Charles davis appellant Michael Howard et ux respondent d April Mews dig  twelve I e covenant to lie out pound in the purchase of land to the use of  himself for life with remainder to his first and other son in tail male he  purchase land in fee of that value and permit they to descend to his old son  hold that the land so descend be a satisfaction of the covenant vide wilcocks  v wilcocks vern S p so where a covenant to settle land of a certain value and  purchase land of less value which he allow to descend such purchase be allow  to be in part satisfaction of his covenant Lechmere v Carlisle Lord p wms as  to performance or satisfaction of covenant by a devolution of interest more  beneficial to the covenantee see Blandy v Widmore p wms lee v daranda atk  kirkman v kirkman bro c r as to satisfaction of covenant by devise see post  title will bro p c by indenture date the that of April previous to the  marriage of the appellant father John davis esquire with the appellant mother  the honourable Ann Caulfield make between brown Hercules davis esquire and the  honourable lettuce davis his wife the appellant grandfather and grandmother of  the first part William Lord viscount Charlemont Henry davis and Stephen Ludlow  esquire of the second part Richard Lord bishop of meath William Ponsonby and  saint ledger Gilbert esquire of the three part and the say John davis old son  and heir apparent of the say Hercules davis and the say Ann Caulfield old  daughter of the say Lord viscount Charlemont of the four part recite a  marriage then intend and soon after have between the say John davis and Ann  Caulfield and that sir Edmund Stafford by indenture date the that of December  brown er p demise unto John davis father of the say Hercules davis certain  land therein particular mention situate in the county of Antrim far year from  Michaelmas then last and that sir Henry oneil by deed date the that of  September in the that year of the reign of king Charles I demise to the say  John davis father of the say Hercules other land therein mention in the say  county of Antrim for year from the feast of all saint then next ensue and that  Randall late marquis of Antrim Ann lady marchioness of Antrim and dame Martha  oneil by indenture date the that of December demise other land therein mention  in the county of Antrim to the say Hercules davis for year from the that of  June and that Arthur earl of donegall by indenture date the saint of June  grant unto the say Hercules davis the appropriate tithe belong to the late  dissolve abbey of Dessart alias Kells for the term of year from the saint of  may then last the say Hercules davis in consideration of the say intend  marriage and of pound to he pay or secure by Lord Charlemont be the say Ann  portion and for other consideration grant and convey all the say leasehold  land and several other land of inheritance which he be seize of in his demesne  as a fee videlicet the land and town of Lisafullan Corbally Corragh Donnagby  with the corn mill and tuck mill thereon and drean situates in the say county  of Antrim unto the say Lord Charlemont Henry davis and Stephen Ludlow to hold  the say land of inheritance to they and their heir to the use of the say  Hercules davis and his heir until the marriage shall take effect and afterward  to the use of the say John davis for his life remainder to trustee to preserve  contingent remainder and after the death of the say John davis to the use of  the say Ann in part of her jointure which together with what further provision  be then make for her use be to be in lieu of dower with remainder to the first  and every other son of the say John and Ann lawful beget successive in tail  male with several remainder over and to hold the say leasehold land to Lord  Charlemont davis and Ludlow their executor etcetera during the residue of the  respective term then to come upon trust to permit the profit to be receive by  the say John during his life and after his death by the say Ann during so many  year of the say term as she shall live after the death of the say John as to  so much of the say rend as will brown together with the profit of the say land  of inheritance make up her jointure pound yearly acquit from the jointure of  the say lettuce and all other encumbrance and the surplus profit during the  say Ann life if any to go to the person to who the say land of inheritance be  limit and after the death of the say John and Ann to permit the old son of the  marriage to receive the profit of the say land and after his decease to permit  the several other person to who the say land of inheritance be limit to  receive the rend of the say leasehold land during the residue of the say term  and after further recite a mortgage from Lord santry to Thomas Whitchet and  Stephen Ludlow for pound in trust for the say Hercules davis as to pound S d  part thereof as also a bind from the Lord viscount Massareen by the name of  clotworthy Skeffington esquire with his father late Lord viscount Massareen to  the say Hercules davis in the penalty of pound condition for payment of pound  and also a mortgage from Henry earl of Drogheda to the say Hercules davis for  pound the portion of the say lettuce and likewise the right of the say  Hercules davis to a sum of pound secure by a mortgage from Edward Harrison to  Henry davis esquire brother of the say Hercules pound whereof be declare by  the say Henry to be the proper money of the say Hercules and to be in trust  for he the say Hercules do by the say indenture assign to the say bishop of  meath William Ponsonby and saint ledger Gilbert their executor etcetera the  say mortgage and security and thereby empower they to recover