the cafe of Mumma v. Mumma, 2 Vern. 19. t and though two receipts are produced under the fon's hand, for the ufe of the father, I think that will not alter the cafe, for the fon, being then under age, could give no other receipt in discharge of the tenants who held by leafe from the father; and in this cafe I am of opinion, parol evidence may be admitted, tho' indeed improper, when offered against the legal operation of a will, or an implied truft, but here it is in fupport of law and equity too (a).

(a) 1 Vern, 467. The fon had devised these copyhold lands in thefe words: Eq. Cat. Abr. 382. "As to my copyhold which I have or intend to furrender hales v. Shales. "to the use of my will, I give, &c. and the remaining third Gray . Gray, I Ch. Caf. 296. "I give to the child or children with which my wife is now "enfeint, and to the heirs of fuch child or children for ever; "and if fuch child or children fhould not be born alive, or "being born alive should die, without leaving lawful issue, or before he or she has difpofed of the fame, I give it to my wife."

66

The wife was not with child.

Lord Chancellor: I am of opinion it was well devised, and paffed by the will, fo as to have a surrender supplied, and that it ought to be conftrued as if he had faid, And if no child be born alive.

His Lordship declared the copyhold eftate at Little Shellwood was purchased by John Taylor, for the benefit of, and by way of advancement for Thomas Taylor the fon, and that in equity the plaintiffs are intitled thereto under his will, and ought to have the defect of the furrender to the ufe of his will fupplied, and decreed the defendant, the heir at law of teftator, to furrender the copyhold land to her.

}

Plaintiff.

Cafe 177.

A. gives all his
unfettled,

Defendants. lands unes good a

and all his

and chattels to
his wife for life,

children in iuch

BENEZER and Mary Hawkins had iffue, the plaintiff and afterwards their eldest son and heir, and the defendants William and to his younger Mary Hawkins. The father made his will in this manner : "As for my worldly eftate and goods, I difpofe thereof as fol- fuld think fit

manner as fhe

to difpofe of the fame. Teftator died feifed of freehold lands and cuftomary meffuages, which were unfettled, and not furrendred to the ufe of his will. The lands fettled being only freehold, naturally the lands unfettled must be the fame, and therefore the copyhold lands did not país.

There the father purchased a copyhold in the name of the cefendant his eldest fon, an infant of 11 years old, and enjoyed during his life, and afterwards having fuirendred it to the ufe of his will, deviled it to his wife for life, remainder to his younger children, and made other provifions for the defendant, who having recovered in ejectment, the bill was to be relieved against it. Lord Chancellor Jefferies conceived that he being but an infant at the time of the purchase, though the father did enjoy during his life, that the purchase was an advancement for the fon, and not a ruft for the father. Eq. Caf. Abr. 382. pl. 8. lows,

Cc 2

1

Where there is

"lows, videlicet, In regard a great part of my lands are al"ready fettled, and the great tendernefs and affection, and prudent management I have always found in my wife Ca"therine, for the kindeft return and acknowledgment, there"fore, I give all my lands unfettled, and all my goods and "chattels of what nature or kind foever, to my faid wife for "life, and afterwards to my younger children, in such man66 ner as she shall think fit to dispose of the fame.”

The plaintiff's father died feifed of freehold lands in feefimple, and alfo feifed to him and his heirs of customary meffuages, held of the manor of H. and B. and are unfettled lands, and the latter not furrendered to the ufe of his will.

The bill brought for an account, and that the plaintiffs intereft in the feveral eftates may be afcertained and settled. Lord Chancellor: The only queftion is, as to the copyhold eftate, whether it paffed by the will, and this must depend upon circumftances.

Where there is a general devife of lands, and there is no no furrender of furrender of the copyhold lands to the ufe of his will, the concopyhold lands to the ufe of the ftruction at law is, that they do not pass by the will, espewill, they will cially, where there are other words which may answer the not pafs by a ge- intention of the teftator, mentioned in the will, for copyhold lands are not properly the fubject of a devife, as they pass by the furrender, and not by the will.

neral devife of lands.

Though there

fhould be no fur

I do not think the outfet of the will, my worldly eflate and goods will carry it further than the fubfequent words, all my lands unfettled, and all my goods, &c. for as the lands fettled were only freehold, naturally the lands unfettled must be of the fame kind: Therefore I am of opinion upon the words of the will, the copyhold lands will not pafs.

It has been faid, a will is fufficient to pafs an equity in render to the ufe Copyhold lands, as well as an equity in freehold lands, though of a will, it is there fhould be no furrender to the use of a will; and the obfufficient to pass servation is juft; but that is not the prefent cafe, for here an equity in co- there is more than an equity, because the copyhold lands actupyhold lands.

ally defcend upon the fon, as heir to his father.

This court will It is the general rule of this court, that they will not fupply not fupply the the defect of a furrender of copyhold eftates, even in favour defect of a fur- of a wife or younger children, to the difinherifon of an heir, hold eftates, in where he is unprovided for.

render of copy

favour of a wife

or younger children, to the difinherison of an heir unprovided for.

Difinherifon not

confined to def.

But this word difinherifon is not merely confined to an heir cent, for if an who is barred of his defcent; for if he is provided for by heir is provided fettlement, or any other way, he cannot be faid to be dif for by fettleinherited; but here I do not fee any provifion at all for the heir. I do therefore declare, that the plaintiff is intitled to the copyhold lands in queftion, the fame not paffing by his father's will,

ment, or any

other way, not difinherited.

