der to the use of a Will. But as the statute applies only to Wills made since the passing of the statute, it is still necessary to advert to the doctrines of Equity respecting the supply of a Surrender.

A Court of Equity will supply the want of a Surrender of a Copyhold Estate, in favour of a Purchaser for a valuable consideration, against the party who ought to have made the Surrender, or his Heir (t). A mortgagee, therefore, who is considered as a Purchaser pro tanto, may have a Surrender supplied, and even against a subsequent Purchaser if he had notice of the Mortgage (u). A Surrender will not, however, be supplied against the Heir, in the case of a voluntary Conveyance (x).

If a Testator has by his Will, expressed a clear, unequivocal intention (y), to pass a Copyhold, or a limited Interest in a Copyhold (z), (a remote reversion only (a ;) but has omitted to make a Surrender to the use of his Will, the Court will supply the Surrender, if the devise of the Copyhold is in favour of Creditors (b), a Wife (c), or younger Children (d); but the Court will not supply a Surrender in favour of

(t) Barker v. Hill, 2 Ch. Rep. 218.

(u) Jennings v. Moore, 2 Vern. 609, S. C. on appeal. 2 Bro. P. C. 278. Patteson v. Thompson, Finch, 272.

(x) Vane v. Fletcher, 1 P. Wms. 354.

(y) Kightley v. Kightley,

2 Ves. Jun. 332.

(z) See Marston against Gowan, 3 Bro. C. C. 170. (a) Cook v. Arnham, 3. P. Wms. 287.

Grandchildren (e), or illegitimate children (ƒ), or a Sister of the Testator (g). The principle on which relief is administered, seems to be, that wherever a man having Power over an Estate, shows an intention to execute such Power, in discharge of natural or moral obligations, the Court will operate upon the conscience of the Heir, to make him perfect that intention (h). The idea of supplying a Surrender was, originally, a bold one; and seems to have arisen out of some of the very extraordinary decisions upon the Statute of Charitable Uses (i), 43 Eliz. c. 4. At first, it seems, the Court supplied the defect in favour of Creditors, and then extended the doctrine in favour of younger Children, upon the idea, that younger children unprovided for must be considered as creditors (k).

A defective Surrender is not supplied in favour of Creditors, except where it is absolutely necessary for the payment of debts, and they would, otherwise, be unpaid. If, therefore, Freehold and Copyhold Estates be charged by a Will with the payment of debts; so long as any Freehold Estate remains

(e) As to grand-children, see Kettle and Townshend, Salk. 187. decided by Lord Somers, but reversed in House of Lords; see Show. P. C. but this reversal has been disapproved. See Hills v. Downton, 5 Ves. 565. Watts v. Bullas, 1 P. Wms. 61, and note; and see Chapman against Gibson, 3 Bro. C. C. 231; but adhered to by Lord Eldon in Perry v. Whitehead, 6 Ves. 544; and see 2 Ves. 582. Elton v. Elton, 3 Atk. 508. Goodwin and Goodwin, 1 V.s. 228.

(f) Crickett, v. Dolby, 3 Ves.

12: Bramhall v. Hall, Ambl. 467. S. C. 2 Eden 220.

(g) Goodwin v. Goodwin, 1 Ves. 228.

(h) Chapman against Gibson, 3 Bro. C. C. 230; and see Hills v. Downton, 5 Ves. 564. Tollet and Tollet, 2 P. Wms. 489.

(1) See Duke's Charitable Uses, and what is said in Rumbold v. Rumbold, 3 Ves. 69; and the remarkable Decision there alluded to..

(k) So said Arg. in Whitcombe v. Whitcombe, Prec. Ch. 289; and see Hills v. Downton, 5 Ves. 563.

applicable to that purpose, a Surrender of the Copyhold will not be supplied, notwithstanding the express intention of the Testator to charge the Copyhold rateably with, or even in preference to, the Freehold (). But this is to be understood of the legal estate only; for an equitable Estate of Copyhold will pass by such devise without Surrender (m); as, not having the legal Estate, the Testator could not surrender (n).

The want of a Surrender will be supplied in favour of Creditors, if there be general words used in the devise, such as, messuages, lands, tenements, and hereditaments," though the Copyhold Estates are not expressly mentioned (0); but it will not on such words supply a Surrender in favour of a Widow, or younger children (p).

Surrenders will be supplied in case of a Deed or a Will (9) in favour of younger children, but they must be unprovided for (r) (unless by the Will under which

() Mallabar v. Mallabar, For. 78. Ithell v. Beane, 1 Ves. 215. Drake v. Robinson, 1 P. Wms. 443. Hellier v. Tarrant, in Addenda to 3d edition of Forrester, p. 287, etc. and the cases there mentioned, and Growrock v. Smith, 2 Cox 397; but see Bixby against Eley, 2 Bro. C. C. 325.

(m) Macnamara v. Jones, 1 Bro. C. C. 482. Gibson v. Lord Mountfort, 1 Ves. 489. Allen v. Poulton, 1 Ves. 121; & see Hawkins v. Leigh, 1 Atk. 388. Macey v. Shurmer, 1 Atk. 390. Car v. Ellison, 3 Atk. 75. King v. King, 3 P. Wms. 358. (n) Tuffnell v. Page, 2 Atk. 38. S. C. Barn. 6.

