case Wagstaff versus Wagstaff Lord Macclesfield Eq can ab pl trust of land  limit to a and his heir and assign or to such as he or they shall appoint  beneficiary and trust devise these land by a will attest but by two witness  the will void and will not operate as a appointment John Wagstaff seize of  land in fee convey they by lease and release to trustee and their heir to the  use of they and their heir in trust that after such money raise as therein  mention the trustee shall convey the premise to I S his heir and assign or to  such person or person as he or they shall direct the money be raise and I S by  will attest only by two witness devise the premise to I n Obj the trust be  that the trustee shall convey the premise to such person as I S his heir or  assign shall direct this will though not good by way of devise shall however  be effectual as a appointment like a copyhold surrender to the use of a will  which may be devise by a will attest by two witness or one witness only but  Lord chancellor interrupt the counsel and say this be a very plain case that  as to the case peer William which have be put of a copyhold surrender to the  use of a will and afterward devise by a will attest by one or two witness this  have be adjudge to be good and his opinion be never to shake any settle  resolution touch property or the title of land it be for the common good that  these shall be certain and know however ill ground the first resolution may be  but if that have not be settle it may be more reasonable to say when I have  surrender my copyhold to the use of my will a will of this copyhold shall be  so execute and in such a manner as by the act of parliament a will of land  ought to be execute but this case have be rule otherwise he will not shake it  however he be not for carry it one jot further see vol the case of Longford  versus Eyre towards the end of the case that in the other case the copyhold  pass by surrender and not by the will which be only a declaration of the use  of the surrender whereas in the principal case it be no more than a common  trust of land in feesimple videlicet in trust for I S his heir and assign or  such person or person as he or they shall appoint now these last word be no  more than what be imply before expulsion out the dawn queen tacit sew up  nothing service where a trust be limit to a and his heir a may appoint the  trust to I S and I S be then the assignee of a now there can be no question  but that a trust of a inheritance can not be devise otherwise than by a will  attest by three witness in the same manner as a legal estate for if the law be  otherwise it will introduce the same inconvenience as to fraud and perjury as  be occasion before the statute by a devise of a legal estate in feesimple peer  William that in the case of dr Johnson vide vern where a man seize of land in  fee devise they to a charity by a will attest only by two witness Lord Cowper  have decree the same to be void notwithstanding it be there object that the  will may operate as a appointment accord to the statute of Elizabeth of  charitable use dly beside the principal case be much strong against the will  as the same do not refer to the deed of trust but I S have undertake to devise  the land as owner peer William er p thereof without any relation have to the  pretend power which make it like the case put Inst where after the statute of  Henry enable people to dispose by will of two three of their land hold by  knightsservice a mail so seize make a feoff in fee to the use of such person  and for such estate as he shall by will appoint here the fee by operation of  law be hold to continue in the feoff on who limit the estate by his will by  force and in pursuance of his power the use and estate grow out of the feoff  will be good for the whole and the will will be but directory but in case the  feoff have devise the land as owner thereof without any reference to the feoff  or power thereby give there the land pass by the will such will will be good  only as to two three wherefore it be adjudge the principal case that the will  be void and that in the trustee shall convey the premise to the heir at law of  the testator see the next case peer William memorandum in hill vacation in a  cause at the roll his honour admit it to be settle that where a copyhold in  fee be surrender to the use of one will such will though execute in the  presence of one or two witness only be good because it passes by the surrender  and not by the will which be only a declaration of the use of the surrender  but that if a copyholder be seize only of the trust or equity of redemption of  the copyhold and devise such trust or equity of redemption there must be three  witness 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 land of  inheritance be within the statute of fraud and perjury otherwise great  inconvenience will arise therefrom and it be no prejudice to the lord of the  manor to comprise the trust of a copyhold within that statute because the  person who have the legal estate of the copyhold be tenant to the lord and  liable to answer all the service so attorney general v barn vern duke of  Marlborough v Lord Godolphin ves Jones v clough ves Duff v Dalzell bro c c and  a instrument in its nature testamentary make in execution of such power have  all the incident to a will hatcher v Curtis Eq can ab oak v heath ves duke of  Marlborough v Godolphin ub sup Laurence v Wallis bro c c Habergham v Vincent  Ves jun bro c c Tuffnell v page Barnard and atk attorney general v Andrews ves  hark   Litt III b note and or by any write which will be a good will of  personal estate caryi v askew bro c c Cox do v Danvers east but the probate be  not evidence to establish such will as to copyhold estate Jervoise v d of  Northumberland I James W maundrell v maundrell Ves Ves black v Marnell ba be  dow Langley v Sneyd Brod b and therefore a devise of a customary freehold  where there be no custom in the manor to surrender such freehold to the use of  the will must be execute accord to the statute of fraud Hussey v grills Amb by  saint g c will of copyhold estate be make as valid although no surrender have  be make to the use of the will as they will have be if a surrender have be  make see as to the construction of this statute do v Bartle b a but in the  case of Tuffnel versus page pasch the Lord Hardwicke be of opinion that the  trust of a copyhold will pass by a will not attest accord to the statute of  fraud as a copyhold surrender to the use of a will will do for that equity  ought to follow the law and make it at least as easy to convey a trust as a  legal interest and decree accord Barnard Chan Rep and atk