ante, § 51.

estate, is, that they constitute a fluctuating charge.
It is impossible previously to ascertain what debts
a man may owe at the time of his death; and it is
difficult to ascertain, when he is making his formal
and regular will, what legacies he may think fit, or
his fortune shall enable him to give. The Court has
therefore said, that when he has by a will duly exe-
cuted, charged debts and legacies, it is only neces-
sary to show that there is a debt, or that there is a
legacy, in order to constitute a charge; for the
moment that character is shown to belong to the
demand, you show that it is already charged upon
the estate. Then an unattested instrument is itself
perfectly competent to give a legacy; and when given,
you predicate of it, that it is a legacy; and then the
charge immediately attaches, by virtue of the exe-
cuted will. But here, the testator says, he does not
now determine that all annuities, and all legacies he
shall hereafter give, shall be charges; but only that if
at some future period he shall think proper to declare
legacies and annuities to be charges upon this real
estate, then the trustees shall pay them out of the
real estate. Therefore not only the legacy is to be
found, but also the will of the testator, to make it a
charge upon this estate; without which it is not a
charge. That is only an attempt to reserve, by a
will duly executed, a power to charge by à will not
duly executed. It is the case of Habergham v.
Vincent. It might as well have been contended in
that instance that there was an adoption into the will
of that future instrument. But the opinion of the
Lord Chancellor and the Judges was, that it was not
competent to a man to give himself such a power;
viz. a power to dispose of land by an unattested in-
strument. That is the reservation this testator

attempts to make; for unless he thinks fit, when he
makes his codicil, to declare his intention that his
land shall be charged with the legacy or annuity, it
shall not be charged. Then it is through the medium
of an unattested instrument that it is to be a charge
upon
land; and that cannot be within that case."

Trust Estates

are within

58. Although a trust estate is now, what a use Wills of was before the statute 27 Hen. VIII., yet it is settled that it can only be devised by a will executed ac- the Statute. cording to the statute of frauds.

2 P. Wms.

59. Lands were conveyed to trustees and their Wagstaff v. heirs, to the use of them and their heirs, in trust, Wagstaff, after raising certain sums of money, to convey the 258. premises to J. S. and his heirs. J. S. by a will, attested by two witnesses only, devised his trust estate to J. N.

Lord Macclesfield said, there could be no question but that a trust of an inheritance could not be devised, otherwise than by a will duly attested by three witnesses, in the same manner as a legal estate; for if the law were otherwise, it would introduce the same inconveniencies as to frauds and perjuries, as were occasioned before the statute by a devise of a legal estate.

3 Atk. 151.

60. An estate in mortgage, though only held as a And of Mortpledge for securing the repayment of money bor- ages and Equities of rowed, can only be devised by a will executed ac- Redemption. cording to the statute of frauds. The same rule applies to an equity of redemption, which is considered as real estate, and similar to a trust.

61. Some modern writers have asserted, that where Tit. 15. c. 2 § 41. a mortgagee gives the money secured by a mortgage by an unattested will, the legal estate in the lands comprised in the mortgage will pass. But I can find no authority for this portion: and I apprehend that

But not Wills of Copybolds.

ante, c. 4.

ante, § 59.

Habergham

v. Vincent, 2 Ves. Jun.

204.

Carey v.
Askew,

nothing more than the money would pass, with a right in equity to call on the heir of the mortgagee for a conveyance of the land.

62. It has been stated, that the statute of wills does not extend to copyhold estates; that the power of devising them is indirectly exercised by means of a surrender to the use of a will: and it has been determined, that in such cases a will need not be executed according to the statute of frauds; because the copyhold passes by the surrender, not by the will; which is only a declaration of the uses of the surrender.

