atkins case room versus room march in Lincoln inn hall before the master of  the roll sit for the chancellor one question be whether the want of a  surrender of a copyhold estate shall be supply in favour of a wife or child  the court doubtful whether it can against a heir disinherit of the real estate  S r direct his executor to place out at interest pound in their own name and  that the interest shall be apply for the maintenance pound of his grandson and  that they may pay all or any part of the pound and interest in bind he  apprentice and so much as shall not have be so apply he direct shall be  transfer to his grandson at the testator himself put his grandson apprentice  to a haberdasher and pay pound with he to his master and a year afterward make  a codicil to his will by which he give some legacy the question be whether the  pound for apprentice he be a ademption pro tanto the court be of opinion as  the pound be not give for this use alone but for other purpose and the codicil  make after this sum have be so lie out it be a confirmation of the legacy and  amount to a republication of the will and decree the whole pound to the  grandson Stephen room by will date the that of January give to the plaintiff  William room and his heir all his message land c in Islington which he  purchase of Thomas Anstrope then direct his executor to place out at interest  or government security one thousand pound in their own name and direct that  the interest or dividend thereof or of such part thereof as they shall think  necessary shall be apply for the maintenance and education of his grandson the  defendant Stephen room son of his late son James room decease and that his  executor may pay or apply all or any part of the say thousand pound and the  interest or dividend thereof in the bind his say grandson apprentice or set he  up in the world as they in their discretion shall think fit and that so much  thereof as shall not have be pay or apply as aforesaid he will and direct  shall be by they pay and transfer unto his say grandson at his age of  twentyone year and in case he shall die under that age that the same shall be  equal divide among the plaintiff William and Thomas room and and Barret the  child of the testator and make these three person executor the estate in  Islington be a copyhold estate but no surrender be make to the use of the will  on the d of November the testator make a codicil to his will whereby he give  legacy to three of his servant which he have omit in his will but after make  his will and before the codicil namely on the that of August the testator put  the defendant apprentice to one Stanton of London haberdasher and pay one  hundred and twenty six pound with he to his master the bill be bring that the  want of surrender may be supply and that direction may be give b the court  concern place out on security such part of the pound give atkins for the  defendant benefit as the court shall be of opinion he be entitle to the  defendant Stephen room the grandson insist that he be a heir at law total  disinherit and therefore ought not to be oblige to surrender the copyhold  estate to the plaintiff and that the court will not supply the want of it and  that as the testator live above two year after pave the hundred and twenty six  pound for put he apprentice and make no alteration with respect to the  thousand pound though he make a codicil upward of a year after pave the  hundred and twentysix pound it be manifest the intention of the grandfather  that the same shall not be deduct out of the thousand pound but the whole  apply to the defendant use and be a infant insist his right to the real estate  ought to be save the master of the roll make two question first as to supply  the want of a surrender of the copyhold to the use of testator will second  whether the payment of one hundred and twentysix pound by the testator in his  lifetime be to be consider as a ademption pro tanto of the thousand pound  legacy to the defendant with regard to the first of these question the  plaintiff counsel insist that though there be no surrender to the use of the  will yet if the land devise be for payment atkins er p of debt or as a  provision for a wife or child this court will supply the want of a surrender  see smith v baker ante atk Hawkins v leigh ante atk to be sure the general  rule be so though I do not remember it have be extend so far as a wife Qure  for a Eq can Abr title copyhold it appear to have be so extend and in Hawkins  v leigh that of November before Lord Hardwicke see t atk vol it have be say by  the defendant counsel that it ought not to be supply in this case against he  because whenever a heir at law be disinherit the rule be otherwise and be  certain a true rule but then it will be a question whether upon the  circumstance of this case it ought to be supply Mr attorneygeneral say that  though a heir be bar of all the land which he will have take by descent yet he  shall not be say to be total disinherit provide he have a provision from his  ancestor in any other way so hold in chapman v Gibson bro Charles Rep pike v  white bro Charles Rep atkins but I do not remember any such distinction and  always think the rule mean a heir at law disinherit of real estate Qure for  the case of Hawkins v leigh be determine on this distinction by Lord  chancellor however this point must be reserve for I can make any bind decree  now as the heir at law be a infant and therefore shall give liberty to apply  to the court in respect to the copyhold estate when he come of age and in the  mean time the plaintiff William room to be quiet in the possession of the say  copyhold estate with regard to the second question the doubt be whether I can  consistent with the intention of the testator decree the whole thousand pound  to the defendant a grandfather to be sure be a very near relation but strict  speak do not stand in loco parent a father be indeed oblige to maintain his  child but a grandfather be not oblige to maintain a grandchild a father can  appoint a testamentary guardian of his child but a grandfather can the  plaintiff counsel insist that as the thousand pound be give to bind the  defendant out apprentice that the testator have afterward do this himself it  be a partial ademption and ought to be take out of the portion and they have  compare this to the case of a person give a a thousand pound by will to build  he a house if the testator in his lifetime lie out that sum upon a house for a  it be a satisfaction and a shall not have the thousand pound under the will  and that as the defendant in the present case have have the thing intend he  shall not have the legacy but I think the present case differ from that which  have be cite because the thousand pound be not give for the put he out  apprentice only but for other purpose maintenance c neither be the executor  oblige to expend such sum as shall be necessary for apprentice he out of the  thousand pound but they may do it out of the interest and produce of it the  defendant beside may have choose some other business or perhaps none at all  therefore those case wherein ademption have be allow must be confine to such  instance where a testator give a legacy for one particular purpose only and  after that apply a sum of money to the same purpose vide Bellasis v Uthwatt  ante atk it appear too manifest by one circumstance the testator do not intend  himself there shall be any ademption of the thousand pound and that be the  codicil make above a year after the hundred and twentysix pound have be lie  out for atkins apprentice the defendant which be a confirmation of the legacy  and amount to a republication of the will if the testator have any intention  of deduct the hundred and twentysix pound out of the thousand pound he have a  fair opportunity of do it when he be add a codicil and as he have not do it it  will be the great equity to decree the whole thousand pound to the defendant  the grandson of the testator and his honour decree it accord Reg lib b fol  atkins er p