case portman against Seymour in chancery easter term Geo a settle his freehold  estate upon b and the heir of his body with remainder over and surrender his  copyhold hold of the manor of Taunton to c upon condition that he surrender to  d and his heir subject however to a s will c accord surrender to d and a by  will recite the surrender desire d to contrive if possible that the copyhold  may be continue to the owner of the estate at orchard d surrender this  copyhold to the use of his will and by the custom of the manor a surrender  after seven year be void and the estate go to the widow and outlive the seven  year and die have first make his will and devise the copyhold to b in tail  with remainder over as aforesaid and forasmuch as d be only a trustee equity  will supply the defect but there be no proof that it be possible by the rule  of the manor to settle this copyhold in tail as the freehold the cause be put  off until further proof sir William Portman be seize of a freehold estate at  orchard in somersetshire settle it upon Mr Portman the plaintiff and the heir  male of his body with diverse remainder over and be also seize of a copyhold  estate in fee hold of the manor of tauntondean in the same county surrender  they to one Mr cross upon condition that be surrender to one Mr Henry Portman  and his heir subject however in his hand to the will of sir William cross  accord surrender be make into the hand of Mr Henry Portman and subsequent to  the settlement of the orchard estate videlicet on the that of February sir  William make his will and therein recite the purpose of the surrender to Mr  cross and to Mr Henry Portman and then he go on in these word and I desire of  my cousin the say Mr Henry Portman to contrive if it be possible that the say  copyhold land may be continue to the owner and owner of my estate at orchard  Mr Portman continue possess of this copyhold land which be liable to this  particular custom that a surrender of any copyhold land to the use of a will  be only good for seven year and if the devisor live more than seven year after  such surrender it be as no surrender and in such case the widow be to have the  estate as full as a heir at law Mr Henry Portman surrender this copyhold  estate to the use of his will in and make his will soon after but outlive the  seven year from the time of the surrender modern report by this will Mr Henry  Portman devise this estate to Mr Portman the plaintiff with the same remainder  over as be limit in the settlement in regard to the orchard estate and in the  same will be devise to his wife a legacy of ten modern report er p thousand  pound in full satisfaction and discharge of dower and three of or in any manor  c whereof or wherein I be or shall be interest and in discharge of all estate  which I have grant heretofore to her for life or year whereof sir William be  heretofore seize in the same will he further give his wife his two best  huntinghorses the best pair of coachhorse her wearingapparel her gold watch  and a great pearl necklace which she usual wear and the present bill be bring  by the plaintiff Mr Portman who be entitle to the orchard estate under the  settlement against several person and especial the widow of Mr Henry Portman  who claim as customary heir of her husband to have a account of the rend and  profit of the customary estate and to have they surrender accord to the custom  of the manor of tauntondean and to go accord to the direction of the will of  sir William Portman Mr brown and Mr Floyer argue for the plaintiff Mr Portman  that this copyhold estate be a trust in Mr Henry Portman and that if he have  not execute the trust the land shall be Chargeable into whosoever hand it come  that indeed in the present case Mr Henry Portman have execute the trust  defective for the surrender as the case be circumstance be no surrender yet  the court will supply such a defective execution of a trust or if it will not  that the copyhold shall still be subject to the trust in the hand of the widow  mrs town though she claim as a customary heir for though this be not the case  of a heir at commonlaw but by custom yet that will make no difference for  whether it be heir at commonlaw or custom yet they both make title from the  same fountain their respective ancestor and where a person succeed to a estate  whether as a commonlaw heir or by custom as a purchaser under a conveyance yet  the land shall fall into all their hand load with the trust in case of  gavelkind land the customary heir have be hold to be liable to the warranty of  his ancestor but it be here strong for it be in the case of a trust and if a  trustee do not execute his trust or execute it defective the beneficiary and  trust shall not be injure but the customary heir shall be answerable a  objection may be make to the declaration of this trust in sir William Portmans  will wherein be desire his cousin to contrive some way to settle the