case parson against parson approve but distinguish Haswell v Haswell de g f I  follow in re stone estate ir r Eq approve in re dun trust l r ir the case upon  the will of Mr alderman parson touch the distribution of his estate as a  freeman of London upon the marriage of the late Mr alderman parson with the  plaintiff his wife then Sarah Crowley article be enter into date the  fourteenth of April between Mr parson of the first part sir Robert nightingale  and Mr Crowley of the second part and the plaintiff of the three part whereby  recite the intend marriage between the plaintiff and Mr parson and that Mr  parson by his bind bear even date therewith stand bind to Mr Crowley and sir  Robert nightingale in the penal sum of twenty thousand pound subject to a  condition for the payment of eleven thousand pound within six month after the  intend marriage and of eleven thousand pound which Mr parson will have with  mrs Crowley as her marriageportion it be covenant that the say bind and the  say eleven thousand pound thereby secure and the grow interest thereof shall  be for the use and benefit of Mr parson and his child b that mrs Crowley in  the manner hereinafter mention videlicet that if Mr parson shall pay the  eleven thousand pound accord to the condition of the say bind then it shall be  lawful for the trustee by and with the consent of the say Mr parson and mrs  Crowley and the survivor of they to lie out the say eleven thousand pound  accord to the condition of the say bind or any part thereof in the purchase of  land or place it out at interest in the fund or other public or private  security upon trust that Mr parson shall have and take the rend interest and  profit thereof for his life and after his decease that all the principal money  or the land or other security purchase therewith shall be pay and convey to  the use and for the portion of all modern report the daughter or daughter  young son and son at such time and time and in such share and proportion and  subject to such proviso and condition and in such manner and form as the say  Mr parson and mrs Crowley shall at any time during their joint life or of the  survivor of they by any write under his or their hand and seal to be subscribe  in the presence of three or more credible witness direct limit and appoint and  in default of such direction then equal among all the daughter and young son  if more than one but if only one then to that one and in default of child or  child then to Mr parson his heir and executor with a power to trustee either  to continue the say eleven thousand pound upon Mr parson bind or to call it in  and lie it out upon the purchase of land or other security then come a proviso  that if Mr parson shall in his lifetime give unto such daughter or daughter or  young son or son any portion or portion or shall leave such child or child any  sum or sum of money land or tenement good or chattel at the time of his  decease then the say portion or portion or money so give by he or leave and  the value of the land tenement good and chattel so to be to he to they or any  of they leave as aforesaid shall be take and account as part of the portion or  portion thereby to they provide unless he shall declare the contrary thereof  by any write or by his last will and testament the marriage take effect but  the eleven thousand pound be never pay but continue on Mr parson bind and be  by will in have one son and one daughter only Sarah direct his wife to pay his  daughter Sarah the sum of eleven thousand pound at such time and in such  manner as he by his marriagesettlement be oblige to pay the same and make his  son John residuary legatee and his wife sole executrix in Mr parson have then  two daughter Sarah and whether by codicil recite his will and that he have  since the make of it another daughter bear thereby direct his wife to pay for  the use of both his daughter Sarah and whether the say eleven thousand pound  in such manner as by his marriagesettlement he be oblige to pay the same and  thereby give to his say two daughter nine thousand pound to be equal divide  between they to be pay at their respective age of twentyone or modern report  er p day of marriage which shall first happen in case his say daughter shall  marry with the consent of his wife and to be first have in write under her  hand but in case either of his daughter shall marry without her consent that  the share of the nine thousand pound so belong to either of his say daughter  so marry shall merge and sink into his personal estate for the use and benefit  of his son John parson and in case both his say daughter shall marry without  such consent that then the whole nine thousand pound shall merge and sink into  his personal estate for his son benefit Mr parson be a freeman of London die  soon after leave his son John and two daughter Sarah the old marry the  defendant don without her mother modern report consent whereupon mrs parson by  deed make a appointment of the eleven thousand pound under the article and  appoint five hundred pound thereof to her daughter Sarah and the remain ten  thousand five hundred pound to her daughter whether and now mrs parson the  widow bring her bill for a account of and touch the distribution of her  husband estate and among several other point arise upon the article will and  codicil the follow which be the only material one be determine Hardwicke Lord  chancellor the first point relate to mrs dun portion give by the codicil and  this seem very clear the portion be give only in case the daughter marry with  their mother consent and if they marry without consent the portion be direct  to sink into the residue for his son benefit which direction for sink into the  residue be in the case of Hervey v Aston a comy Rep Eq Abr case t t atk a hold  by the two chief justice Mr justice comens and myself to be equal to and the  same as a devise to a particular person as to the eleven thousand pound there  be no doubt of mrs parson power of appoint it but I think the whole interest  thereof must be allow for the maintenance of the two daughter equal unto the  time when the plaintiff make the appointment the next question be how the  distribution shall be make under the