case car versus ellison April see Torre v brown h l c S c cite ante vol c give  all his message land tenement and hereditament in saint Helen Auckland and  elsewhere in the county of Durham and all other his real estate to trustee c  for year for particular purpose and after the determination of the term give  all the premise to his wife for her life without impeachment of waste all the  estate come original from the wife the testator can not mean to sever the  copyhold from the freehold therefore by the general word pi the will the  copyhold land pass William car by will date in July say I order all my debt to  be pay and Payable out of all my real estate as hereafter mention and I hereby  charge the same with payment thereof and my mind and will be that all my  personal estate shall be free and discharge from my debt and I give and devise  all my message land tenement and hereditament in saint Helen Auckland and  elsewhere in the county of Durham and all other my real estate unto sir atkins  Ralph Milbank and hedworth and to their executor and administrator for and  during the term of five hundred year upon trust hereafter mention and after  the determination of the say term I give all the premise unto my dear belove  wife for and during her natural life without impeachment of waste Mr solicitor  general for the widow of Mr car the plaintiff in the cause submit that a  devise of a copyhold estate without a surrender where the devisor bad only the  equitable interest and the legal in trustee be sufficient to pass the copyhold  and also that the testator in this case can devise the copyhold to whosoever  he please without any surrender and that there be such a consideration as this  court think a valuable one and sufficient to supply the want of the surrender  to show that the copyhold pass by these general word he cite vern Greenhill  versus Greenhill he state that under the settlement on the marriage of the  testator with the plaintiff the use of the real estate pass by the fine that  be afterward levy that there be likewise a surrender of the copyhold estate in  five different surrender but all annex together and that there be no  declaration of the use in the court roll but endorse only on the back of the  last and that they be surrender and sign by the steward of the court without  any of the party name to it a doubt he say have be make whether this be  regular Lord chancellor hold this be sufficient and that there be no occasion  to specify the use in the court roll but the surrender general will do without  be more explicit than by this endorsement of the use by the steward Mr brown  counsel of the same side say that the word be so comprehensive they must take  in copyhold or else after he have use such word as will undoubted have pass  his freehold estate why shall he superadd all other my real estate but with a  intention to pass the copyhold likewise he state the case more at large of  Greenhill versus Greenhill out of Prec in Eq Lord chancellor ask whether Mr  car have any other real estate beside what he have in Durham and Newcastle and  it be admit he have in other county atkins Mr Craster of the same side cite  Andrews and Waller hill Geo vide viner Abr title copyhold p S Mr attorney  general for the defendant the heir at law cite the case of Harwood atkins er p  versus child Aug and Elwell v Polhill hear before Lord Hardwicke June the word  there be all other his land tenement and hereditament in somersetshire and yet  it be hold that these word will not pass the copyhold and upon a reference to  a master to see whether the testator have land in any other county he report  the testator have no other estate and the court notwithstanding determine that  the copyhold land will not pass Mr Owen of the same side argue that the  testator by give each tenant for life a estate without impeachment of waste  and a power of lease for year show he mean only freehold for he can not give  the devisees such privilege over copyhold estate for it will be a detriment to  the lord of the manor of who the copyhold land be hold and insist that there  be no instance of devise a copyhold upon a term of year for pay debt by  mortgage or otherwise for a copyhold upon a mortgage must be surrender which  be the only method of convey a copyhold and therefore this likewise be a  circumstance to show he mean only freehold land to which these power and  privilege can only be annex Lord chancellor I be of opinion the trust of these  copyhold estate will pass without a surrender to the use of the will there  have be several case so determine but particular Tuffnal versus page easter  term atk SC king v king p W Macei v Shurmer atk Allen v Poulton Ves Macnamara  v Jones bro Charles Rep because the surrender must be by the person who have  the legal estate and when there be no legal estate in the party who have the  beneficial interest it may pass by a will as well as any other land this be  out of the case the next question be whether here be a sufficient indication  of the testator intention that the trustee shall have the copyhold as well as  the real estate as to this the word of the will and the nature of the case  must determine there be no dispute but the word be large enough to pass the  copyhold land there can possible be large to pass any real interest a testator  have in land than all other my real estate vide smith v baker atk atkins the  word then be large enough the next question be whether it appear to be the  intention of the testator they shall pass the real estate be original that  inheritance of the wife consist of part freehold and part copyhold upon the  marriage the freehold land be by settlement convey and by the fine the husband  and wife to sir Ralph Milbank and hedworth in trust for the husband and wife  during their joint life and the survivor with remainder to the heir of their  two body remainder in fee to the husband and his heir Mr car and his wife  likewise make a surrender of the copyhold land to the same trustee and for the  same purpose with the freehold land after this the husband make his will what  appear to be the intention why as the wife have be so generous as to give the  remainder in fee to he he be Willing to return the compliment to her but sub  modus and qualify with a charge for payment of debt and so limit that all her  child by any future husband may take in strict settlement it can be presume  that the testator intend to sever the copyhold which come at the same time  with the freehold and therefore this be a strong circumstance to indicate the  testator intention and to construe it otherwise will be to dismember the  estate which can never be mean when he devise they to the same trustee as be  under the settlement the objection deserve to be consider that give each  tenant for life a estate without impeachment of waste be not applicable to  copyhold but in such a comprehensive will as this be it be not necessary to  lie such stress upon the word without impeachment of waste and they may be  look upon as surplusage with regard to the copyhold estate for in settlement  of great family estate it frequent happen that real and copyhold estate lie  blend and intermingle together atkins er p the lord be not bind indeed to  admit a tenant accord to the express term of the trust where contrary to the  form of a legal conveyance but the security of the lord be admit a atkins  trustee to the inheritance by which the fine heriots escheat c be full secure  to he case have be mention on both side but it be very difficult to make case  tally exact because circumstance be material in these case it have be  determine in this court that where there be a charge for payment of debt on  copyhold and no surrender yet the court will supply it see note to Cox p W to  which note add the case of Lindopp v Eboral bro Charles Rep and Kentish v  Kentish ibidem the case of atwell versus Polhill be only a copyhold for three  life and not of inheritance which be the reason of the decree there the  material circumstance here be the intention of the testator to restore the  estate to the wife from who they original come and therefore he can not mean  to dismember and sever the copyhold estate from the freehold his lordship  decree the copyhold land pass to the trustee by the general word of the will