Lord Ch. J. Willes said, he was the less concerned at differing in opinion in this case, because he thought the opinion of his brethren attended with less inconvenience than his. He agreed that an estate tail in copyhold was not created by custom, but custom cooperating with the statute; and that if it might be created by custom, some way to bar it must be found out, to prevent a perpetuity. He agreed also that a surrender would bar such estates, if there was a custom for it, according to the express words of Co. Lit. 60. And Lord Coke would never have said, that if an estate may be created by custom, a surrender by custom will bar it; if it was then established that a surrender without a custom would bar. His opinion therefore was, that there must be a custom to make a surrender good. If there was no other way to bar, he admitted a surrender would, without a custom, from necessity, to avoid a perpetuity; but if there was a way of barring, there was an end of that question. He thought a recovery without custom would bar; and if so, there was no occasion for a surrender to bar. As a recovery might be suffered in the lord's court, he could not think a surrender would bar: but he was satisfied, that unless this came to be the established opinion, great inconvenience would arise, and hoped his brother's opinion would determine it; but he could not think the law was so. The occasion of this method was from the ignorance of stewards, who knew not how to suffer a recovery, and therefore chose to do it by surrender.

That as his brother Abney, before his death, declared himself of opinion with his two brothers, judgement must be in support of the surrender.

22. Where the legal estate in a copyhold is out- An equitable standing, the person entitled to the equitable interest Interest is

devisable

without a Surrender.

Davie v.
Beardsham,

may devise it without a surrender; for otherwise iť could not be disposed of by will, as a person who has not the legal estate cannot make a surrender..

23. A person agreed for the purchase of copyhokd 1Cha. Ca. 39. lands, which were surrendered out of court to his 2 Freem. 157. use; but before admittance he died, having made his will after the contract, and thereby devised the

Term R.

601.

copyholds.

It was declared by the Court to be clear that the copyholds so agreed for passed by the will; for the Tit. 37. c. 1. purchaser had an equity to recover the land, and the vendor stood trusted for him, or as he should appoint, till a conveyance executed.

$7.

3 Atk. 73.

Car v. Ellison, 24. The Solicitor General submitted, that a devise of a copyhold estate, without a surrender, where the devisor had only the equitable interest, and the legal in trustees, was sufficient to pass the copyhold.

infra, c. 5.

Allen v. Poulton, 1 Ves. 121.

Doe v.
Vernon,
7 East; 8.

Lord Hardwicke declared his opinion, that the trust. of these copyholds would-pass, without a surrender to the uses of the will. There had been several cases so determined, but particularly Tuffnell v. Page. Because the surrender must be by the person who had the legal estate; and when there was no legal estate in the party who had the beneficial interest, it might pass by a will, as well as other lands. But in the case of a descent, the person so taking cannot devise without a surrender.

25. Thomas Earl of Strafford surrendered certain copyhold estates to the use of his will; and devised them to his only son William in tail, remainder to his three daughters, of whom Lady Harriet Vernon was one, in fee. Lady Harriet made her will in 1779, by which she devised all her real estates to her second son, and died in 1786. William Earl of Strafford survived her, and died without issue, in 1791;

having been admitted. Lady Harriet did not surrender her estate in reversion to the use of her will; and the question was, whether it passed by it.

It was contended on behalf of the devisee,1st, That the legal estate in a copyhold surrendered to the use of a will, remained in the surrenderor, and on his death descended to his heir, till admittance of some person, having relation to that surrender. 2d, That the interest taken by the party named as devisee was, till admittance, an equitable interest only; and that such was the interest which Lady Harriet had as devisee in remainder, Earl William never having been admitted. 3d, That Lady Harriet might devise such her equitable interest, without any surrender. The Court of King's Bench held, that the devisee of Lady Harriet, though admitted, could not recover against her heir at law, who had also been admitted, in ejectment. If he had any title, it was in equity. 26. It was ruled by Lord Talbot, that where a King v. copyholder has mortgaged his copyhold, and the 3p. Wins. mortgagee is admitted; the mortgagor, not having 359. the legal estate of the copyhold in him, has no estate Macnamara that he can surrender; and therefore may devise the copyhold premises without any surrender.