custom of London the plaintiff mrs parson  be bar by her marriagearticle from any claim under the custom of London the  division must be in moieties one to the child the other to the freeman part as  it have be often determine and this so long as in hall v Lumley in b Tothill b  Hancock v Hancock c vern c Clare v Ashmosty and Rawlinson d cite will d but  the question of the great consequence be whether in case any of the daughter  shall elect to take by the custom such daughter shall be oblige to bring into  hotchpot what she shall take of the eleven thousand pound for though the  general rule be that whatever be receive by the child of a freeman in his  lifetime by way of advancement must be bring into hotchpot yet there may be a  exception and it be not every sum a child take from his father that shall be  bring into hotchpot the provision of the eleven thousand pound arise from the  article where the trust be declare that it shall be lawful for the trustee to  lie out the eleven thousand pound subject to such proviso and condition as the  survivor of Mr parson and his wife shall appoint with a power to the trustee  either to call in or continue the bind now nothing be more certain than that  what be to be divide or distribute must be take as thing stand at the freeman  death not but that the modern report estate may be increase or diminish but  the right be then to be fix and this provision of eleven thousand pound under  the article be mere contingent at Mr parson death it may have be appoint at  any time during the plaintiff life or by her will and till she have execute  her power be a mere contingency so that if there be no more in the case it  will be exact that of Newland v shepherd a Peer wms a beard first by Lord  Macclesfield and then by Lord king where the question be whether the daughter  be full advance turn only upon a provision of one thousand pound she be  entitle to be liable to a contingency at her father death Lord Macclesfield be  of opinion it be no advancement but that she shall receive her full three of  her father estate without any bring into hotchpot there be no bring into  hotchpot where there be but one child and no collusion modern report er p  between the child and widow which be affirm by Lord king the present case  indeed be endeavour to be distinguish from that as there the question be  between one child only and the widow but still the substantial point be  whether a contingent provision the contingency not happen in the father  lifetime be a advancement the point be the same between a only child and the  widow and many child and her and in order to make this the better understand I  will state that case of Newland v shepherd b Eq case Abr b a freeman of London  have marry his only child to Mr Newland and by her marriagearticle contract to  give her a portion of seven thousand pound Payable by instalment of one  thousand pound a time the last of which be to be pay at the end of ten year if  his daughter or any child of she be live at that time shepherd die before the  expiration of the ten year but the daughter live to the end of they and the  question between her and the widow be whether she be full advance for if she  be she can claim no orphanage part and the court refer it to the master to  inquire what be the value of the estate it be report to be eighteen thousand  pound which bring it to a very nice question for if the whole seven thousand  pound be consider as a advancement to the daughter then she be full advance  have receive her full three and Lord Macclesfield be of opinion that she be  not full advance but shall be let into one clear three of the residue as there  can be no hotchpot between a child and the widow that be only between the  child themselves and in such case the child come in for a entire three of what  be leave the ground of which opinion be that this sum of one thousand pound  which be to be pay at the end of ten year if the daughter or any child of she  shall be then live depend upon a contingency be not a advancement at the death  of the father and upon this point the cause be reheard by Lord king who be of  the same opinion and affirm the decree but another distinction be take between  that case and we that modern report here the eleven thousand pound be a debt  due in the father life which be not so of the one thousand pound in that of  Newland v shepherd that it be not due be certain but that will not alter the  child right which still remain contingent there be another case determine on  the point by Lord king which be strong than the present that of Feast v Feast  that April a Eq Cas Abr a where sir Felix Feast a freeman of London upon his  marriage agree to leave his wife if she survive he have one or more child two  thousand pound his old son two thousand pound and one thousand pound apiece to  his young child and if his old son die before twentyone the two thousand pound  to be pay to the next son and in case any of the young child die before that  age the one thousand pound to be equal divide among the other young child the  provision make for the wife be by the article agree to be in bar of her dower  and claim by the custom of London but nothing be say as to the child sir Felix  Feast die intestate leave a widow and a old son a daughter marry and advance  and two or three young child the old son insist he be entitle to his two  thousand pound in nature of a debt out of his father personal estate and also  under the custom to a equal share with his brother without bring anything into  hotchpot and decree by Lord king that the two thousand pound which lady Feast  claim by the marriagearticle the two thousand pound claim by the old son and  the one thousand pound claim by the young child be a debt on the personal  estate and shall be pay with interest from the father death and the surplus to  be divide in moieties one whereof to go accord to the custom among all the  child and the other accord to the statute of distribution without any  direction for bring into hotchpot this be the Lord king opinion who have be  recorder of London and I look upon it as a express authority in point that  this contingent provision in the present case ought not to be bring into  