atkins case richard Macei and other v nicholas SHURMER December the that n S  by will devise to his wife and her heir all his freehold and copyhold land be  well assure she will at her decease dispose of the land among all or such of  his child as by their conduct shall deserve it the wife devise all the  freehold and copyhold land except the copyhold in Hampton to her daughter and  her heir and that copyhold to the heir at law of the testator and his heir  Nicholas Shurmer by his will devise to his wife her heir and assign several  land therein mention and all his copyhold land in Surrey and his freehold and  copyhold in Middlesex to his wife mary her heir and assign for ever be well  assure she will at her decease dispose of the land among all or such of his  child as she in her discretion shall think most proper and as they by their  conduct shall deserve mary Shurmer by her will give to her daughter in the  follow word I hereby give and devise to my dear daughter Martha Shurmer all my  freehold and copyhold message land and hereditament whatsoever except the  copyhold in Hampton aforesaid to hold to my daughter her heir and assign for  ever subject nevertheless to the payment of the just debt that be still due  and owe from my late husband and also to the payment of my own just debt and I  give to my son Nicholas Shurmer and to his heir and assign for ever all that  copyhold message with the appurtenance in the manor of Hampton and I give to  my daughter Martha Shurmer all my good and chattel whatsoever and do make her  my sole executrix atkins er p at the time of her execute the will the  testatrix give direction that the surrender to the use of the will shall be  draw up by two copyholder of the respective manor but no such tenant be  present the same though write be not perfect she afterward go to the steward  but he be not in town for the surrender to be present and she soon afterward  die sudden the defendant the heir at law insist the copyhold estate belong to  he for want of a surrender the bill be bring by the creditor of Nicholas  Shurmer and mary Shurmer the freehold and copyhold estate be purchase with the  money lend by the creditor of the former Reg lib b fol therefore the end of  the bill be to restrain defendant from be admit tenant to the copyhold and  that the freehold and copyhold land or a sufficient part may be sell and the  money pay to the plaintiff the creditor and the remainder to Martha the only  child unprovide for Lord chancellor it be clear that under the word such of  his child the wife of the testator though a trustee in some sort have a full  power to devise the whole to the daughter see swift v Gregson durn and east if  she have think fit atkins as to the want of a surrender the wife be no more  than a trustee the trust only of a copyhold not necessary to be surrender see  car v ellison post vol but if it be necessary I shall be incline to supply it  I think it may have be doubIful whether the mother can have subject the estate  for payment of her own or even her husband debt but the devisee of the wife  submit to that and desire it may be sell for payment of debt the court will  not interpose if the heir have be total unprovide for I shall have doubt  whether a surrender can be supply but it appear that one copyhold descend to  he and another have be devise under the mother will and no proof of the value  I can refuse to supply the surrender I do therefore declare that the will of  Nicholas Shurmer and mary Shurmer be well prove and ought to be establish and  do decree that a sufficient part of the freehold and copyhold devise to  plaintiff Martha be sell and the money apply in satisfaction of the creditor  of Nicholas and mary Shurmer and the surplus to be pay to mary Shurmer and in  case part of the copyhold remain unsold direct that the defendant do surrender  the same to Martha atkins see prefatory note