case west versus ERRISSEY in chess S c in h l bro p c refer to Streatfield v  Streatfield can t Talb Eastwood v lockwood l r Eq in re Martin l I Ch Com Rep  Eq can Abr pl see post Powel versus price article on marriage to settle land  on husband and wife for their life remainder to the heir male of the body of  the husband by the wife remainder to the heir male of the body of the husband  by any other wife remainder to the heir female of the body of the husband by  this wife a settlement be make before the marriage and say to be pursuant to  the article whereby the land be limit to the husband for life sans waste and  with power to make lease remainder to the first c son of the marriage in tail  male remainder to the first c son of any other marriage in tail male remainder  to the heir of the body of the husband there be issue two daughter and the  husband suffer a recovery and devise the premise to his sister the daughter  may in equity compel the devisee to convey the premise to they the bill be to  have the benefit of marriage article date December and make on the marriage of  Richard Errissey with Frances the daughter of sir Peter killigrew and that the  settlement which either through mistake or fraud be make in a different manner  from what be contain in the article may be set right the two plaintiff mary  and Frances west be the grandaughters and coheir of this Richard Errissey and  Frances his wife and by the say marriage article James Errissey the plaintiff  grandfather uncle be seize in fee of diverse manor and land in Cornwall and  Devonshire do in consideration of the marriage and marriage portion covenant  to peer William settle great part of the premise mention the parcel peer  William er p to the use of Richard Errissey the plaintiff grandfather the then  intend husband of Frances for life without waste remainder as to part to the  use of Frances the intend wife for life remainder of the whole to the heir  male of the body of the say Richard Errissey by Frances remainder to the heir  male of the body of the say Richard Errissey by any other wife remainder to  the heir female of the body of the say Richard Errissey by Frances remainder  over with power for the say Richard Errissey to make lease for three life and  to make a jointure afterward and before the marriage by indenture date the  that of march in the same year a settlement be make of the premise and mention  to be in pursuance and performance of the article by which James Errissey the  uncle convey the premise to the use of Richard Errissey the husband for life  sans waste remainder to Frances his wife for her life for her jointure  remainder to the first c son of the marriage in tail male successive remainder  to the first and every other son of the say Richard Errissey by any other wife  in tail male successive remainder to the heir of the body of the say Richard  Errissey by the say Frances remainder over by which settlement there be a  omission of trustee for support contingent remainder and instead of limit a  remainder to the daughter of the marriage the limitation be to the heir of the  body of Richard Errissey by the say Frances which plain give a estatetail to  Richard Errissey and consequent a power to bar the daughter of that marriage  and also the remainder over by a recovery peer William Richard Errissey have  issue by the say marriage one only daughter mary and in Trinity term take  advantage of this mistake sell part of the premise to the amount of pound and  upward and have suffer a common recovery of such part of the premise as remain  unsold by indenture of the that of February convey the premise unsold to  trustee worth and Herle and their heir in trust to himself for life remainder  to such trust as he shall declare by will afterward the say Richard Errissey  by will date the that of December devise the premise to his sister the  defendant mary Errissey and her heir except a small tenement which he devise  to one barrable and his heir and have make the defendant mary Errissey  executrix die in January follow mary the daughter of Richard Errissey by  Frances marry colonel west and they have issue the now plaintiff mary and  Frances west both infant mary west the mother die and the two plaintiff mary  and Frances west bring their bill against mary Errissey in order to rectify  the mistake in the settlement whereby the premise instead of be limit in  strict settlement as they ought to have be in compliance with the article and  the intent thereof be settle in tail upon the say Richard Errissey but as to  the premise sell the bill do not seek to disturb the purchase only to recover  the purchase money out of the asset of Richard Errissey peer William the  defendant mary Errissey plead the settlement of the common recovery the will  of Richard Errissey and the long enjoyment of the premise and the plea be  argue before the Lord chief baron Gilbert and the other baron the same be  overrule unanimous afterward the cause come on to be hear before Lord chief  baron Pengelly who have succeed to that place on the death of Lord chief baron  Gilbert and the baron hale carter and comens the bill be dismiss without cost  Dec it be dangerous as it be say to set aside a settlement which seem to have  be deliberate and solemnly make that it appear the daughter of this marriage  be postpone to the son of a subsequent marriage and so their advancement by  this reversion be not so much regard that though the case of Trevor and Trevor  vide vol be a instance in point where marriage article for settle land on the  husband for life remainder to the heir male of his body by his then intend  wife have be construe to mean his first and every other son in tail male yet  where there have be another remainder whereby the premise be agree to be limit  to the heir female of the body of the husband by the wife this have never be  construe to mean daughter the son be more to be regard than daughter as they  preserve the name of the family beside that the settlement of have be attest  by sir Peter killigrew father of the say Frances from this decree a appeal be  bring in the house of lord bro p c peer William er p bro p c and ed where it  be insist saint that by the marriagearticle peer William it be agree that the  estate shall be limit to Richard Errissey for his life sans waste and that he  shall have power to make lease which be a plain evidence that the estate be  intend to be limit in strict settlement and that Richard Errissey shall be but  tenant for life and have no power to bar either his son or daughter by fine or  recovery dly that the settlement take notice of the article and be express  mention to be make in pursuance and performance thereof which word be a  demonstration that the party do not design to depart from or vary the term of  the article nor have come to any new agreement for that purpose and that it be  apprehend the limitation in the settlement under which Richard Errissey by  construction of law become tenant in tail have proceed from the mistake or  negligence of the counsel