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Hills v. Downton, 5 Ves. 557.

Fielding v.
Winwood,
16 Ves. 90.

For younger
Children.

124.

Pike v.
White,
3 Bro. R.
229.

the testator, though provided for aliunde. And in another case, the want of a surrender was supplied, in favour of a widow, against coheiresses, daughters of the devisor, and infant grand-daughters, by deceased daughters; the Chancellor being of opinion that the Court was to look only to the object, not to the circumstances of the parties; as whether the heir had a provision or not.

36. With respect to younger children, there have been various opinions as to the circumstances under which the Court ought to interfere. It was formerly held that the Court would not supply a surrender in

Ross v. Ross, favour of younger children, where the heir would be 1 Ab. Eq. thereby disinherited, or the younger children put in a better situation than the elder son. Afterwards it. was laid down, that if the heir was provided for, though not by the testator, but aliunde, a surrender would be supplied in favour of the younger children ; that the Court would not inquire into the quantum of the provision; and that a younger child being put in a better condition than the elder, was no objec

Kettle v.
Townsend,

tion.

37. A surrender will not be supplied in favour of 1 Salk. 187. a grandson. This was determined by the House of Lords in the reign of King William, contrary to the opinion of Lord Somers; whose decree was reversed. And though this determination of the Lords has been often objected to, yet it remains unshaken.

Perry v.

Whitehead, 6 Ves. 544.

A Surrender not supplied inless the Intent is apparent.

38. Where there is a general devise, equally applicable to freehold and copyhold estates, and the testator has freehold estates to satisfy the words of the will, a court of equity will not supply a surrender because the intent is not apparent to pass the copy, holds.

1 Ab. Eq.

Bullock,

39. A person seised of freehold and copyhold lands Ross v. Ross, in Bereford, devised all his lands in Bereford to his 124. wife and her heirs, without having surrendered the copyhold to the use of his will. The Court refused Bullock v. to supply the want of a surrender; because the words 2 Ab. Eq. of the devise were satisfied by the freehold lands which passed by the will; and it was not certain that Casborne, the testator intended to give the copyholds.

40. A person having freehold and copyhold estates, devised all the rest and residue of his estate to his wife in fee; but did not surrender his copyholds to the use of his will. The widow insisted that equity cught to supply a surrender.

231.

Challis v.

Prec. in Cha. 408..

Byas v. Byas, 2 Ves. 164.

Sir J. Strange, M. R.-"There is no case where there is freehold as well as copyhold, and no notice taken of the copyhold in the will, that the Court has supplied the want of a surrender. Where copyhold lands are devised expressly to wife, children, or for creditors, nothing passes in point of law, for want of a surrender: however, a court of equity supplies it in these favourable circumstances, for the purposes of the will, but not for others; which is on the plain declaration of the testator, by expressly naming copyhold estates. If he had none but copyholds, all my cal estate would have been sufficient to pass the copy- infra, c. 10. hold, though no surrender had been made to the use of the will; but the general heir at law, or heir by particular custom, has always been so favoured, as not to be disinherited by implication, or inference from the particular wording of the will. The cases that have been, have turned on the construction of the words; upon the question of fact, whether the testator had what would answer the words of his will, on which the words would operate. Then the sur

render should not be supplied; as was the case before Lord Talbot in 1735, and the case of Bethlem Hospital, 10 June 1756: that all my lands would not pass copyhold lands not surrendered, if there were other lands to satisfy it. But if surrendered, that will explain the general words, and pass it; there is that Gurney, cited which would come within the description of real estate. Then without surrender to the use of the will, or mention of copyhold, the Court will not take 15 Ves. 390. it from the heir.

Brooke v.

5. Ves. 559.

Judd v.
Pratt,

The Heir sometimes put to his Election.

Graves v. Forman, cited 3 Ves. 67.

Frank v.
Standish,

cited 15 Ves.
390.

Rumbold v.
Rumbold,
3 Ves. 65.

41. Where the intention of a testator to pass his copyhold estates is clear, and the heir takes any benefit under the will, he must make his election, either to surrender the copyhold to the uses of the will, or to relinquish the benefit of such will.

42. There was a devise of freehold and copyhold estates in strict settlement, with a remainder for life to the heir at law, after estates tail to the first and other sons of the first devisee. Lord Hardwicke held that the heir must give up that remote remainder, or surrender the copyhold to the use of the will.

43. Sir Thomas Rumbold devised in these words: "All the residue of my estates, as well freehold as copyhold, the copyhold part thereof having been previously surrendered to the use of my will," upon several trusts, in favour of his wife and children. The only trust for his eldest son and heir was an annuity of 300 1. for life, remainder to his wife and children. The testator having never surrendered his copyhold to the use of his will, it was held a mistaken description, and that the copyhold did not pass; and the annuity being much more valuable, the heir was decreed to elect.

TITLE XXXVIII.

DEVISE.

CHAP. V.

Of the Solemnities necessary to a Devise.

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52. Wills charging Lands are
within the Statute.

53. But not Wills or Codicils
giving Legacies.

58. Wills of Trust Estates are
within the Statute.

60. And of Mortgages and Equi-
ties of Redemption.
62. But not Wills of Copyholds.
68. Or of Terms for Years.
70. Except Terms attendant on
the Inheritance.

72. Wills made abroad within the
Statute.

73. The Execution of a Will may
be proved in Chancery.

A$

SECTION 1.

S the statutes of wills did not require any precise Statute of form or ceremony in a devise of lands, but only Frauds. that it should be in writing; and as lands devisable by custom would pass by a will made by parol only, an infinite number of frauds were thereby committed. To remedy these, it was enacted by the statute 29 Cha. II. c. 3. § 5. "That all devises and bequests of any

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lands or tenements, devisable either by force of the statute of wills, or by this statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed, in the presence of the said devisor, by three or four credible witnesses, or else they shall be utterly void, and of none effect." 2. In consequence of this statute the following circumstances are now absolutely necessary to the validity of a devise. 1°. That it be written. 2°. That it be signed by the party himself, or by some other in his presence, and by his express directions. 3. That it be attested by three witnesses or four, in the presence of the testator.

3. A devise of lands or tenements must be reduced into writing in the lifetime of the devisor; for it is not sufficient that it be put into writing after his death, being first declared by words only; for then it is but a nuncupative will.

4. It is not material upon what matter or stuff, whether paper or parchment, or in what language, whether English, Latin, French, &c., or in what kind of handwriting or character, a devise is written, so that it be fair and legible, and the meaning be sufficiently apparent. Neither is it material whether it be written at large, or by notes usual or unusual ; or whether sums of money given be expressed at full length or in figures; provided it be free from all doubts and ambiguity.

5. Thus where a will, in which legacies charged on lands were written in figures, was scarcely legible; it was referred to a Master to examine and see what

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