holds to be

of Henry VIII. required the tenure to be in soccage, which is Reasons for not the description of copyhold tenure, and, therefore, for that holding copyreason the statutes of wills would not apply to this description of out of the estate. We observe also, that copyholds could not be considered statute. as having been embraced within the intention of those statutes, which was to revive the testamentary power with certain qualifications and restrictions, after the statute made for carrying the possession and legal estate to the use had either suppressed its exercise, or driven it upon new and multiplied expedients for its preservation. The statute of uses had not interfered with the uses raised upon surrenders,(0) those being properly executed by the admittance, which operated as a new grant thereof by the lord made pursuant to the surrender. Neither, indeed, could it be properly said, that copyholds were ever devisable, for a will can have no effect upon them as a will, so that it was always necessary first to pass the estate by a surrender thereof, into the hands of the lord, to such uses as the surrenderer should, by his last will, appoint, and then his will succeeded to this act as an appointment or declaration of the use.()

By thus regarding the surrender as the mean whereby the lands themselves are transferred, and the will as having no specific operation under the statute of wills, but as a mere declaration of a use, or rather an appointment of the person to be admitted upon the surrender, we see the reason (not *always indeed [319] approved of) for holding wills of copyhold lands to be out of the statute of frauds, there being no special provision applicable to copy hold estates contained therein. Accordingly, in Carey v. Askew,(9) it was held by Sir Lloyd Kenyon, Master of the Rolls, that any testamentary paper would be sufficient to pass copy hold lands; and his honour said, he hardly expected to hear it seriously argued it had been held that a will received by the ecclesiastical court will govern the surrender of a copyhold. It

(0) 2 Vez. 257. (p) See the case of Royden v. Malster, 2 Roll. Rep. 383. (q) 2 Brown, C. R. 58.

depend upon the law of those countries, so, if an Englishman being beyond sea, make a will disposing of lands here, such will must have the requisites prescribed by the statute. See Copin v. Copin, 2 P Wms. 290.

Lords Mac

Hardwicke

would be removing landmarks to entertain a doubt upon the subject.

Lord Macclesfield(r) admitted the same doctrine as perfectly clesfield and settled in his time, though certainly not with any approbation of not satisfied its reasons. He said that it was plain, that as to the case which with the rea- 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, t..s

sons.

*[320] Same doc

trine as to trusts of copyholds.

had been adjudged to be good, and his opinion was, never to shake any settled resolution 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 a manner, as by the act of parliament a will of lands ought to be executed; but this case having been ruled otherwise, e would not shake it, though he would not carry it one jot farther. Agreeable to which opinion of Lord Macclesfield was that of Lord Hardwicke in the Attorney-General v. Andrews,(») who, after mentioning this established doctrine in respect to wills of copy holds, observed that, perhaps, if those determinations were now originally to be considered, courts of law and equity would not have gone so far, and that it might be wished it were altered, as it is subject to the same inconvenience as the devise of freehold lands.

*The sentiments of Sir Joseph Jekyll seemed to accord with those of Lord Chancellor Macclesfield, on the impropriety of going one jot farther than the doctrine had already gone in respect to the devises of copyholds; and, therefore, he took a distinction between a devise of the legal estate in a copy hold, duly surrendered to the use of the will of the surrenderer, (as to which he admitted that the attestation of witnesses was not necessary) and the devise of a trust or equity of redemption of a copyhold.This opinion appears in a memorandum of the reporter in 2 P. Wms. 259, annexed to the case of Wagstaff v. Wagstaff,, which was as follows; "Memorandum in Hill. vac. 1727, in a cause at the Rolls, his Honour admitted it to be settled, that where a copyhold in fee is surrendered to the use of one's will, such will, though executed in the presence of one or two witnesses, is (s) 1 Vez. 225.

(r) 2 P. Wms. 258.

good, because it passes by the surrender and not by the will, which is only a declaration to the use of the surrenderer, but that if a copyholder be seised only of the trust or equity of redemp tion of the copyhold, and devise 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 and perjuries, otherwise great inconvenience would arise therefrom; and it is no prejudice to the lord of a manor to comprise the trust of a copyhold within that statute, because the person who has the legal estate in the copyhold, is tenant to the lord, and liable to answer all the services."

But in Tuffnell u. 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 copy holder, 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 *[ 321 ] 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 sta

tute, should be declared, expounded, taken, and judged of estates of fee simple only, which showed 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 copy hold, it was agreed they were well appointed,

The trust of

a copyhold

estate will pass by a will unattested according to the statute of frauds.

[322]

Whether such appointment or declaration of the uses of a copyhold surrendered may be with out writing?

An attested

will of copy

they passing by surrender, and not by will, though there were no witnesses to it."

As to the second question, whether the will of William Springet 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 hììm.”

This doctrine, therefore, upon the statute in respect to copyholds, may be regarded as irreversibly settled upon the *authorities, and it is now a sure proposition, that no attestation is requisite to an instrument in the nature of a will designed to carry into effect a previous simplet surrender of copyhold land to the uses thereof, but that any paper having a testamentary 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 affect ed 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. But regarding them as declarations of uses or trusts, I humbly apprehend there is good ground for holding them to be within the compass of the 7th section of the statute.

As the attestation of three witnesses is not necessary, so nei

hold may be ther has it any efficacy in respect to copyholds; so that if a sur

revoked by

an unattest

ed will.

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

render 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 by one or two witnesses only, or without any attestation at all.(1) But if a surrender be made to the use of a will, to be executed with these or any other solemnities, it is clear that such prescribed requisites must be strictly complied with as in other similar cases.(u)

How far

partakes of the qualities of a will.

It should be observed, before this part of the subject is dis-*[323] missed, that although a will of copyholds is said to work as a such will, declaration or appointment of the use only, and this is the ground though it upon which it is held to stand clear of the clauses regarding operates as an appointwills in the statute of frauds, it partakes of the quality of a will ment or dein many essential particulars; thus it is revocable by alteration claration, or cancelling, and is altogether an ambulatory instrument until the death of the party; so that if the appointee die in the lifetime 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 land, and so, if the subject be personalty, the will must be rendered effective according to the statute in respect to wills of personal estate.(118)

A will dis posing of the equitable es tate in customary free

But although it seems now to be regarded as settled, that the trust or equity of a copy hold estate will pass by a will not execut ed or attested according 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 copy holds, ought a fortiori to be dispensed with in respect to the trust estate in copy holds, yet a different doctrine seems to be es- the statute.

(t) Vid. Burkitt v. Burkitt, 2 Vern. 498. 2 P. Wms. 623.

() Vid. Cotton v. Layer,

holds must

be executed and attested according to

(118) Duke of Marlborough v. Lord Godolphin, 2 Vez. 76, 77, an instrument in its nature testamentary, made in execution of a power, has all the incidents belonging to a will, Hatcher. Curtis, 2 Eq. Ca. Abr. 671. Oke. Heath, 1 Vez. 135. Lawrence. Wallis, 2 Bro. C. R.