case pullen versus ready et e con January will SC c by his will give legacy to  his niece to be pay to they at or marriage which shall first happen provide  they marry with the consent of their father and mother or the survivor of they  otherwise to sink into his personal estate the legacy vest at their attain the  age of and either of they marry without consent afterward be of no consequence  for Lord Hardwicke hold than the marriage with consent of father and mother  must be construe so as to relate to the time of the legacy vest the question  in this cause arise upon the will of Colston in the year Edward Colston devise  several message land c to five trustee and their heir in trust for his grand  niece Sarah Colston for her life with limitation to her son and daughter in  tail remainder as to one moiety to Francis Colston one of his executor for  life remainder to his son and daughter in tail remainder to mary Edward and  her son and daughter in tail remainder as to the other moiety to mary Edward  and her son and daughter in tail remainder over the testator direct the  residue of his personal estate to be lie out in the purchase of land to be  settle to near the same use the land be charge with debt and legacy and the  last remainder in trust for mary Edward and her son and daughter in tail  atkins he give several pecuniary legacy inter alian he say I give to my cousin  mary Edward pound to be put out to interest for her separate use and after her  decease I appoint the say principal sum of pound to be pay to her daughter  Sophia at her day of marriage or twentyone which shall first happen item I  give to her daughter mary pound and I further give to her sister Sophia pound  which say several sum shall be pay to they at their age of twentyone or day of  marriage which shall first happen provide they marry with the consent of their  father and mother or the survivor of they or otherwise their legacy to sink  into my personal estate item it be m that will and I do hereby declare that if  the say Sophia and mary daughter of my say niece mary Edward or either of they  shall hereafter marry with any person or person whatsoever without the consent  of their father and mother and the trustee name in the say will or the great  number of they live signify under their hand then it be my will that such of  the daughter so marry shall have or receive no more benefit or advantage by my  say will or any thing therein contain than if they be actual dead or not name  in my say will either by particular name or daughter in general Sarah Colston  die without issue unmarried mary Edward have issue three daughter Sarah mary  and Sophia Sarah marry in the lifetime of the testator in a manner disagreable  to he mary marry to Lord Middleton with such consent as the will require  Sophia in August arrive at her age of twentyone on the that of January by deed  enrol between Thomas Edward of the first part and Sophia Edward of the second  part c a recovery be suffer mrs Edward be then live and the use declare to  Thomas Edward for life then to the use of such person or person and for such  estate c as the say Sophia shall by deed or write to be by her duly execute  with the consent of the say Mr Edward during atkins er p his life testify by  his seal such deed in t e presence c direct c and for want of c to the use of  Sophia her heir and assign for ever in Feb Sophia marry without consent to Mr  ready she be then near year of age and previous to such marriage he settle a  annuity out of his own estate of pound per and and settle her own estate to he  and her for their life and the life of the survivor and to the issue of the  marriage and for default of c to her in fee Mr Edward who be one of the  executor and entitle in right of mary Edward his wife to a moiety of the  testator estate neglect to pay Lord Middleton part of his lady be fortune a  sequestration issue out of the court of chancery against the say Mr Edward and  his estate be sequester and he abscond atkins on the that of July in order to  make Lord Middleton satisfaction for his demand and to settle the whole family  affair a draft of article be prepare and approve by counsel between Thomas  Edward and mary his wife of the first part Lord Middleton and his lady of the  second part John pullen and Sarah his wife of the three part and Mr ready and  Sophia his wife of the four part it be execute by all the party in these  article Lord middleton marriage and sequestration be recite and in order to  satisfy Lord middleton debt of pound it be thereby agree that the plaintiff  pullen and Sarah heir shall within one month after the say mary Edward death  have convey to they as many land devise to they by the say testator as shall  be worth pound the defendant the Lord Middleton take the feefarm rend at pound  that they the defendant ready and Sophia and the heir of Sophia shall have  convey to they and the say Sophia heir land of the value of pound devise by  the say testator will and that a division shall be make of all the estate  which the say Thomas Edward and mary his wife possess in her right as devisee  of the say testator S will so that each may have a equal share after the say  mary Edward death mary Edward die in march by indenture date October recite  the article and in pursuance thereof and as and for a satisfaction and in lieu  of pound therein recite to be part of lady middleton fortune pullen and ready  and their wife convey the say feefarm rend to lady Middleton in fee ready and  his wife bring their crossbill to have pound raise pursuant to the article  they submit that pullen and his wife shall have the like sum of pound raise  and to have a division make of the residue of the estate in three Edward  pullen and ready covenant for themselves and their wife to convey to Lord  Middleton certain feefarm rend as part of the estate and share of lady  Middleton give by the testator will and thereby agree that within one month  after the death of mrs Edward pullen and his wife shall convey as many land as  be worth pound in like manner to ready and his wife and further agree that  after mrs Edward death a equal division shall be make between the three  daughter of mrs Edward of all the estate belong to mrs Edward as devisee of  Colston on the that of September there be a indenture execute between the same  party wherein the will and settlement of Colston be recite and fine and  recovery suffer Sophia have receive her legacy of pound and she and her  husband apply to Lord Middleton and to Mr pullen