63. Thus in the case of Wagstaff v. Wagstaff, Lord Macclesfield said, "That as to the case which had been put of a copyhold surrendered to the use of a will, and afterwards devised by a will attested by one or two witnesses, this had been adjudged to be good; and his opinion was, never to shake any settled resolutions touching property, or the title of land; it being for the common good that these should be certain and known, however ill-grounded the first resolution might be. But if that had not been settled, it might be more reasonable to say; when I have surrendered my copyhold to the use of my will, a will of this copyhold shall be so executed, and in such manner, as by the act of parliament a will of lands ought to be executed; but this case having been ruled otherwise, he would not shake it; however, he was not for carrying it one jot further."

64. In a modern case, there was a will duly exe

2 Bro. R. 58. cuted to pass lands; and a paper of instructions for a new will, which the testator did not live to execute; but which had been proved in the Ecclesiastical Court as a testament. And one of the questions was, whether copyholds surrendered to the use of the will,

would

pass by the unattested paper. The Master: of the Rolls (Sir L. Kenyon) said it had been held, that a will received by the Ecclesiastical Court, would govern the surrender of a copyhold. It would be removing landmarks to entertain a doubt upon the Doe v. Dansubject. He was clear therefore that the will passed 299. the copyhold.

vers, 7 East,

65. Mr. Peere Williams states it to have been laid 2 P. Wms. down by Sir Joseph Jekyll, that if a copyholder be 261. entitled only to the trust, or equity of redemption of a copyhold, and devises such trust or equity of redemption, there must be three witnesses to the will: for here can be no precedent surrender to the use of the will, to pass this trust; and the trust and equity. of redemption of all lands of inheritance are within the statute of frauds; otherwise great inconveniencies would arise therefrom. But in a subsequent case, Tuffnel v. Lord Hardwicke was of opinion that the trust of Page, a copyhold would pass by a will not attested according to the statute of frauds; as a copyhold surrendered to the use of a will would do; for that equity ought to follow the law, and make it at least as easy to convey a trust, as a legal estate.

2 Atk. 37.

Goodwin v.

Kilshaw,

66. If the surrender of a copyhold to the uses of a will, requires that the will should be attested by Amb. 684. three witnesses, a devise of such copyhold must be so attested; otherwise it will be void.

Grills,

67. A devise of customary freeholds, where there Hussey. is no custom to surrender them to the use of a will, Amb. 299. must be executed according to the statute of frauds; and a trust estate in them must be devised in the same

manner.

for Years.

68. As terms for years already created were dis- Or of Terms posable by testament before the statutes of wills, they are not comprehended within the statute of

ante, 652.

ExceptTerms attendant

on the

frauds, and may therefore be given by a will not executed according to that statute. But it has been already observed, that a term cannot be created by will, unless such will be executed according to the statute of frauds.

69. All wills relating to terms for years must be proved in the ecclesiastical courts having jurisdiction over the place where the lands lie; for otherwise they will have no effect, as to the terms.

70. If however a term for years becomes attendant on the inheritance, it is then considered as part of Inheritance. the inheritance, and not a chattel real; and can only be devised by such á will as would pass the inheritance.

Whitchurch v.

2 P. Wms. 236.

71. Thus where Ed. Whitchurch, having purchased Whitchurch, a term in the name of a trustee, and the inheritance in his own name, by a will not executed according to the statute of frauds, devised the premises to the son of a younger brother; the heir at law of the testator brought her bill in Chancery, in order to compel the executor and devisee to assign over the term to her. It was objected for the defendants, that the executor had assented to the devise; and that the will, though not attested by three witnesses, was good at law to pass the term. But decreed, that as this was a term which would have attended the inheritance, and in equity have gone to the heir, and not to the executor; in which respect it was to be considered as part of the inheritance; so the will, which was not attested by three witnesses, as the law required it to be when land was to pass, should not carry this term. Though it was true, such a will as in the present case, would be sufficient to pass a term in gross, yet should it not pass the trust of a term attendant on the inheritance, nor consequently the term itself.

2 Atk. 72.