who draw the same and not from any agreement or  design of the party to vary the term of the article of which mistake or  neglect the omission of the common limitation to trustee to preserve  contingent remainder be a plain proof dly that the respondent be a volunteer  under the will of Richard Errissey who take advantage of the mistake in the  settlement and suffer a common recovery to bar his issue although mary his  daughter be then live which be apprehend to have be a manifest breach of trust  in he indeed it have be object that although court of equity have in like case  decree a execution of marriage article in strict settlement in favour of son  yet have they not extend it in favour of daughter who be most common provide  for by a term for year to raise portion for they in case of issue male peer  William but sure the reason seem to be as strong that the expression of heir  female of the body contradistinguish from son shall in marriage article have  the same construction in favour of daughter as the expression of heir male in  favour of son since both be equal under the contemplation of the party and  especial since in the present case there be no other provision for daughter  beside the limitation intend they by the marriage article say vide Powell v  price post and accord to the common course where a provision be make for  daughter by a term for year it be always so limit as to be out of the power of  the father to bar it it have be object dly that the settlement be make before  the marriage it be to be presume that the party come to some new agreement to  vary the term of the article and that the settlement be make to the  satisfaction of sir Peter killigrew who be a witness to the settlement as he  have be a party to the article resp but it seem the settlement be not only  express to be in pursuance and performance of the article but the appellant by  their bill charge that the party come to no new agreement after the date of  the article to vary the term thereof the respondent Errissey by her answer  have admit she never pretend that the party after the article come to any new  agreement to vary they and as to sir Peter killigrew be a witness to the say  settlement he as most gentleman in like case rely upon his counsel frame the  settlement so as to answer the intent of the article be himself a stranger to  the form and method thereof peer William object dly but after such a length of  time and a acquiescence under the settlement the appellant ought not at this  time of day to have resort to the article of marriage resp the appellant be  infant who title do not accrue till after the death of Richard Errissey the  grandfather in January and they file their bill for relief within a short time  after thly it have be object if the article of marriage shall be allow to  control and vary the settlement the purchaser under Richard Errissey will in  consequence be affect vide Warrick v Warrick atk senhouse v earl Amb hardy v  reeves Ves Ves Parker v brook Ves to which it be answer that the appellant  bill be not bring against any purchaser since as to those part of the estate  which be sell by Richard Errissey the appellant only pray that they may have  satisfaction for the same out of the personal estate of the say Richard  Errissey which have be principal acquire by those sale in breach and violation  of the trust and that by the condition in his will annex to the trifle and  fruitless bequest to the appellant his granddaughter and heir at law he seem  to be aware of the injury he have do they and that his personal asset will be  liable to their demand in respect thereof peer William er p whereupon the  house of lord reverse February this decree of dismission and decree that the  trustee worth and Herle and the respondent mary Errissey shall convey such of  the premise as be comprise in the article to trustee to the use of the  appellant mary and Frances west and to the heir peer William female of their  body as tenant in common with cross remainder to they in tail female and the  respondent mary Errissey and barrable to account for the profit and to pay the  same to the appellant the infant also mary Errissey the executrix to account  for the purchasemoney that have be receive by the say Richard Errissey for  such part of the premise as he have sell and pay the interest thereof to the  appellant mary and Frances west and the respondent to bring their write into  the court of exchequer and deliver up the possession to the appellant the  infant but as to the principal money arise by the say sale these be to be lie  out in the purchase of land in fee to be settle to the same use as the land  unsold be decree to be convey the rule of execute marriagearticle by  limitation in strict settlement although the article by legal construction  give a estate of inheritance to the husband or wife be establish in favour of  issue male by many case first where there be article only as in Jones v  Laughton Eq can ab pl Nandick v Wilkes Eq can ab pl cusack v cusack bro p c  bro p c and ed Trevor v Trevor ante vol Robinson v Hardcastle t r so where  there be article before marriage and a settlement be make after marriage in  the word of the article as in Streatfield v Streatfield can tempt Talb or  where there be both article and settlement before marriage and the settlement  be make in pursuance of the article as in honour v honour ante vol Robert v  Kingsley ves but otherwise where the settlement make before marriage be not in  pursuance of the article for then the party will be presume to have come to a  new agreement leg v Goldwire can tempt Talb partyn v Robert Amb accord to the  case of Burton v Hastings pale yellow Eq Rep west v Errissey above heart v  Middlehurst atk the same equity arise to the issue male send contra Powell v  price post but in Powell v price the article provide for the issue female by a  portion the want of which provision be one of the reason for the lord  judgement in west v Errissey Com Rep and in Powell v price the article express  limit the estate to the first c son whereas the limitation under which the  daughter claim be mere a remainder to the heir of the settlors body not say  heir female so that it may well be suppose that the party to the article  intend a remainder in strict settlement to the son only see Howell v Howell  ves and the remark on west v Errissey and Powell v price in Fearne c r that  edit the case above mention be decide on this principle videlicet that it be  inconsistent with the idea of a settlement to give such a estate to a parent  as to enable he to defeat immediate all the limitation in favour of the other  branch of the family but where that mischief do not occur or where the  intention of the party to create a estate of inheritance be sufficient  explicit it seem the rule be not applicable chamber v chamber mos green v  Eakins atk partyn v Robert Amb Cordwell v mackrill Amb S c Eden highway v  banner bro c c see Randall v Willis Ves taggart v taggart Sch l and the case  collect in note to uvedale v Halfpenny ante