and receive the  same upon trust to pay or permit the say Hercules his executor or  administrator to receive to his or their own use pound S d with the interest  thereof part of the mortgage on Lord Santrys estate or of the say Hercules  share thereof be pound S d and also to receive to his own use during his life  the yearly interest of the pound due from Edward Harrison and as to the  residue of the say mortgage on Lord Santrys estate and as to the rest of the  aforesaid debt and mortgage due by the earl of Drogheda and Lord Massareen  amount in all to pound upon trust that the trustee shall during the life of  Hercules out of the rend and interest of the say mortgage and debt brown er p  pay to John davis his son so much as with the clear rend of the freehold and  leasehold land limit as aforesaid for the present maintenance of the say John  and Ann shall in all make up pound a year above all deduction and after the  death of the say John in case the say Ann survive he shall thereout yearly  during the life of the say Hercules pay to the say Ann so much as with the  clear rend of the say land limit for her jointure shall in all make up pound a  year above deduction and the say Hercules to receive the residue of the  interest of the say pound during his life and after his death and subject to  the direction for complete the jointure of the say Ann davis and also of the  say lettuce davis the say trustee be direct to pay the residue of the rend  profit and interest of the say pound to such person or person as the brown say  land of inheritance shall come to by virtue of the say limitation and it be  declare that the say pound be so vest in the trustee upon this further trust  that they shall at any time by the direction of the say Hercules during his  life and after his death by the direction of the say John lie out the say  pound in the purchase of land of inheritance to enure to the same use as the  interest of the money so lie out be thereby limit in this settlement there be  a power reserve to John davis to charge the freehold estate convey to the  trustee and the land which shall be purchase with the pound or any part  thereof with any sum or sum of money not exceed pound for a provision for the  young child of the marriage and after several particular covenant not material  to the present question the settlement conclude with the follow proviso  provide always that if the say sum of pound shall remain undisposed of in a  purchase of land and hereditament at the death of the say Hercules and John  davis his son that then the say pound or such part thereof as shall remain so  undisposed of shall be pay unto such person or person for such use unto who  the say land of inheritance herein abovementioned be by the say settlement  limit so far forth as the same can be by the rule of law or equity subject  nevertheless to the jointure payment and portion herein above limit as  aforesaid Hercules davis receive pound part of the pound but neglect to pay it  to the trustee or to invest it in the purchase of land accord to the intention  of the settlement and after his death John davis the appellant father file a  bill in the court of chancery in Ireland against Hercules davis the young  second son and executor of Hercules the father in order to have the trust  money replace and lie out in land accord to the intention of the settlement of  the that of April this dispute be adjust in a amicable manner by indenture  tripartite date the that of September make between Hercules davis the young as  executor of his father of the first part the say William Ponsonby and saint  ledger Gilbert of the second part and the say John davis of the three part  whereby after recite the settlement of and the suit commence by John against  Hercules and that Hercules in his answer to the bill have confess that his  testator have receive all the money due upon the security so vest in the say  trustee save the mortgage from the earl of Drogheda for pound Hercules the  executor do assign and make over to the say William Ponsonby and saint ledger  Gilbert the survive trustee all his right and interest to the pound so secure  by the say mortgage from Lord Drogheda and also pound secure by a mortgage  make by sir Richard Buckley to Hercules davis the elder in August to the end  that the say principal sum of pound and pound and the interest then due  thereon and the sum of pound S d then pay by Hercules the brown executor may  be apply to the several trust in the settlement of and John davis thereby  covenant to indemnify and save harmless the say Hercules davis and his say  testator estate from all claim or demand for or on account of the say pound  and every part thereof the mortgage thus assign be of a old date and carry a  high interest John davis do not press the call in of the money or the take of  any step towards lie out the same in the purchase of land accord to the  direction and intention of the settlement make on his marriage but in the earl  of Drogheda obtain a decree in the court of chancery in Ireland against davis  and the trustee for the redemption of the pound mortgage and that upon payment  of that sum to saint ledger Gilbert the survive trustee subject to the use of  the say settlement Gilbert shall assign the mortgage premise to the earl of  Drogheda or such person as he shall direct brown er p Mr Gilbert accord assign  Lord Droghedas mortgage pursuant to the decree and permit John davis to  receive the mortgage money which he be to lie out in other security and accord  about the that of June John davis lend pound part of the pound upon a mortgage  of the estate of Thomas fortescue esquire take in the name of Mr Gilbert and  about