copyhold  estate on the owner of the orchard estate that this word desire be a  expression so much at large as to leave it entire to the discretion of Mr  Henry Portman whether to settle it or not and that the word desire do not  amount to a devise but the word desire in a will be as strong as I devise will  direct command and that it be mandatory and Obligatory in all respect and  there be no particular technical word for a devise for any word modern report  which express the intent of the testator be sufficient and there be a case in  vern where the very word desire be hold to amount to a devise and not to be  discretionary the other objection which we shall make to the widow be upon the  will of her late husband Mr town wherein be give her a legacy of ten thousand  pound in full of dower and three which she can claim of any of his estate and  in full of all estate for life or year out of sir William Portmans estate he  then go on and devise to her coachhorse hunter c and in the same will he  devise the copyhold estate in dispute to the plaintiff and the heir of his  body and the rule of law be that whoever will take advantage of one part of a  will must submit to every other part of the same will as well to those part  which be to their benefit as to those which be to their prejudice and they can  claim particular but must submit entire if so and the widow claim the ten  thousand pound legacy and the coachhorse hunter c in the other clause she must  not impeach our devise but must let it be at rest Mr attorneygeneral for the  defendant argue that as to the latter objection upon Mr Henry Portmans will  the legacy of ten thousand pound be give only in restraint of dower and three  which be a particular right and can restrain the present right which the widow  set up as customary heir that the other clause be only a devise of  paraphernalia give her no more than what be her own before and so be void that  the orchard estate be settle to Mr Portman the plaintiff and the heir of his  body with remainder over and the copyhold estate be desire by sir William  Portman if possible to be settle in the same manner it be incumbent on the  plaintiff to have prove that copyhold in the manor of tauntondean be modern  report er p capable of be settle to the heir of a man body with remainder over  for if they can the estate will be discharge of the trust which be all  impossible one and will descend accord to the custom to the widow the  defendant Hardwicke Lord chancellor if this customary estate be capable of be  limit in the manner as sir William Portman have settle his estate at orchard  then the clause in his will declare that he have make a surrender for the use  of it and that he have direct the surrendees to contrive it if possible that  his copyhold estate may go to the owner and owner of his estate at orchard  accord to his settlement will make it very plain that it be a trust in the  hand of Mr Henry Portman and accord to the case in vern Alcock v sparhawk the  word desire be equal to devise because it express the intention of the  testator and the purpose of every will be to do no more but if the copyhold  estate be not capable of limitation of that kind and sir William Portman can  not have surrender the estate to the same use as the orchard estate be settle  then the plaintiff can be entitle modern report but take this estate to be a  trust in Mr Henry Portmans hand and the question whether his customary heir be  to have the land subject to it as to that I be of opinion that every customary  heir if he take mere as heir be equal in the power of his ancestor with any  heir at commonlaw but there have be case in abundance relate to copyhold and  borough English where a ancestor have surrender and give his land in such  manner as will bind a heir at commonlaw it have be hold that it will also bind  his customary heir and if Mr Henry Portman take this as a trust estate its  descend to his heir by custom will not impede the trust but if Mr Henry  Portman have have the legal estate subject to no trust and have make a  surrender which be defective or void as in the present case by his not die  within seven year after it there his customary heir shall not be bind but  shall take the estate because of the imperfection of the surrender just as if  a man devise copyhold land without surrender to a stranger as the devise be  not good the heir shall take they against the devisee but if the same devisor  take only a trust in the land his heir shall be liable to the trust although  the legal estate come to he suppose land to be surrender upon trust to a  person to do a particular thing and be neglect to do it or do it imperfect and  the legal estate fall to his customary heir it shall be liable to the trust  but all this depend upon this point whether this copyhold land be capable of  be settle in the same manner as the orchard estate therefore this cause must  go off until further proof