2

December

December the 7th, 1739.

Richard Macey and others v. Nicholas Shurmer.

NICHOLAS Shurmer by his will "devifed to his wife, Cafe 178. "her heirs and affigns, feveral lands therein mentioned, N. S. by will "and all his copyhold lands in Surrey, and his freehold and devifes to his "copyhold in Middlefex, to his wife Mary, her heirs and wife and her "affigns for ever, being well affured fhe would at her decease ❝ difpofe of the lands amongst all or fuch of his children as "fhe in her difcretion fhould think moft proper, and as they "by their conduct should deserve."

heirs, all his

freehold and copyhold lands, being well affured the would, at her deceafe, dfpofe of the lands

amongst all, or fuch of his children, as by their conduct should deserve it.

daughter and her

Mary Shurmer by her will "gave to her daughter in the The wife devifes "following words, I hereby give and devife to my dear daugh- all the freehold ❝ter Martha Shurmer, all my freehold and copyhold meffuages, lands, except the and copy hold "lands and hereditaments whatsoever (except the copyhold copyhold in " in Hampton aforefaid), to hold to my daughter, her heirs and Hampton, to her "affigns for ever, fubject nevertheless to the payment of the heirs, and that juft debts that are ftill due, and owing from my late huf- copyhold to the "band, and alfo to the payment of my own juft debts. And heir at law of "I give to my fon Nicholas Shurmer, and to his heirs and his heirs. "affigns for ever, all that copyhold meffuage, with the appurtenances "in the manor of Hampton. And I give to my daughter "Martha Shurmer, all my goods and chattels whatsoever, and "do make her my folé executrix."

the teftator and

At the time of her executing the will, the teftatrix gave di- Teftatrix gave rections that the furrender to the use of the will fhould be directions for furrenders of the drawn up to two copyholders of the refpective manors, but no respective copyfuch tenants being prefent, the fame, though written, was not hold estates, to perfected; the afterwards went to the fteward, but he was not the ule of the in town for the furrender to be prefented, and fhe foon afterwards died fuddenly.

will, but died before they were perfected The heir not being

totally unprovided for, the court fupplied the furrender. The word fuch, gave the wife the power to devife the whole to one child, if she had thought fit.

The defendant, the heir at law, infifts the copyhold eftates belong to him, for want of a furrender.

Therefore the end of the bill was to reftrain defendant from being admitted tenant to the copyhold, and that the freehold and copyhold lands, or a fufficient part, may be fold, and the money paid to the plaintiffs the creditors, and the remainder to Martha, the only child unprovided for.

Lord Chancellor. It is clear, that under the word such of his children, the wife of the teftator, though a trustee in fome fort, had a full power to devile the whole to the daughter, if fhe had thought fit.

Cc 3

As

The truft of a

copyhold not

As to the want of a furrender, the wife being no more than a trustee, the truft only of a copyhold not necessary to be neceffary be fur furrendered, but if it was neceffary, I fhould be inclined to

rendered.

fupply it.

I think it might have been doubtful, whether the mother could have fubjected the eftate for payment of her own, or even her husband's debts, but the devifee of the wife fubmitting to that, and defiring it might be fold for payment of debts, the court will not interpofe.

If the heir had been totally unprovided for, I should have doubted, whether a furrender could be fupplied; but it appearing that one copyhold defcended to him, and another had been devifed under the mother's will, and no proof of the value, I cannot refufe to fupply the furrender.

I do therefore declare, that the wills of Nicholas Shurmer, and Mary Shurmer are well proved, and ought to be established, and do decree that a fufficient part of the freehold and copyhold, devised to plaintiff Martha be fold, and the money applied in satisfaction of the creditors of Nicholas and Mary Shurmer, and the furplus to be paid to Martha Shurmer, and in cafe part of the copyhold remains unfold, I direct that the defendant do furrender the fame to Martha.

Auguft the 1ft, 1744.

Ex parte George Cafwell.

Vide title Power, under the divifion, Of the right Execution of a
Power, and where a Defect therein will be fupplied.

Vide title Bankrupt, under the divifion, Rule as to Copyholds, under
Commiffions of Bankrups.

САР.

С А Р. ХХХІІ.

Credites and Dobfoz

See 2 Tr Atk.

56. pl. 52, 242.

pl. 192, 294,

(A) that conveyanance og difpofition shall be fraudulent as to 417. pl. 275, creditors. P. 391.

419, 436, 446. 3 Atk. Rep.

(B) What conveyance oz difpofition shall be good against creditors, 268, 269, 327,

P. 391.

(C) General cales of creditogs and debtos, P. 392.

485, 572, pl

217.

(A) What convegance 02 difpofition shall be fraudulent as

Vide title Agreements, Articles, and Covenants, under the divifion,
Voluntary Agreements, in what cafes to be performed.

November the 6th, 1745.

Walker and others v. Burrows.

Vide title Bankrupt, under the divifion, Rule as to Affignees.

(B) What conveyance 02 disposition shall be good against creditos.

October the 25th, 1744.

Brown v. Jones and others.

Vide title Bankrupt, under the divifion, Where Affignees are liable to the fame Equity with the Bankrupt.