husband enfeoffed A and B to the use of himself and his wife for their lives, with remainder to the use of a younger son for life, with remainder to the husband in fee. The husband died, his heir being within age, and in ward to Queen Elizabeth for other lands in capite; but the wife held the possession, and claimed her first estate. Whether the Queen should have the third part of this land in ward or not depended upon the question, whether the wife was or was not remitted to her first estate? And the Court, after considering the statute of uses and the act of the 32d of Henry the eighth, held that the wife was remitted; for that she had election DISCONTI NUANCE OF ESTATE. Remitter since the statule of uses. Benefits to wife from remitter. The avoidance of intermediate incum brances, and as remitter to the principal draws to it to be in according to the statute of uses, or by the latter statute, since her entry thereby was congeable. In cases where the wife has the power of election, it is presumed that if she and her husband enter under the new defeasible estate, her remitter during the marriage will be sub modo, i. e. until she be at liberty to elect; which will happen if she survive her husband (a). And if she enter generally without expressing in respect of which of her two rights the entry is made, the law will remit her to her first title (b). The beneficial effects of the wife's title by remitter appear from the following observations:-It avoids all grants and incumbrances made between the discontinuance and the remitter. Accordingly, if the discontinuee of the husband grant a rent or make a charge upon the estate, the remitter will defeat them, because the wife by her remitter holds by her prior and paramount title (c). Again, Remitter to the principal remits also to every dants, such thing appendant or accessary to it. all appen remitter to the first defeats sever ances from the latter during the discontinuance. Instances. But there can be no remitter to the accessary if there be none to the principal. Reason. Thus if husband and wife be seised in tail of a manor to which an advowson is appendant, and it is severed from the manor by the discontinuee, or he reserve it to himself in a regrant of the manor to the husband and wife for their lives, in both cases the remitter of the wife to the manor the principal will be a remitter to the advowson the accessary. But if the advowson alone had been regranted, there would have been no remitter of it, because the grant reconveyed a mere title, the right being in the per (a) Co. Litt. 357. (6) Co. Litt. 357. (c) Ibid. 349. NUANCE OF Disadvan son seised of the manor, and upon a bare title there DISCONTI can be no remitter (a); for no person can have or WIFE's claim a right in the accessary who has no right in the ESTATE. principal. This doctrine, as to remitter, applies to all Remitter inheritances regardant, appendant, or appurtenant. since the statute of uses. The above are advantages, amongst others, which the wife derives from her remitter. If she were to take under the statute of uses she would then come to the estate by a new title as a purchaser, and must be liable to all the charges and incumbrances which statute of may have been made upon it since the disconti- purchaser. nuance, and she must lose the accessaries to her estate which had been severed from it or reserved by the deed of regrant. How and to what extent the statute of uses operates in alteration of the common law rule of remitter is the last point to be considered. tages incurred by wife in claiming under the uses as a estates are According to the doctrine of Lord Hobart, before When stated (b), the first taker of every several estate as discontinued well in remainder as in possession, will not be re- no right of mitted when the second or new estate is limited by ing, and the entry existway of use, and the cestuique uses have rights of tion only to recover their old or prior rights or estates. In order to illustrate this ac defeasible estates taken back are by limitation of uses, the sta tute of uses mitter in each in prevents re stance of a Suppose B to have been seised in tail with remainder to C in tail, and to have been disseised by A, who after being in peaceable possession of the estate for five years (c), died seised; and that the tortious fee acquired by the disseisin descended to separate D his heir, by which descent the entry of B was ther in postolled or taken away, and then D the heir limited session or (b) Ante, p. 78. (c) See stat. 32 (a) Co. Litt. 349 b. Hen. 8, c. 33; and supra, p. 64. several and estate, whe remainder. Instances. NUANCE OF WIFE'S ESTATE. DISCONTI- again the estate, by way of use, to B in tail, &c. It seems that the remitter would take place thus-B during his life will not be remitted as he took the first several estate in possession; and if B die without issue, C will not be remitted, because he took the second several estate in remainder. Remitter since the statute of uses. Exception. But it is adjudged that the words of the statute of uses are satisfied by the application of them to the first takers of each several estate as above, and that the persons claiming under each of those persons as the stocks or purchasers, since they take or succeed by descent to their estates, such estates are subject to and regulated by all the rules and incidents of the common law, and consequently to remitter. In the above case then, although B cannot be remitted, yet if he leave issue they will be remitted, because their title is by descent; but if he leave none, as first supposed, then, although C cannot be remitted as the taker of the first several estate in remainder as a purchaser, yet if he leave issue they will be remitted, &c. &c. A case, however, may occur when the taker of a remainder may be remitted contrary to the above doctrine. This will happen when a remitter takes place under a limitation prior to the remainder; and the reason is, that the remitter of a prior estate has the effect of remitting to all subsequent ones dependant upon it. Thus, in the case above proposed, if B died leaving issue, who upon his death are remitted as we have seen, such remitter would be a remitter of Cin remainder, and of all subsequent estates (a). (a) Hob, 256. COPYHOLDS. power to forfeit. In the remainder before mentioned, C has been WIFE'S supposed to be an indifferent person, but the rule would be the same if C were a married woman, the Husband's statute of the 32d of Henry the eighth applying to discontinuances by the husband only, and giving the wife a right of entry in those cases: whereas in the case above supposed, the discontinuance by B turned the remainder in C to a mere right, recoverable by action only, which in regard to remitter, under the statute of uses, placed the wife in the same situation as any other person, and as C as above. IV. It was noticed in the second section that the husband cannot make a discontinuance of his wife's copyhold estates, except there be a special custom enabling him to do so; and that when such a custom prevails the discontinuance is not within the statute of Henry the eighth, considered in the same section; the lord of the manor, therefore, not being bound by it, it is necessary to consider what acts of the husband will be such forfeitures, as to bind the customary estate of his wife after his death. It is presumed that all such acts of the husband as At law. are ruinous to the estate, destructive of the tenure, or tend to deprive the lord of any of his rights, will be a forfeiture of the wife's copyhold estate, and conclude her after her husband's decease. The duty of abstaining from all such acts may be considered as originating in conditions annexed to the estate at the time of its original grant, which are obligatory upon all persons who succeed to the property. From the observance of such conditions married women are not exempted (a), and for which VOL. I. (a) Co. Litt. 246 b. |