Lord Mansfield said, when a man republishes his will, the effect is, that the terms and words of the will should be construed to speak with regard to the property he is seised of at the time of the date of the republication; just the same as if he had such additional property at the time of making his will. Therefore, if one devises lands by the name of B. C. and D. and purchases new lands, and republishes his will, the republication does not concern such new lands, because the will speaks only of the particular lands, B. C. and D. But if the testator in his will says, "I give all my real estate ;" a republication will affect such newly-purchased lands, because it is then the same as if the testator had made a new will. Apply this rule to the case of a surrender, and I am of opinion that the surrenderor may express himself, so as to make it relate to a will actually made; and that the copyhold lands so surrendered will pass by it. Suppose a testator, seised of copyhold lands, makes his will without a surrender; if he afterwards surrender them to the use of his wil, such surrender will clearly make his will good, and is effectual to pass them; because it only obviates the mode and form of conveyance. What has the testator done here? Having made his will, and declared his lands to uses, he surrenders his newly-purchased copyholds to the uses, intents, and purposes declared, or to be declared, in his will. It is precisely the same thing as if he had said, "And whereas I have made a will so and so, and devised all my lands to I. S. to such and such uses; I mean these newly-purchased lands should pass to the same uses." The Court certified that the surrender did, by express reference to the uses declared by the will, adopt and apply the words of the will to the copyhold lands, as if the testator had been seised thereof at the time of making the said will; and therefore they were subject to the same uses, to which all the 8 Ves. 256. testator's copyhold lands were devised. Att. Gen. v. Vigor, Devise to the DE SECTION 1. EVISES are in some cases void ab initio ; as where the testator devises what the law already gives, or in mortmain; or where any fraud has been practised on the testator. Devises may also become void by an event subsequent to the will; as where the devisee dies in the lifetime of the testator: and devises are void where they are totally uncertain. 2. With respect to the first sort of devises that are Heir at Law. void ab initio, it is a rule of law, that where a testator makes the same disposition of his estate as the law would have done if he had been silent, the will being unnecessary, is void. Therefore if a person devises his lands to his heir at law in fee, it is a nullity, and the heir will take by descent, as his better title; for the descent strengthens the title, by taking away the entry of such as may possibly Plowd. 545. have a right to the lands; whereas if the heir takes 1 Inst. 12 b." by the devise, he is then only in by purchase. 2 Saund. 7. n. 3. This rule applies to wills made in pursuance of Tit. 32. c. 16. powers, as well as to devises deriving their effect from § 23. the statute of wills. 4. If a person devises lands to his wife for life, re- Baspool's mainder in fee to I. S. who is his heir at law, it is case, 2 Leon. 101. re- Hurst v. Winchelsea, a void devise as to the remainder; because the version would have descended to I. S. after the de- 1 Black. R. termination of the particular estate. 187. Trigg, 5. The same rule is applied to copyholds; and Smith v. therefore a surrender of a copyhold to the use of a 1 Stra. 487. will, and a devise thereof to the heir at law, will not give the devisee an estate by purchase. the 6. Although the devisor charges the estate with Though payment of debts, or with portions to his charged with younger Debts. children, yet if he afterwards devises the estate to Fearne's his heir at law in fee, it will be void; and the heir Opin. 229. will take by descent. v. Pretty, 7. A person devised to each of his younger children Haynworth 20% when they attained the age of 21 years, and Cro. Eliz. devised all his estates to his eldest son, to hold to 833. 919. him and his heirs, upon condition that he should pay to his other children the said sums appointed to them; and if he did not pay the same, then the Emerson▾. lands to go to the younger children and their heirs. 1 Ld. Kaym. Adjudged that the eldest son took by descent. Inchbird, 728. 8. A person seised in fee, devised lands to his wife Clarke v, Smith, for life, and after her decease, to his next heir at Com. R. 72. law, and to his or her heirs; provided such heir should pay 1000l. to such person or persons as his wife should appoint. It was resolved that the heir took by descent, and not by the will. And it would be mischievous if every little legacy should alter the course Allen v. 1 Black. R. 22. The Devisee must be sole Heir. Reading v. 1 Salk. 242. of descent, upon which the heir might plead to the obligation of the ancestor, riens per descent. 9. In an action of debt on the bond of the father, to whom the defendant was heir, the plea was riens per descent; the fact was, that the father had devised his lands to the defendant, charged with debts; and the question was, whether this made him a purchaser. The Court said, that a charge on the estate did not alter the manner of the heir's taking the land. A devise was void where it gave the same estate as would be taken by descent. Judgment for the plaintiff. 10. The devisee must be sole heir to the lands devised; for if he is only one of the heirs, he will take under the devise. 11. A. B. having two daughters, one of them had issue a son, and died. A. B. devised all his estate 2 Ld. Raym. to this son of his daughter in fee; and the question Com. R. 123. was, whether the son should take all by this devise, 829. A Difference in the Estate renders the Devise good. p. 545. Scott v.Scott, or one moiety by descent, and the other by devise; for there could not be a descent of a moiety to one coparcener as heir: one could not plead a descent uni filiæ et cohæredi; but it was a descent to all. It was resolved that the grandson took by devise. 12. Where an estate is devised to an heir at law, different in point of quantity from that which he would take by descent, the devise shall prevail, and the devisee take under it as a purchaser. And therefore it is laid down in Plowden, that if a man devises his land to his son and heir, to have to him and the heirs of his body, this is a good devise; because it is another estate than he would have had by descent. 13. A person devised to his eldest son, and to his heirs and assigns, all other his real estate not before devised; nevertheless, in case he should die without issue, not having attained twenty-one, then from |