the that of July follow he lend the remain pound to Nathaniel clement  esquire upon the security of two mortgage assign by he to Mr Gilbert and of a  bind for that sum execute by clement as a collateral security John davis  afterward find a favourable opportunity of lie out pound on a good security at  six per cent call in the money due on Mr clements mortgage and Mr clement with  the approbation of the heir at law of Mr Gilbert the survive trustee pay the  money to davis who lie it out immediate upon a mortgage make by James Shiell  esquire at pound per cent and those several sum of pound pound and pound part  of the pound trust money continue on the several mortgage of the estate of sir  Richard Buckley Thomas fortescue and James Shiell until John Davyss death  there be no step take to lie out the same in the purchase of land accord to  the direction of the settlement John davis in succeed to a small estate in the  town of carrickfergus of the yearly value of pound by virtue of the will of  his uncle Henry davis and about the year he become possess of some land in the  county of Dublin and Kildare under the same will by virtue of a remainder  limit to he in fee expectant upon a estate for life limit to another John  davis brother of the say testator Henry those estate be charm with two legacy  of pound and pound Payable to two brother of the say John davis and the  testator have give other legacy to a large amount particular pound to his  daughter Judith though the say John davis be several year in the actual  possession of these estate he never attempt to appropriate to brown himself  the trust money either by lie it out in a purchase of those estate for the  purpose of the trust or in any other purchase although the security for that  money be often change during his life and the trustee rely entire on the  prudence of his conduct and the sufficiency of his fortune manage the trust  money as he direct or leave the management of it to his discretion the  appellant by the death of a elder brother in become the old son of the family  and his father John davis make he a lease of the carrickfergus estate for year  at pound per and rend by way of a maintenance and to enable he to keep up the  family interest in that town which they have often represent in parliament in  John davis die intestate leave Ann davis his widow the appellant his old son  and heir and James davis his young son and four daughter namely Sarah his old  daughter marry to Thomas Callaghan esquire Judith marry to John Tuckey the  respondent Alice and jane davis spinster in and the term of the leasehold  interest vest in the trustee by the settlement of April draw towards a end the  lease from sir Henry ONeill determine the saint of November the lease from sir  Edmund Stafford be to determine at Michaelmas and the lease of tithe from the  earl of donegall be to determine on the saint of may and do actual determine  in the lifetime of Ann davis the widow the freehold estate in the county of  Antrim convey by that deed be but pound a year and the profit of the lease  from the marquis and marchioness of Antrim be but inconsiderable the principal  security for the jointure of Ann davis be the money vest in the trustee by  that settlement of which pound and pound charge upon the estate of sir Richard  Buckley and Thomas fortescue still stand in the name of the survive trustee  pound other part thereof which have stand in the name of the trustee when  charge on Mr clements estate be call in by John davis and lie out upon  mortgage of Mr shiells estate at pound per cent as before state by John davis  in his own name who be liable to be call upon by the trustee for that money as  also for the sum of pound receive by he from the executor of his father to  complete the pound trust money it be evident that the estate which come to  John davis from his uncle be not charge with nor any way liable to the  jointure of Ann davis the appellant upon the death of his father succeed as  his heir at law to the brown er p estate which his father hold under Henry  Davyss will in the county of Dublin and Kildare and in the town of Belfast he  take also as special occupant a villan which his father have purchase for  guinea at Hampstead near Dublin for three life renewable for ever at the rend  of pound per and on which his father have make some improvement in order to  make it a commodious habitation for his family he brown likewise succeed under  his father marriage settlement to the freehold land thereby limit to the issue  of the marriage which be about pound a year and to the remainder of the term  for year of the leasehold estate comprise in that settlement he also become  entitle to the money vest in the trustee by that settlement subject to the  jointure and payment therein mention of which the jointure to Ann davis be  then the sole subsist charge the appellant with the approbation of his mother  take out administration to his father and use his best endeavour to get in the  personal estate which be considerable although several debt be desperate he  live in great harmony with his mother during her life and as it be agreeable  to her he keep house for her and a equipage suitable to her rank in life at  the mansion house at Hampstead where she from time to time reside with her  unmarried daughter and when she choose at any time to reside in Dublin he  provide a house for her there and supply her with money from time to time as  she call for it without observe minutely whether the money she call for  together with what she agree to allow towards housekeeping and equipage exceed  or fall short of her jointure when his affair at any time call he to England  he leave