case george on demise of Thornbury against jew feme covert can at law make  will of copyhold land surrender by her before marriage to the use of her will  nor can she declare the use of the surrender see do they Hodsden v staple t r  tailor v phillipps Ves c b Michaelmas g will Ch I birch I case make at  Worcester summer assize will chief justice deliver the opinion of the court  whether Thornbury widow be seize in fee of the premise in question be copyhold  land lie in Worcestershire on the that August surrender the same to the use of  her last will that November upon and previous to her intermarriage with her  husband John Paddy smith she enter into article recite the say surrender and  that the intend husband agree that she shall have power to settle her estate  or to devise the same during coverture without his contradiction that June she  and her husband mortgage the premise to Thomas shepherd for year but no fine  be levy or surrender make but the lord licence to alien without incur  forfeiture that August she make her will recite her power to make such will  under the article and devise file premise to her then husband and son Paddy  smith and to the survivor of they and to their heir and assign for ever wife  die her son of her first marriage and heir at law bring a ejectment against  defendant who claim under the devisees Q whether there be any title in the  lessor of the plaintiff ambler and I can help say that I have the strong  inclination in favour of the defendant but as this be in a court of law we  must determine accord to the strict rule of law but court of equity can go far  than we can in determine this case I shall lie down these three proposition  saint it be a rule a feme covert can make a will of land d the surrender by  her when sole become void or at least be suspend by the marriage d the land  which be surrender to the lord be not vest in he as a trustee but he be only a  instrument or conduitpipe by or through who the land must be convey accord to  the surrender as to the saint it be contrary to the that and that h ch that a  feme covert shall make a will for by that statute all will make by feme covert  shall not be good in law but it be argue that the consent of the husband by  the article give her the power of devise though by law she can not otherwise  do it and many case be cite to endeavour to prove this doctrine but they be  all case of will of personal estate make by virtue of such a agreement and  there can be no doubt but the husband may give her a power to dispose of her  personal estate because by marriage he have the sole property in and power  over it but it be otherwise of land of inheritance belong to the wife and he  can give her such a power to make a will in prejudice of her heir at law  therefore this agreement signify nothing as to the d question this surrender  be thereby fluctuate and ambulatory till some further legal act be do to  complete it and be like the case of a presentation which be revocable and  fluctuate till induction therefore the marriage either make it absolute void  or at least suspend ambler it in either of which case the operation of it be  prevent and of consequence it can vest no interest in the defendant as to the  d question the lord can never be consider as a trustee in who the land be to  vest for the benefit of the devisee for it appear plain by Poph   and cro  Elizabeth that whenever the feesimple c of a copyhold be by surrender limit to  the use of a will the feesimple remain in the copyholder and be not vest in  the lord therefore he can be consider as a trustee have no estate vest in he  for that purpose as to the mortgage it must be bad at all event for there  ought to have be either a fine or surrender so as the feme may be private  examine for a custom to bar without surrender or private examination will be  bad ambler er p therefore on the whole we be all of opinion for the lessor of  the plaintiff that he have a good title for it be certain whether smith be a  feme covert can not make a will and it be as certain she can not declare the  use of the surrender because be void or suspend by the marriage it can not  operate postea must be deliver to the plaintiff the case of wright v Cadogan  and Rippon v Dawding ante and settle that the husband and wife may by article  previous to marriage enable the wife to dispose of her real estate by deed or  will during coverture a court of equity in case of such disposition consider  the heir as a trustee and will oblige he to convey to the party in favour of  who the wife appoint see pale yellow ten Burgoin v spurlin cro car roe v  loveless barn Ald and therefore he may surrender again to a stranger without a  formal revocation of the surrender to his will fitch v Hockley cro Elizabeth  Thrustout v Cunningham I black so if he die without a will or make a will  devise only a particular interest the whole in one case and the part  undisposed of in the other will descend to his customary heir Bullen v grant  cro Elizabeth Leon pale yellow ten and so also if a copyholder surrender to  the use of his will and devise to his customary heir the heir two be in by  descent stram clarke v smith Lutw do v Timmins barn Ald et vide Watk Dese and  see I black Rep so if a copyholder seize in fee surrender to the use of his  will and afterward surrender to particular use with the ultimate to his own  right heir he shall be in of his old estate and may devise the reversion  without any fresh surrender or admission fearne contingent remainder Thrustout  and Gower v Cunningham just black Rep but if copyholder for life surrender to  the use of another and the lord grant to that other he be in by the lord and  not by the surrender king v lord cro car Mod see kirk case Freem it appear  from sergeant hill ms book p where the argument of counsel be also give at  length that the lessor of the plaintiff be the son and heir by her former  husband John Thornbury and as such customary heir to her copyhold estate if  not dispose of by the will the defendant Jew claim under a lease from Paddy  smith and Stephen smith the devisees by the will there be a verdict subject to  the opinion of the court for the plaintiff and the general question make upon  the case be whether the deed of mortgage of or the will of be a sufficient  appointment of the use of the surrender in August or whether the premise be  descend to the lessor of the plaintiff as heir to the say Ann smith the court  be clear of opinion that the estate be in the lessor of the plaintiff the heir  at law saint because the lease by way of mortgage can not be appointment of  the use of the surrender which be by that to be declare by her last will ndly  because this surrender make when the surrender can make a will proper so call  can operate to make good the use declare by her when she can not make a will  proper so call and therefore there shall have be a fresh surrender after  marriage to warrant the will be operate as a appointment of use in which case  there must be a custom for the steward to examine the wife secret as the judge  do in case of a fine else her devise must be absolute void dly because till  the admittance the estate be not in the lord but in the surrender ambler er p