(0) Vid. Drake v. Robinson, 1 P. Wms. 442; and see also Haslewood v. Pope, 3 P. Wms.

p. 322. Lindopp against Eborall, 3 Bro. C. C. 189. Kidney v. Coussmaker, 12 Ves. 157. In Milbourne v. Milbourne, 1 Cox 247, Sir Lloyd Kenyon, M. R. said, alluding to Drake v. Robinson, I cannot understand Lord Macclesfield's distinction between the sons and creditors, but it is now certainly established."

(p) See Byas v. Byas, 2 Ves. 164.

(q) Rodgers v. Marshall, 17 Ves. 295.

(r) Lindopp v. Eborall, 3 Bro. C. C. 189. Mr. Coxe in his note to Watts v. Bullas, 1 P. Wms. 60, seems to think that it is unimportant whether the younger child is unprovided for or not, and see Tudor v. Anson, Ves. 420.

they claim the Copyhold (s), and a provision must have been made for the heir, either by the father or a stranger, it being unimportant by whom or how he is provided for (t), whether by settlement, or in any other way (u); and the Court will not enter into a consideration of the quantum of the provision (x); but some provision, it seems, there must be (y), and that it should exist at the time when the Bill is filed (2). This doctrine, however, is not applicable to any heir but a child (a), or, as it seems, a grandchild (b); it does not apply to a collateral heir (c), or hæres factus (d).

(s) Cooke v. Arnham, For. 36, S. C. 3 P. Wms. 283, and also in MS. under title of

Cooke v. Arnold. Sampson v. Sampson, 2 Ves. and Bea. 339, 340. Ross v. Ross, 1 Eq. Cas. Abr. 124. Milbourne v. Milbourne, 1 Cox 247.

(t) Pike against White, 3 Bro. C. C. 288.

(u) Hawkins v. Leigh, 1 Atk. 380.; but see 3 Atk. 183. (x) Cooke v, Arnham, 3 P. Wms. 283. S. C. MS. Burton v. Floyd, 6 Vin. 56. pl. 20. Garn v. Garn, 16 Ves. 268.

(y) Ibid. and see Chapman v. Gibson, 3 Bro. C. C. 229. Hawkins v. Leigh, 1 Atk. 388. Macey v. Shurmer, 1 Atk. 390; and see Briscoe v. Cartright, Gilb. Eq. Rep. 121. Hicken v. Hicken, Vin. Abr. tit. "Copyhold," (M. A.) Ca. 20. p. 59. There has been a difference of opinion, whether a surrender is to be supplied for the wife against an heir, unprovided for, when that heir is the son of the devisor? Lord Alvanley thought, in such case, it ought not to be supplied; [Chapman v. Gibson, 3 Bro. 229.] Lord

Rosslyn, on the contrary, thought that the Court ought never to enter into the consideration whether the heir was provided for ; [Hills v. Downton, 5 Ves. 557,] but in neither case was the point decided, there being only a collateral heir in the former case, and the heir was provided for in the latter; but according, it seems, to the opinion of Sir William Grant, M. R. it would not be supplied against a son, or even a grandson, who was an unprovided heir. See Rodgers v. Marshall, 17 Ves. 294, and the observations of Lord Alvanley on Hills v. Downton, Sugden on Powers, Appendix, No. 6. p. 550. 1st. Edit.

(z) Cooper v. Cooper, 2 Vern. 265. S. C. 2 Freem. 17. Prec. Ch. 32.

(a) Chapman v. Gibson, 3 Bro. C. C. 230.

(b) Rodgers v. Marshall, 17 Ves. 297.

(c) Chapman v. Gibson, 16 Ves. 92. Fielding v. Winwood, 16 Ves. 90.

(d) Smith v. Baker, 1 Atk. 386.

If the heir mortgage the Copyhold to one, without notice of the devise, and there have been laches in the devisee, the surrender will not be supplied as against such mortgagee (e).

A Surrender will in some cases be supplied in favour of an eldest son; as in a case of Gavelkind Copyhold, where the intent of the Will appears to be, that the eldest son should have the Copyhold, paying a legacy thereout to the younger son (f).

Where the want of a Surrender is supplied for creditors, an account will also be directed of the rents and profits from the time the copyhold estates are held to pass; for, from that time the customary heir is a mere trustee and this, though the heir be an infant (g); but in the case of a younger child guilty of great laches in not asserting his claim, (as for fourteen years,) an Account was decreed only from the time of filing the bill (h).

The plaintiff, where a Surrender is supplied, usually pays the costs (i).

In cases where there are joint bonds the Court has in causes, as well as in bankruptcy (k), sometimes inferred from the nature of the condition and of the transaction, that it was made joint, by mistake, and has rectified it (1); decreeing, in a cause, that a new bond shall be executed joint and several; and, in

(e) Weeks v. Gore, Vin. Abr. tit. "Copyhold, (M. A.) Cas. 24. 6 Vin. 57.

(f) Bradley v. Bradley, Vern. 163, and the cases mentioned in note to Watts and Bullas, 1 P. Wms. 60.

(g) Kidney v. Coussmaker, 12 Ves. 158.

(h) Cook v. Arnham, 3 P. Wms. 288, in note 1; and S. C. MS.

(1) Banks v. Denshaw, 3 Atk. 587. S. C. 1 Ves. 63.

(k) See ex parte Symonds, 1 Cox 200.

(1) Simpson Atk. 33.

v. Vaughan, 2