order with his agent to supply her in the same manner and if through  the negligence of his agent during his absence she raise money for her use in  any other manner he regular pay it with interest when he return to Ireland in  a suitable match be propose for the appellant brother James davis the say Ann  his mother in order to make a better provision for he convey to he by deed of  the d of may her part of the distributive share of her husband personal estate  with power to he to give the appellant a release for her share on the  appellant pay or secure pound for the use of the settlement intend on his  marriage and the appellant be one of the party to the marriage settlement  which be date the that of July engage for the payment of that sum to the use  of the settlement and which engagement he punctual fulfil in the appellant  mother die intestate while he happen to be in England and the respondent Alice  take administration of her good and credit and in a little time afterward  intermarry with the respondent Michael Howard without the knowledge or privity  of the appellant or his brother in January the respondent file their bill in  the court of chancery in Ireland against the appellant and the say James davis  his brother and John Tuckey and Judith his wife jane davis and Thomas  Callaghan and Cornelius and mary Callaghan the child of Thomas Callaghan by  Sarah his wife then decease and against Bryan Mac manus Hugh Kirk and Thomas  croker pray a account of the personal estate of the say John davis and to have  the same distribute accord to the statute and that such child as claim any  benefit of that distribution brown shall bring into the mass of the estate all  such sum as they have respective receive from the say John davis in his  lifetime for their advancement in the world the say Alice offer to bring in  pound which she have receive for her particular advancement she likewise as  administratrix of her mother pray a account of the arrear of her mother  jointure and of the distributive share which her mother be entitle to of her  father personal estate the appellant put in his answer to this bill and annex  several schedule thereto contain account of what he have receive and what  still remain of his father personal estate outstanding upon security and of  his own payment and disbursement in respect thereof and by his answer he set  forth the settlement of April and insist on his right to the several sum  thereby or in consequence thereof vest in the trustee of that settlement and  he rely on the agreement make with his mother as to the jointure and on the  grant and agreement in the indenture of the d of may and the that of July  before mention as to his mother distributive share of his father personal  estate and the better to bring those matter in issue he file a cross bill  against the plaintiff in the original cause set forth brown er p those several  matter and pray a discovery of such part of the personal estate and of all  deed and paper relate thereto as be in the hand or power of the respondent the  respondent put in their answer to the appellant cross bill and afterward amend  their original bill and state the settlement of the that of April but insist  that the several estate which have be devise to John davis the father by his  uncle Henry davis and be suffer to descend to the appellant in fee be to be  deem a satisfaction for the pound mention in the settlement they likewise  state that at the time of the death of Henry davis those estate be charge with  large sum the debt and legacy of the say Henry davis amount to pound which  have be since discharge and shall be take to be a satisfaction for the  appellant interest in the trust money they also state the purchase make by  John davis of the lease for life renewable for ever of his house and garden at  Hampstead which he have suffer to come to the appellant although it be in his  power to prevent his take both the estate and the lease the appellant put in  his answer to the respondent amend bill and thereby admit that the estate  devise to the say John davis by his uncle will descend to he clear of all the  encumbrance but insist that the testator debt and legacy have be charge upon  and pay out of his personal estate and that the say John davis have not by any  act or write signify his intention that the appellant shall not have the full  benefit of the settlement notwithstanding the descent of the real estate  accord to the common course of law and that there be no reason to infer brown  any such intention by implication as his personal estate when get in will  afford a reasonable and ample provision for the young child without break  through the rule of law or make any force construction in equity to charge or  prejudice the heir every thing material in the cross cause be put in issue by  the respondent amend bill the appellant do not proceed further therein and the  respondent have reply to the answer of the appellant and all the defendant  except Kirk and Mac manus the bill as to they be dismiss the appellant rejoin  and witness be examine and publication pass the respondent although they can  not suggest or point out any declaration or deed to show that the intestate  intend that the descent of the estate he hold under his uncle Henry will on  the appellant be to be a satisfaction for the trust money settle by the  marriage settlement in yet they endeavour to prove some matter from whence  they will infer such a intention accord they produce evidence to show that the  carrickfergus estate be in worth pound per and and the estate in the county of  Dublin and Kildare pound per and they also produce evidence to show that the  debt and legacy of