ko 



NOTES AND QUERIES. 



[2»d S. VII. Mak. 12. '69. 



special custom — either the widow becomes en- 

 titled to on the decease of the husband, or that 

 which, in like manner, the husband becomes en- 

 titled to on the decease of the wife. It has been 

 sometimes said, possibly more correctly, that free- 

 bench is the widow's estate in such lands as the 

 husband dies seised of, or when, by a particular 

 custom, she may have any estate in lands of which 

 he was seised during the coverture, but which he 

 parted with during his life, that estate is dower. 

 Some have derived the term "freebench" from 

 the fact of the husband or wife on the accession to 

 the estate becoming tenant of the manor, and 

 able to sit on the homage of the court, and hence 

 being denominated benchers. Where the custom 

 does exist, the estate, whether of the husband or 

 wife, is entirely regulated as to quantity and dura- 

 tion by the particular custom of each manor : the 

 having issue is not, as at common law, essential to 

 entitle the husband to the curtesy. In cases where 

 the right of the widow is dependant on the death 

 of the husband seised of the copyhold, it may be 

 defeated by various means, as by an agreement 

 for sale, or by any such act of the husband, made 

 for valuable consideration ; by forfeiture ; by 

 unity of the freehold through enfranchisement ; 

 by a lease with licence, the widow not being en- 

 titled to any part of the rent except by special 

 custom, but she would become entitled at its ex- 

 piration, — indeed by special custom she may avoid 

 the lease ; by admittance under a surrender made 

 by the husband, although the admittance do not 

 take place till after the husband's death, and this 

 rule extends even to the admittance of devisees 

 under a will, where there has been a previous sur- 

 render to the use of the will ; but in manors where 

 no such surrender was necessary, the admittance 

 of the devisee would not alone be sufficient to de- 

 stroy the right ; and perhaps a doubt might be 

 raised whether the statutory enactments on this 

 subject would now, without a surrender, have the 

 effect of defeating the freebench. The right is not 

 destroyed by an escheat to the lord for want of a 

 heir, nor by a divorce a mensa et thoro (equivalent 

 to the novel "judicial separation"), nor by the 

 husband's death without admittance, whether he 

 •was entitled by purchase or descent. Neither 

 freebench nor curtesy can exist in a trust or in an 

 equitable estate. Where the right extends to the 

 whole estate, no admittance is necessary, except 

 by special custom, it being considered a continua- 

 tion of the former estate ; where it extends to a 

 portion only, admission is requisite, entry being 

 necessary ; as is also, in that case, assignment by 

 the heir, the widow's remedy for which in case of 

 refusal is by plaint, in the nature of a writ of 

 dower, in the manor court, at which the homage 

 sever and set out the lands, and can also under 

 the Statute of Merton award damages. 

 In the county of Kent, the husband or wife, as 



the case may be, is entitled to a moiety of all 

 the lands whereof the deceased may have been 

 seised for an estate of inheritance, during the 

 coverture, whether issue born or not ; but the 

 estate is determined by marriage, and the wife 

 loses her estate if she live not chaste, though it 

 appears that by an express custom particular 

 kind of proof of the incontinency might be neces- 

 sary. 



I append a list of some manors in which the 

 custom of freebench prevails, describing, where I 

 have been able to discover them, the particulars 

 of each. Your correspondents could in a short 

 time almost perfect it, and it would then be of 

 considerable value. I think I may assert pretty 

 positively that no such thing is in existence. I 

 have not given the various authorities from which 

 I have prepared the list, on account of the length, 

 but shall be happy to furnish them if desired. 



An Old Pauline. 



P.S. I may mention that I have not met with 

 any instance of the custom of curtesy : it is occa- 

 sionally met with, though more rarely than that of 

 freebench. 



County of Berks. 



1. Chaddleworth, and 2. East and West En- 

 borne. — The custom of these manors is noticed 

 by your correspondent H. H. (ante, p. 105.) It is 

 alluded to in very many books besides that quoted 

 by him. The ceremony was for the widow to 

 come into court riding backwards upon a black 

 ram, having the tail in her hand, and repeating 

 some ridiculous words, which may be found in 

 Bailey's Dictionary ; also in The Spectator, No. 

 614., vol. viii. p. 225., and elsewhere. 



County of Devon. 



3. Torr. — The same custom prevails here. 



County of Dorset. 



4. Loders and Bothenhampton. — The widow of 

 a deceased copyholder has a right to freebench 

 according to the custom of this manor. But I 

 have not discovered the particulars. 



County of Essex. 



5. Westham Burnells and East West Ham. — I 

 believe the widow of a deceased copyholder has a 

 life interest in one moiety of the hereditaments of 

 which the husband died seised. 



6. Withersfield. — If any copyholder die seised 

 of copyhold lands, having a wife at the time of his 

 death, such wife shall hold the same lands during 

 her widowhood for her freebench. 



County of Hereford. 



7. Orleton. — The relict of a copyhold tenant is 

 admitted to all her husband's copyhold lands, dur- 

 ing her life, at the next court after her husband's 

 decease. 



8. Urcbinfield. — In the territory of Urchin- 