and his wife to have a  division of the estate pursuant to the will and article Lord and lady  Middleton be Willing to do their part Mr pullen and Sarah his wife who have  marry very mean a second time object that Sophia marry without consent have  forfeit her right in the three of what shall come to her upon the death of her  mother the three sister be now coheir to the testator Mr ready by his answer  to Mr Pullens bill put in issue the article and insist upon they more at large  by his cross bill Lord chancellor there be two question in these cause first  as to the five hundred pound legacy atkins second as to the clause and  condition in colston will by which the plaintiff in the original bill insist  on a moiety on account of mrs Readys forfeiture as to the first question there  be nothing in it and have be determine over and over the usufructuary benefit  be give to the mother for life only and be like the case of king and wither  can tempt Talb p W S c h term and several other case since the marriage with  consent of father and mother be always construe now so as to relate to the  time of the legacy vest and if the party arrive at the age of twentyone it  vest and the marry without consent afterward be of no consequence so Garbut v  Hilton atk Atkins v hiccock ante vol Elton v Elton atk Hemmings v Munkley bro  Charles Rep the second question be more difficult and depend upon the  limitation in colston will as to the real estate in possession and the money  which be direct to be lie out in land give to mrs Edward for life c vide the  will item it be my will and I do hereby declare that if the say Sophia and  mary c now this clause as to the legacy of five hundred pound and five  thousand pound if it be take to extend to they the clause be very general have  no devise over attend upon it must be consider only in terror and therefore no  forfeiture ensue and may be lie out of the case Bellasis v ermine Charles can  Semphill atkins er p v Bayley pre Charles jervois v duke vern Dailey v  Desbouverie atk Reynish v Martin atk Elton v Elton atk I must consider it then  with regard to the real estate vide Harvey v Aston ante atk note at end of  case to be sure the ecclesiastical court have no jurisdiction here nor have it  ever be apply to condition annex to real estate there may perhaps be some  doubt as to the money but as this court consider money direct to be lie out in  land as land this be likewise exempt from the ecclesiastical law Trelawney v  booth ante Oldham v Hugh ante Guidot v Guidot atk note one question have be  start what will be the consequence of this forfeiture with regard to the real  estate and who can claim the benefit of it it have be insist by the counsel  for Mr pullen that hero be something in the nature of a cross remainder now if  it rest only in the intention of the testator that be by no mean sufficient  for if a man devise to daughter as tenant in common and there be no express  devise over to the other upon one of they die or not perform a condition the  share of such daughter will descend upon the heir at law of the testator  atkins the clause be thus word that a daughter so marry shall have or receive  no more benefit or advantage by my say will or any thing therein contain than  if she be actual dead the consequence of this be that it will go as the law  will have say to the right heir of Mr Colston after Sophia Edward now ready  arrive at her age of twentyone she join with her father in suffer a recovery  and declare the use of her share the general notion of common recovery be that  it bar estatestail remainder over and extinguish all condition and power and  all incident annex to a estatetail indeed as Mr attorney general say it will  not bar a mortgage because that be to be consider as a charge upon the estate  and can be defeat but the force of a conveyance by common recovery to  extinguish all these power arise from hence that the law consider it in the  nature of a real action and the recoveror be in by right vide the case of page  versus Heyward in Pigot and salk which be in point vide Gulliver v Shuckburg  burr driver v Edgar Cowp therefore all that be in possession at the time be  out of the question and the condition as to that be bar and as to the money  not yet lie out in land the article of the that of July have likewise bar any  eight that may have accrue from the forfeiture to the other two sister upon  mrs Readys marry without consent for at the time of the execution of the  article it can not but be know that Mr and mrs ready marry without consent  because Mr and mrs Edward Lord and lady Middleton Mr and mrs pullen be all  party and can possible be suppose to be ignorant of this fact which happen  some year before it be say they may know the fact and yet not know the  consequence in law but if party be enter into a agreement and the very will  out of which the forfeiture arise be lie before they and their counsel while  the draft be prepare the party shall be suppose to be acquaint with  consequence of law as to this point and shall not be relieve under a pretence  of be surprise with such strong circumstance attend it beside here be a  departure from the will for the article be plain different be a conveyance to  pullen and his heir instead of a estatetail give under the will so that with  the knowledge of the will and all the clause in it the condition annex and the  forfeiture the party with their eaves open execute this deed it have be insist  chief by Mr Pullens counsel that they execute the article under a mistake vide  maiden v Meynill atk atkins there be nothing more mischievous than for this  court to decree a forfeiture after a agreement in which if there be any  mistake it be the mistake of all the party to the article and no one of they  be more under a imposition than the other this court be so far from assist to  set up the forfeiture again that they will rather rejoice at the agreement  because it have absolute tie up the hand of the court from meddle in the  question and if I be to decree the forfeiture now it will be make all  agreement vain and nugatory the case that come near to the present be can  versus can before Lord Macclesfield p W see Stapleton v Stapleton ante atk  atkins er p I must decree therefore Pullens bill to be dismiss without cost so  far as it seek any relief with regard to the forfeiture and under Mr Readys  cross bill I shall direct the article to be specifical perform and to be carry  into execution Reg lib b fol under the title of ready v Colston