Henry davis amount to pound and will infer that the pay  those debt and legacy be equivalent to lie out money in the purchase of estate  that it may be consider as a application of the trust money and the suffer  those land thus discharge to descend on the appellant be the same thing as  settle they accord to the direction of that settlement and that the descent  off the carrickfergus Dublin and Kildare estate be a satisfaction of the say  pound as a debt from the say John davis to the appellant they also produce  evidence to show that the appellant father have lie out guinea in the purchase  of the lea for life renewable for ever of a house and garden at Hampstead near  Dublin on which he have lie out a great deal of money in improvement by which  the value of it be increase by the evidence produce for the appellant it  appear that the carrickfergus estate be worth but pound per and and the Dublin  and Kildare estate but pound S that the personal estate of Henry the testator  be considerable more than sufficient to pay his debt and legacy and that he  have direct they all to be pay out of his personal estate except two legacy of  pound and pound which he have give to his nephew Hercules and Henry the  brother of the appellant father and which he direct shall be pay out of the  Dublin and Kildare estate within six month after the appellant father get into  possession of those estate that the lease at Hampstead have be purchase for  pound and the improvement be rather ornamental than beneficial though on  account of they a man of taste may be Willing to pay a advance rend for it  that the executor of Hercules davis the appellant brown er p grandfather have  in assign to Ponsonby brown and Gilbert the survive trustee of the settlement  of the mortgage for pound on Lord Droghedas estate mention in that settlement  and a mortgage for pound on sir Richard buckleys estate which with the money  then pay to the appellant father complete the whole sum of pound which be  subject to the trust of that settlement that the say pound mortgage continue  in the trustee until the death of the appellant father and that the trustee be  by a decree in chancery in the year oblige to convey that mortgage to Lord  Droghedas trustee upon his pay pound and the interest then due that the pound  so receive be lie out on other security namely pound on a mortgage of a estate  of Thomas fortescue esquire and pound on security give by Nathaniel clement  esquire both take in the name of saint ledger Gilbert the then survive trustee  and that Mr fortescue mortgage still subsist at the death of the appellant  father that clements mortgage continue till the year and be then call in  because there be a opportunity of lie the money out at a high interest and  that Gilbert the last survive trustee be then dead his heir at law be oblige  to join in reassigning Mr clements security although from the opinion  entertain of John Davyss care and fortune it be not think necessary to make  use of the trustee name when that money be lie out on another security namely  the mortgage on James shiells estate it also appear that the freehold and  leasehold land comprise in the settlement of be at best but a scanty fund for  the jointure of Ann davis which render it extreme proper that the pound trust  money shall be as it real be a auxiliary fund for her security it appear that  the pecuniary fund be in the lifetime of John davis lessen by the  determination of the lease from sir Henry ONeill on the saint of November that  soon after his death it be more reduce by the determination of the lease from  sir Edmund Stafford in and still more by the determination of the lease of  tithe from Lord donnegall on which his agent enter in and by those several  reduction the trust money become a necessary part of the fund for secure mrs  Davyss jointure it be never pretend that the land of carrickfergus and in the  county of Kildare and Dublin be charge with or any way liable to the payment  of that jointure and it appear that by the descent of the freehold and  inheritance of the carrickfergus estate on the appellant the accession to his  income be but pound per and it be also full prove that his father have grant  he a lease of that estate for year at the rend of pound per annum and that  Judith the heir at law of Henry davis have get possession of that estate on a  ejectment in the year and continue in possession till the year and a paper of  the handwriting of the say John davis and endorse on the back thereof a  computation of deficiency in captain Davyss marriage settlement be also prove  in the word and figure follow videlicet Hercules senior propose and party be  of opinion that freehold land and lease brown will yield during the life of  John and Ann pound per annum and pound per annum during the life of Ann after  John death if not to be make up out of the interest of pound which be pay to  Hercules during his life now Hercules be long since dead and the pound be to  purchase land for John for life remainder to his son in tail the maintenance  fall short of pound per annum and they pretend he have release and that prove  by a person suppose John davis die Ann be to be pay pound per annum out of say  maintenance land which fall short thereof by determination of lease or  otherwise where must that be make up why out of the land purchase with pound  be not that a wrong to John heir the intent be that maintenance land and the  interest of pound shall make good Ann jointure which if Hercules shall survive  will be no wrong to say heir but he die the interest cease for then principal  be to purchase land entire for the benefit of say heir for otherwise the pound  per annum