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To these arguments it was answered, on the part of the original appellants, that the testator was really and truly the proprietor of these lands; but he probably did not know that the circumstance of the legal estate being outstanding in trustees, gave him an equitable power of disposing of them by will, without previously procuring any surrender of them. It is a point of law, of which many people, and even some lawyers, may be supposed to be ignorant. His father John seemed to have been in the same ignorance; and he, to invest the property of these copyholds in his eldest son Sir William, devised that his youngest son Thomas should surrender them to his eldest son Sir William in fee; and as a remuneration for the compliance with that di-[358]-rection, he gave him the Ruperra estate, in Glamorganshire. Sir William in his will pretty nearly followed the example which his father had set him; and devised, that when his youngest son Edward should come of age, he should pass and surrender all his right, title, and interest in the customary and copyhold estates in Monmouthshire, to the use of his eldest son William, his heirs and assigns for ever. He did not direct, that Edward should surrender them to William for life, and then to his first and other sons successively in tail male, with remainder to him, Edward for life, remainder to his first and other sons successively in tail male, with remainder to all and every the afterborn sons of the testator; but his direction was, that Edward should pass and surrender his right and interest in these copyhold premises, to William and his heirs for ever, for an absolute estate of inheritance, beyond which there could be no ulterior remainder. Here was therefore a plain indication from the testator, by express words, that his son William should have these lands in full propriety, and as absolute owner of them, and this would amount to a devise, and transmit the fee and inheritance to William and as Edward died in the lifetime of William, under age, and William after attaining his age never made any will, the whole estate and interest in these premises must necessarily fall by descent to his sister, who was his heir at law.

But suppose that by Edward's dying before he attained 21, and before his becoming capable to make any formal surrender of these premises to his brother, even in conjunction with the trustees, the testator's direction to surrender was incapable of taking any effect at all; yet that could give no kind of right in these lands to Thomas Morgan or his sons, who were not so much as once spoken of in the will, with regard to them. If the will was not operative enough to give these premises to William the eldest son, it must leave them to descend according to the due course of law, and the testator must be considered as being dead intestate, with respect to these copyholds; and the custom being lex loci, William would have one half of the gavelkind land in fee, and Edward would have all the Borough-English land to himself in fee, and also the other moiety of the gavelkind land; for the equitable estate, in point of descent, was governable by the custom as much as the legal, equitas sequitur legem. This being so, when Edward died, his equitable interest in all his Borough-English land, and also in his moiety of the gavelkind land, must necessarily devolve upon his brother William, as his heir, he being his only brother; and if there had been more, the descent among collaterals of Borough-English land is not to the youngest, but to the heir at common law; and when William also died without making any will, his heir was necessarily Mrs. Jones, his sister. Thus there was not the least pretence for introducing Mr. Thomas Morgan the uncle, or any of his sons, into any present or future estate or interest in these copyholds, but they clearly belong to Mrs. Jones.

[359] After hearing counsel on these appeals, the following question was put to the Judges, viz. "Whether Thomas Morgan, the brother of the testator, and Thomas Morgan the younger, and Charles Morgan, or any or either of them, took any and what estate in the lands in the counties of Monmouth and Glamorgan, by the residuary clause in the will?" Whereupon, the Lord Chief Justice of the Common Pleas delivered the unanimous opinion of the Judges,

That Thomas Morgan the brother took an estate for life, in the estates in Monmouthshire and Glamorganshire, with remainder to trustees to preserve contingent remainders, with a remainder to Thomas Morgan the younger for his life, with remainder to trustees to preserve contingent remainders, with remainder to his first and every other son in tail male; with remainder to Charles Morgan, as being the second son of Thomas Morgan the brother, in tail male.

It was therefore ordered and adjudged, that the original appeal should be dismissed; and so much of the decree as was therein complained of, affirmed. And it was further ordered and adjudged, that the cross appeal should also