Page:The English Reports v1 1900.pdf/961

Andrew Burton being seised of a copyhold estate, held of the manor of Oakham cum Barlethorpe, in the county of Rutland, and having issue by his first wife, Andrew, his eldest son, and the appellant Mary, and by the respondent Sarah his second wife, the other respondent, and Bartin; he, on the 1st of May 1704, made a surrender of all his copyhold messuages, lands, and tenements, with the appurtenances, into the hands of the lord of the said manor, by the acceptance of Hugh Ashton, one of the customary tenants thereof; to such uses as he the said Andrew Burton should, by his last will in writing, limit, declare, and appoint.

A few days afterwards, Burton made his will, dated the 11th of May 1704; and thereby devised all his freehold lands in Barlethorpe, to his said son Andrew, and the heirs male of his body; remainder to his son Cornelius, (the respondent,) and the heirs male of his body; remainder to his son Bartin, and the heirs male of his body with remainder to his own right heirs. And then reciting, that he had made a surrender of all his copyhold lands and tenements in Barlethorpe aforesaid, to the uses of his will; he declared the uses of such surrender to be, to the use of his said son Andrew, and the heirs male of his body; remainder to the use of his said son Cornelius, and the heirs male of his body; remainder to the use of his said son Bartin, and the heirs male of his body; with remainder to his own right heirs. The testator then gave the profits both of the said freehold and copyhold pre-[282]-mises to the respondent Sarah his wife, towards educating his children, until his son Andrew should attain his age of twenty-one; he gave to the appellant Mary, two Exchequer annuities of £14 per ann. each, and £800 in money, in full for her portion, to be paid on the day of her marriage; provided she married with the consent and approbation of John Noell, Esq. and the respondent Sarah, or one of them; but if she married without such consent and approbation, then he gave her only the said two annuities.

In April 1706, the testator died; and in May 1707, Hugh Ashton, who took the surrender, and in whose hands the same was left, in order to be presented, also died; but without having made any such presentment.

In October 1711, Andrew the son died intestate and unmarried, without having ever been admitted to this copyhold estate, although the tenants thereof had attorned to him and the surrender not being yet found. the appellant Mary claimed to be entitled, as the sister and heir at law of Andrew, and prevailed with the tenants to attorn to her, and the other appellant her husband.

The surrender being at length found, the respondent Cornelius, by the other respondent his mother and next friend, in Trinity term 1712, exhibited his bill in the Court of Chancery, against the appellants and their tenants; praying, that the want of a surrender to this copyhold estate, duly presented, might be supplied in his favour; and that he might hold and enjoy the same according to the limitations of his father's will.

Hereupon the appellants filed their cross bill, to be quieted in the possession of the premises; and to discover what provision was made for the respondent Cornelius, by the will of his said father.

Both causes being at issue, and witnesses examined, the same were heard at the Rolls, on the 3d of July 1713, when his Honour was of opinion, that the surrender ought to be made good; and therefore decreed, that the said Cornelius should hold and enjoy the copyhold premises, according to the said testator's will; and that the appellants should account for the rents and profits thereof.