Infra, c. 5. ton, 1 Ves, 121. Doe v. Vernon, 7 East, 8. 24. devisor had only the equitable interest, and the legal in trustees, was sufficient to pass the copyhold. 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. 24. 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,-1. 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. II. That the interest taken by the party named as devisee was, till admittance, an equitable intcrest only; and that such was the interest which Lady Harriet had as devisee in remainder, Earl William never having been admitted. III. 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. Macnamara 25. It was ruled by Lord Talbot, that where a copy- King v. King, holder has mortgaged his copyhold, and the mortgagee is admitted; the mortgagor, not having the legal estate of the copyhold in him, has no estate that he can surrender; and therefore may devise the copyhold premises without any surrender. 26. 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 adopted on the authority of the following case. v. Jones, S. P. But an equitabarred by a will. ble entail is not Hudson, Vern. 583. 27. A. was tenant in tail of the trust of a copyhold, Otway v. with remainder to J. S., and requested the trustees to 2 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 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 suf ficient to bar the entail of a trust. 28. 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. 1 Hen. Black. 29. Thus in a modern case, where it was contended Rose v. Lowe, by the counsel, that the equitable entail of copyholds 461. 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." 30. All those who are capable of devising freehold estates may also dispose of copyholds by will; but a married woman cannot give a copyhold estate by will. And where a woman surrendered to the use of her will, and afterwards married, it was held that the surrender was suspended during the marriage; and that a disposition by will of the copyhold by the wife was void; notwithstanding that by articles, previous to the marriage, the husband had agreed that she should have power to devise it. 31. Ann Thornbury, widow, surrendered a copyhold to the use of her will; soon after she married; but previous thereto she entered into articles, reciting the surrender, and that the intended husband agreed that she should have power to settle her estate, or to devise the same, during coverture, without his contradiction. The wife made her will, reciting her power under the articles; and the question was, whether it was good. Lord Ch. J. Willes delivered the opinion of the Court, and laid down these two propositions: 1. That a feme covert could not make a will of lands. II. That the surrender by her when sole, became void; or at least was suspended by the marriage. As to the first, it was contrary to the 34 & 35 Hen. VIII. that a feme covert should make a will; for by that statute, wills made by feme coverts were void in law. But it was argued that the consent of the husband, by the articles, gave her the power of devising, though by law she could not otherwise do it; and many cases were cited to prove this doctrine, but they were all cases of wills of personal estate, made by virtue of such agreement; and there could be no doubt but the husband might give her a power to dispose of her personal estate, because by the marriage he had the sole property in, and power over it; but it was otherwise of lands of inheritance, belonging to the wife; and he could not give her such a power to make a will, in prejudice of her heir at law. Judgment that the will was void. a copyhold may 32. Not only estates in possession, but also estates What estate in in remainder and reversion in a copyhold may be de- be devised. vised. And in the case of a joint tenancy, the surrender of one of the joint tenants to the use of his will, operates as a severance of the joint tenancy. Porter v. 33. Thus Lord Coke says, if two joint tenants be of 1 Inst. 59. b. copyhold lands in fee, and the one out of Court, accord- Porter, ing to the custom, surrenders his part to the use of his Cro. Ja. 100. will, and devises it to a stranger in fee, and dies, and at the next Court the surrender is presented; by the surrender and presentment the jointure was severed, and the devisee ought to be admitted to the moiety of the land; for now by relation the estate of the land was bound by the surrender. Statute of frauds. What is required by this statute. Writing. SECTION 1. As the statutes of wills did not require any precise form or ceremony in a devise of lands, but only 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., usually called the Statute of Frauds, "That all devises and bequests of any 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. II. That it be signed by the party himself, or by some other in his presence, and by his express directions. III. That it be attested by three or four witnesses, 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 |