King,

P.

v. Jones,

1 Bro. R. 481. S. P.

But an equit

able Entail is

not barred by

27. An opinion formerly prevailed, that a devise alone would bar the entail of a trust estate in a copyhold, without a surrender; which was probably a Devise. adopted on the authority of the following case.

28. A. was tenant in tail of the trust of a copyhold, Otway v. Hudson, with remainder to J. S., and requested the trustees to 2 Vern. 583. surrender to him in tail; which they refusing, he brought a bill to compel them; and they put in their answers. Then A. died; but, pending the suit, he went to the lord's court and desired to be permitted to surrender, which was refused, because the legal

Rose v.

Lowe,

461.

estate was in the trustees; upon which A. made his will, and devised the premises to his wife.

Lord Cowper decreed the estate to go according to the will, there having been no laches in the testator and he having devised the estate to the uses and purposes in his will, his Lordship conceived that was sufficient to bar the entail of a trust.

29. The decision in the above case appears to have been founded on the circumstance, that the person entitled to the entailed trust estate, had done every thing in his power to procure the legal estate; and therefore does not establish any general principle: and it is now understood, that an equitable estate tail, in a copyhold, must be barred in the same manner as a legal one.

30. Thus in a modern case, where it was contended 1 Hen. Black. by the counsel, that the equitable entail of copyholds might be barred by a mere devise; Lord Loughborough said-"Now, though it is true that the devise of an equity in a copyhold requires no surrender, yet that is where the testator has a devisable estate: the entail must first be barred; the party must have done some antecedent act, to enable him to devise. Here no such thing was done, and the will of T. W. H. did not operate long; there was no length of possession against the entail, on which to presume a surrender."

Where a Sur

render will be supplied. Tit. 37. c. 1. $105.

31. It has been stated in the preceding title, that the Court of Chancery will supply the surrender of a copyhold, in favour of creditors, wife, and children; and therefore if a person devises a copyhold for the benefit of persons of this kind, without surrendering to the use of his will, a court of equity will supply the defect.

The principle upon which the Court goes is, that 3Bro. R.230. whenever a man having power over an estate, whether

ownership or not, in discharge of moral or natural obligations, shows an intention to execute such

power,

the Court will operate upon the conscience of the heir, to make him perfect this intention.

32. In the case of creditors, the Court will only ForCreditors. supply a surrender where the other estates, which are liable to the payment of the debts, are not sufficient.

1 P. Wms.

33. A person devised all his real estates to trustees Drake v. for payment of his debts; and having freehold and Robinson, copyhold, he neglected to surrender the copyhold 238. to the use of his will. Upon an application to the Rafter v. Stock, Court of Chancery to supply a surrender of the copy. 1 Ab. Eq. hold, the Court directed that the master should first 123. see whether there was enough, without the copyhold, v. Eley.: for payment of debts.

Bixbey

2 Bro. K.

325.

Mallabar v.

34. J. S. devised his real estate to be sold, for payment of debts, and certain pecuniary legacies; Mallabar, and, subject thereto, he devised his personal estate to his sister.

Lord Talbot refused to supply the defect of a surrender of the copyhold to the use of the will, against the heir, if the other estates sufficed to pay the debts, and dismissed the bill with costs as to this point; it having been confessed by the answer, that the testator's other estate, exclusive of the copyhold, was more than sufficient to pay the debts.

Ca. temp.

Talbot, 78.

35. With respect to a wife, the Court, in supplying For a Wife. a surrender in her favour, respects the claim of the heir so far, that it will not interpose, if the heir would thereby be left unprovided for. But in a modern case the Court supplied a surrender in fayour v. Gibson, of a wife, against a distant heir, not provided for by

But in a Chapman

3Bro. R. 229.