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is tenant to the lord, and liable to answer all the services.”

But in Tuffnell v. Page, before Lord Hardwicke in 1740, a different opinion, and which seems to be the doctrine as now understood, was maintained by that chancellor on this subject. His Lordship said, he would consider the case in two lights—first, whether the will of a copyholder, unattested by witnesses, was sufficient to declare the uses of a surrender, made to the use of a will; and secondly, where there is no surrender, as in the case before him, whether such a will was sufficient to pass the trust of the copyhold lands to the plaintiff.

With respect to the consideration of the question in the first of these lights, his Lordship said, that where a man was seised of copyhold lands and surrendered to the use of his will, and executed a will, though not attested by witnesses, yet it should direct the uses of the surrender; for the clause in the statute of frauds and perjuries, which required the testator's signing in the presence of three witnesses, and their attestation in his presence, was confined only to such estates as passed by the statute of wills 34 H. 8. c. 5. which was an act to explain one made in the 32d of the same King; and which at the close of the section enacted, that the words, estate of inheritance, in the former statute, should be declared, expounded, taken, and judged of estates of fee simple only, which shewed plainly, that it did not extend to customary estates, and had been so settled ever since the case of the Attorney General v. Barnes. This was reported in 2 Vernon, where it was said in page 398, “ as to such of the lands as were copyhold, it was agreed they were well appointed, they passing by surrender and not by will, though there were no witnesses to it.”

As to the second question, whether the will in question would pass the trust of the copyhold lands, his Lordship said, that where the legal estate was in trustees, the cestuy que trust consequently could not surrender, but the lands should, notwithstanding, pass by this devise according to the general rule that equity follows the law; for a copyhold would pass under a will without three witnesses, or where there were no witnesses at all; and if this nicety was not required in passing the legal estate, a fortiori it was not in passing the equitable : and, therefore, the cestuy que trust might, by the same kind of instrument, dispose of the trust estate, as if he had the legal estate in him."

It may, therefore, be regarded as gettled, that no attestation is requisite to an instrument in the nature of a will designed to carry into effect a previous simple * surrender of copyhold land to the uses thereof, but that any paper having a testamentary

That is, where the surrender is silent as to the form.

Whether an appointment or declaration of the uses of a copyhold surrendered may be without writing?

operation, and received in the ecclesiastical courts as such, is sufficient. It has even been doubted, whether such testamentary appointment may not be by parol, for if copyholds are not affected either by the statute of wills, 'or by the clause respecting wills in the statute of frauds, a testamentary disposition of them, as such, seems to be no more necessary to be in writing, than the devises by the custom of particular places which operated independently of the statute of wills, and might after that statute, and until the statute of frauds expressly restrained them, have been made by word of mouth; and if such wills of copyholds be regarded as mere appointments, they are still clear of the first and third clauses of the statute-by the exclusive wording of the first, and by the express exception in the last. And by a late case, Doe d. Cook v. Danvers ', it has been determined that they cannot be regarded as declarations of uses or trusts, so as to be within the 7th section of the same statute.

As the attestation of three witnesses is not necesAn attested will be revoked by ax sary, so neither has it any efficacy in respect to unattefted will. copyholds; so that if a surrender be made to such

uses as the surrenderer shall appoint by his will, and he afterwards make his will, executed and attested according to the statute of frauds, such will is nevertheless subject to be revoked or republished by him by any subsequent testamentary paper, attested

7 East 299.

by one or two witnesses only, or without any attestation at all. But if a surrender be made to the use of a will, to be executed with those or any other solemnities, it is clear that such prescribed requisites must be strictly complied with as in other similar cases.

It should be observed, before this part of the sub- How far such

will, though it ject is dismissed, that although a will of copyholds is operates as an said to work as a declaration or appointment of the declaration, par

takes of the quause only, and this is the ground upon which it is lities of a will held to stand clear of the clauses regarding wills in the statute of frauds, it partakes of the quality of a will in many essential particulars; thus it is revocable by alteration or cancelling, and is altogether an ambulatory instrument until the death of the party; so that if the appointee die in the life-time of the testator, I apprehend it to be quite clear that the devise fails; for the act remains incomplete, and the instrument is without operation and mute until the testator's decease. And it is to be remembered, that in respect to freeholds, a will to pass lands in virtue of a power, must have the ceremonies by the statute of Charles made necessary to wills of lands.

But although it seems now to be regarded as set- A will disposing

of the equitable tled, that the trust or equity of a copyhold estate estate in cuswill pass by a will not executed or attested accord- must be execut

tomary freeholds

and attested according to the statute of frauds.

s Vid. Burkitt v. Burkitt, 2 Vem. 498.

Vid. Cotton v. Layer, 2 P.
Wms. 623.

ing to the statute of frauds, upon the principle of equitas sequitur legem, and on the ground that a strictness which had been dispensed with in respect to the legal estate in copyholds, ought a fortiori to be dispensed with in respect to the trust estate in copyholds, yet a different doctrine seems to have obtained concerning the equitable interest of a customary freehold, where there exists no. custom of the manor for surrendering them to the use of a will. This was so held in the case of Hussey v. Grills", where Elizabeth Prowse, being sersed of a customary estate within the manor of Stoke Climsland in Cornwall, surrendered it to Thomas Jones and his heirs, who afterwards declared the trust to be for Elizabeth Prowse, her heirs, and assigns, and covenanted to surrender to such uses, as she should by deed, executed in the presence of two witnesses, or by her last will appoint. ` E. Prowse afterwards made her will on the 24th January 1753, in writing, but not attested according to the statute of frauds; (but which seems to be mistakenly reported (3), as the decision and reasoning of the case plainly supposes and requires the will to have beeen effectual, and consequently executed according to the statute,) and derised the customary estate to Margaret Archer, her heirs and assigns for ever. She afterwards made a codicil in her own hand-writing, but unattested, and there

i Ambl. 299.

(3) The cases in Ambler seem to be a very careless compilation.

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