case hussey against grills copyhold land be not devisable by will but the  devisee may come and be admit as though his name be insert in the surrender  devise of customary freehold where there be no custom to surrender to use of a  will must be accord to the statute of fraud lib Reg a foe b in chancery rd  mark Elizabeth prowse seize of a customary freehold within the manor of Stoke  Climsland in Cornwall surrender it to Thomas Jones and his heir who afterward  declare ambler er p ambler the trust to be for Elizabeth prowse her heir and  assign and covenant to surrender to such use as she shall by deed execute in  the presence of two witness or by her last will appoint Elizabeth prowse  afterward make her will on that January in write but not attest accord to  statute of fraud and devise the customary estate to Margaret archer her heir  and assign for ever she after that make a codicil of her own handwriting and  thereby revoke the devise in her will of the customary estate and give it to  Margaret archer for life only with remainder over Q whether the codicil be a  good revocation of the will and passes the customary estate Lord Hardwicke  chancellor I be of opinion that the interest in the customary estate pass by  the will and that the codicil can operate as a revocation though of the  handwriting of the testatrix Q whether these customary freehold be in point of  conveyance or devise by will so far like copyhold that the determination with  respect to the latter shall govern here in like manner and parity of reason  court ought to avoid make large and liberal construction to take case out of  statute of fraud that statute be make to ascertain property the word of it be  very extensive all devise and bequest of any land c devisable either by force  of the statute of will or c whether land or interest in land do not pass by  will in a case not comprise in the statute copyhold land be not devisable by  will nothing passes out of the surrender till will make but when it be make  the land do not pass by the will but it be the same as if insert in the  surrender the devisee may come and be admit ambler on the foot of the  surrender and will take together the same as if his name have be insert in the  surrender itself the ground of my opinion in Tuffnell v page atk be knight  sequitur law Q whether the trust of a customary freehold shall follow the rule  as to copyhold customary freehold and copyhold differ extreme in their nature  the latter be of a base tenure and by the old commonlaw be hold at the will of  the lord but be now establish on a more firm foot customary freehold never be  of that base kind but this will not govern the present case Jones be a trustee  and the legal estate be in he there be no evidence that there can be in this  manor a surrender of a customary freehold to the use of a will agree there  never be any such the foundation of the determination as to copyhold be that  the party may dispose by surrender and will as there be no method of pass the  legal estate of these customary freehold in this way there be no reason to  hold they out of the statute of fraud and as the legal estate be not so be not  the trust there be something arise out of the declaration of trust which  induce I not to make a liberal and large construction that be as two witness  be require to the execution by deed it seem strange to think in case of  execution by will it may be on lose paper without any witness at all it appear  from lib Reg that the testatrix by her will after recite that t Jones then  stand tenant for her use of diverse land in Stoke Climsland parcel of her  customary land part of the duchy of Cornwall charge all the say customary land  with certain annuity and direct that Jones shall stand seize of the customary  land in trust in the first place to secure payment of the say annuity and  subject thereto she devise all the say customary land to the defendant mary  archer her heir and assign for ever and charge as well all the say customary  land as all her land of freehold or inheritance with her debt and with the  pecuniary legacy give by her will or which she may give by any codicil she  afterward make a codicil in her own handwriting but which be without date or  signature or the name of any witness it appear by the courtrolls of the manor  that the customary land be before the make of the say will surrender to the  use of Jones and his heir on trust for answer the several trustestates and  purpose which she shall by her last will direct and that Jones be admit  thereto accord the decree declare the codicil not be execute accord to the  statute of fraud void as to any part of the say testatrixs real estate and  that m archer be entitle to say testatrixs ambler er p customary land devise  by her will in feesimple subject to the say annuity N B it be not state in l r  whether the will be bring be not attest Mr sergeant Scriven in his valuable  treatise on copyhold remark upon this case that if it be consider a authority  a devise of a equitable interest in customary freehold must be attest accord  to the statute of fraud and in another case do v Danvers east the court will  appear to have feel a distinction as to the relevancy of that stat between a  devise of customary land pass by deed and admittance and the devise of the  like land pass by a surrender and admittance but as it be now full settle that  a customary freeholder have no freehold interest in the strict legal sense of  that word even when the estate passes by deed and admittance the court must  have be influence in the case of Hussey v grills suppose that case to have be  right decide by the circumstance of the will alone be operative in a devise of  customary freehold pass by deed and admittance whereas the will be to be deem  declaratory only of the use of the surrender when land of that tenure pass by  surrender and admittance the same as in the devise of ordinary copyhold Vol in  the case of Willan v Lancaster hear before the master of the roll Tuesday Nov  that the testator be seize of a customary estate of inheritance hold of the  manor of Shap in Westmoreland devise it by a codicil attest by two witness  only the land of this manor be not devisable but be transfer by deed the  operative word be bargain sale and surrender and on the presentment of this  deed by the verdict of the homage at a court hold of the manor admittance be  grant to the alienees or admittance be not unfrequent grant by the Lord on the  production of the deed out of court the testator have transfer the estate in  the proper manner to a trustee in trust for he the testator for life remainder  for such purpose as he shall appoint by deed or by will or codicil legal  execute it be hold that the equitable interest in the estate do not pass by  the codicil and the principal case of Hussey v grills be cite see  attorneygeneral v Andrews Ves see Gibson v Roger ante Goodwin v Kilsa post see  I W