Chargeable thereon for lettuce her jointure and pound for Ann will  be more than say pound purchase will yield note that if the pound be lie out  as by the deed direct the same will then have purchase about pound per annum  whereas it will not now purchase above pound per annum and also it be the  intent of all the party that the say John after the death of his father and  his heir in tail male be to have by the say maintenance land and the estate to  be purchase by the pound pound per annum and as the case now be John heir be  not likely to have above pound per annum it be not the brown er p executor of  Hercules but the executor of Henry who administer to John my grandfather which  be omit in this case and I desire to know what demand I can have of they on  account of my father marriage article which I expect will be lie before Mr  Bernard Samuel and I administer to Henry Ezekiel davis Wilson and Charles  Howard administer to Samuel the other two Howards to Charles Francis and  griffin brother to say Charles decease how miss Sharrard be concern as to my  demand Samuel sister I be to be inform the cause be hear on the that that that  that and that of February before the lord chancellor of Ireland and his  lordship have take time to consider he on the that of march follow be please  to order adjudge and decree that it shall be refer to one of the master to  take a account of the personal estate of John davis decease the appellant  father into who hand the same come and how it have be apply or dispose of and  to report whether any and what part thereof stand out at interest on any and  what security at the death of the say John davis and whether any and what  interest and by who have be receive on account of such security and whether  any and what part of the personal estate of the say John davis have be lie out  at interest since his death and when and by who and whether any interest and  to what amount have be receive on brown account thereof and by who and whether  any and what part of the personal estate of the say John davis since his death  have yield any other and what profit and how much in the whole and who have  receive such profit and also to take a account of what debt be due and owe by  the say John at the time of his death and his lordship declare that the trust  in the deed of and as to the appellant be satisfy by the real estate that  descend to the appellant from John davis his father and that the appellant be  not entitle to any allowance out of the personal estate of the say John on  account of the security in the say deed mention and the master be direct also  to take a account of the personal estate of Ann davis decease into who hand  the same come and how dispose of and to take a account of what provision the  say John davis make for his child in his lifetime and what they receive since  his death from this decree so far as it relate to the point of satisfaction  the appellant appeal insist t jewel g Perrot that John davis his father by the  receipt of the money due on Mr clements mortgage become a debtor to the  representative of the survive trustee in the settlement of and such  representative may and ought to recover the same out of his personal asset and  as the descent of land upon the appellant can be no satisfaction of a debt due  to the appellant himself there can be no pretence to say it can be a  satisfaction for a debt due to the trustee that even the devise of land have  never be heid to be a satisfaction for money or a personal debt or demand  because they be of different nature but in the present case the land descend  do not come to the appellant by the gift of his father but by act of law and  it be a new and unheardof doctrine that a debt due to the heir shall be  satisfy by the descent of land for it will be to put the heir in a worse  condition than any common devisee of land who notwithstanding the devise will  be entitle to be pay his debt unless it be otherwise provide by the will that  in case of debt by specialty or even by mortgage the heir at law or devisee  have a right to have the descend or devise estate exonerate out of the  personal estate and the appellant in the present case suppose he to be a  creditor immediate on his father estate for the trust money or any part of it  as for a debt by specialty will have the same right against his father asset  but such part of this trust money as be receive by the appellant father be by  he place out again on shiells mortgage as a speicifick part of the trust fund  and so remain and if it have not be so place out by he he will only have be a  debtor by simple contract for the same upon the ground of his have receive it  that the word of the decree seem to amount to a declaration that the trust of  the deed of and be satisfy as to the pound mortgage on sir Richard buckleys  estate and the pound mortgage on Mr fortescue estate as well as with respect  to Mr clements mortgage and that those security shall be consider as part of  John Davyss personal estate but there can not sure brown be any ground to say  that those security ever be part of his personal estate they be specifical  bind by the trust of the deed of and which John davis neither have brown er p  it in his power nor attempt or show the least intention to alter and at his  death these mortgage and the money receive by he on Mr clements mortgage be  all liable to make good his wife jointure and therefore must remain subject to  the say trust and yet it may as well be contend that the trust as to her be  satisfy by her husband die intestate whereby she become entitle to a three  part of his personal estate as that the trust be satisfy quoad the appellant  by the descent of land upon he on the other side it be contend c York a  forester that as to pound S d part of the principal sum of pound assign to  trustee by the deed of there be no ground for the appellant retain it out of  John Davyss asset because it appear by the deed of to have be receive not by  John davis but by the survive trustee that if John davis have covenant to lie  out pound in the purchase of land to the use of himself for life with  remainder to his first and every other son in tail male and have purchase land  in fee to that value and permit they to descend to his old son the land so  descend will have be deem a performance of the covenant and the appellant can  not have compel John representative to have lie out pound of his asset so if a  man covenant to leave his wife a certain sum and die intestate and the widow  distributive share of the asset amount to the sum covenant it be a performance  of the covenant see Blandy v Widmore vern p wms davila v davila id and she can  have both heir distributive share and the sum which her husband covenant to  leave her these point be settle by judicial determination that the several  security amount to pound be by the settlement of vest in trustee for the  purpose of be lie out in land and John davis by the deed of undertake the  performance of that trust make himself answerable for the breach of it from  the make of the settlement of this sum must be consider as land and by the  deed of John davis be himself become covenantor that it shall be such when  therefore he leave feesimple land of pound annual value to descend on the  appellant this be a full satisfaction for the breach of trust in not lie out  the pound or rather a performance of the covenant and cut off all further  resort against his asset but it be say that John davis do not himself purchase  the feesimple land which he leave to descend on the appellant and therefore  this differ the case from former authorities He however clear those land of  encumbrance to the amount of pound probable apply but if so or not be  immaterial the pound or so much of it as come to his hand in that way this in  effect make he a purchaser and the appellant virtual receive the pound for it  make no difference whether the money be pay to he or for his use and benefit  but in truth it do not signify whether the land descend to the appellant be or  be not brown purchase by his father no court of law or equity ever inquire  whether the real estate in the hand of the heir be original purchase by the  ancestor debtor for whether he have they by descent or purchase they be asset  for satisfy his obligation and equal beneficial to his heir who be compensate  for his demand by land which the ancestor may have give away from he it be  however further object that it do not appear that John davis intend the land  descend to the appellant to be a satisfaction for the pound or any part  thereof but the intent in these case be to be collect from the substantial  performance of the agreement or covenant as where a debtor leaves a legacy  equal to the debt the legacy if nothing appear to the contrary be a presume  satisfaction of the debt and yet every legacy import a gift or bounty but John  davis have sufficient manifest his intent by a deed of the that of march  whereto the appellant be witness that the appellant shall have no part of the  pound for he therein recite a mortgage debt of pound due to he from Mr tynte  and assign that mortgage to trustee for apply pound part thereof in payment of  his daughter Sarah portion and the residue to himself his executor and  administrator this mortgage be substitute in lieu of some of the original  security and the disposition of it show that John davis do not intend the  appellant to have any part and must therefore mean he a compensation by the  descent of the feesimple land beside the appellant possess himself of all his  father deed and paper which will probable have remove every doubt concern the  intent brown er p that the original security assign by the settlement of be  all extinguish in the lifetime of John davis and sir Richard buckleys mortgage  which be assign as a secondary one by the deed of September be also extinguish  and at a end so that the appellant have no specific lie on any particular part  of John Davyss personal estate but a general demand upon the whole for a  breach of trust in not invest pound in the purchase of land and if under the  circumstance of this case he have the least right to retain any part of his  father personal asset for answer that demand he shall have bring his bill for  establish it whereby the respondent will have have a fair and proper  opportunity of controvert the justice of such demand after hear counsel on  this appeal it be order and adjudge that so much of the decree therein  complain of as declare that the trust in the deed of and as to the appellant  be satisfy by the real estate that descend to he from John davis his father  and that the appellant be not entitle to any allowance out of the personal  estate of the say John on account of the security in the say deed mention  shall be reverse and it be declare that the say deed be satisfy by the real  estate that descend to the brown appellant from John davis his father except  as to the mortgage make for pound and interest by Thomas fortescue to saint  ledger Gilbert the survive trustee and which mortgage belong to the appellant  as first son of the marriage and it be further order and adjudge that the say  decree in all other respect shall be affirm and that the court of chancery in  Ireland shall give all proper direction for carry the say decree with this  variation into execution jour vol p settlement