hotchpot there be indeed two case object to by the defendant counsel that of  Edward v freeman b Peer wms b and Townshend v Townshend hear by Lord Talbot d  may the first of which be upon the statute of distribution be not strict ad  idem for though it be sometime say that the statute be form upon the plan of  the custom of London yet it be not to be take so throughout the custom and  statute differ modern report er p material in many point and particular in  that now in question the statute require any estate which the child have by  settlement from the intestate to be bring into hotchpot and upon this it be  that the master of the roll opinion turn he hold that the word estate include  both real and personal that it be not material whether the advancement be in  the father life or not it be a estate by settlement which must be bring into  hotchpot though this be not in the report of the case by modern report Mr peer  William yet it appear by my note to have be the principal ground of his  opinion thus it stand upon the statute but the custom of London relate only to  advancement in the father lifetime that of Townshend v Townshend be indeed  upon the custom but upon a very different reason and not at all applicable  here a freeman of London have covenant that if his wife die before he leave  child by he that after his death his executor shall pay four thousand pound  among her child as his wife shall direct the wife die in his lifetime leave  one child only the husband marry again and have other child and hold by Lord  Talbot that if this child will claim any further share by the custom the four  thousand pound must be bring into hotchpot for the wife be dead and but one  child of the marriage there be no contingency at the father death but the four  thousand pound vest immediate in that child by the death of the mother and in  the father lifetime so that neither of the case shake the authority of Newland  v shepherd and Feast v Feast there be reason in the present which will  determine my judgement in this point in Edward v freeman a Peer wms Eq Abr a  it be agree by all the court that the contingency on which the provision  depend must be so limit as to arise within a reasonable time to warrant the  bring it into hotchpot whereas in this case it may have wait during the whole  life of the mother who can appoint it by deed in her lifetime or by her will  how then can it be a advancement in the father life or at his death as be the  word of the article none of the child be then entitle to any certain part it  may be say that after the mother death or when she have make the appointment  the child shall refund what they have receive out of the orphanage part but  what confusion will this make in the child share who can never know for  certain the quantum thereof without make the distribution of the estate to  wait until the mother have make the appointment there be another strong reason  which be that mrs parson may make the appointment subject to such proviso and  condition as she shall think fit which though this court will construe to be  such as be reasonable yet if upon marriage of one of her daughter mrs parson  have appoint a particular sum with condition that if such daughter leave no  issue it shall go to the other child it must have wait and can not be know  whether to be bring into hotchpot till it be know whether she do or do not  leave issue beside all this there be another consideration that have great  weight with I which be that I do not look upon the sum of eleven thousand  pound as part of Mr parson personal estate at the time of his death but as mrs  parson marriageportion lend to her husband and if so this will go to the rest  of all the argument that have be urge for bring it into hotchpot the court  upon judge upon marriagearticle consider the intent of the party more than the  word the portion be eleven modern report thousand pound Mr parson in  consideration thereof give bind to pay to the trustee to who a power be  reserve of continue the money upon that bind if they think proper the main  intent be to secure this sum for the young child portion have the trustee not  leave this money in Mr parson hand he can not have make use of it in his trade  and therefore this method be take of lend it to Mr parson still reserve a  power to they to call it in when they think fit and what make I not to  consider it as part of Mr parson estate be that have the trustee call it in  and place it out at interest and pay Mr parson the interest during his life it  will never have be call part of his personal estate and consequent not liable  to be bring into hotchpot upon the whole of the matter I be not at all  doubtful in this point else I shall have send it to be certify by the recorder  but be clear I will not put the party to the expense and delay with which that  method will be attend modern report er p the next question arise upon the  proviso in the article that if Mr parson shall give or leave such young child  any portion or sum that such portion or sum so give or leave shall be account  part of the portion thereby provide whether the orphanage share of such  daughter as shall elect to take by the custom be to go in satisfaction of the  eleven thousand pound or any part thereof and I think it shall not the word  leave may indeed include a provision to come by act of law but in the present  case it be confine to leave by a voluntary act and the subsequent word unless  he shall declare the contrary by any write plain show the party mean such a  leave as the father may direct to go in part of satisfaction the antecedent  right which the child have to their orphanage share under the custom against  any disposition of the father distinguish this case from that of Blandy v  Widmore a vern a where the husband leave to descend or be distribute what he  may have dispose of otherwise which be therefore construe a satisfaction but  there be still a material reason against this be a satisfaction which be that  the child orphanage share be liable to other contingency than their share of  the eleven thousand pound the orphanage share of such as die under twentyone  go over to the survivor but in the present case Mr parson may limit eleven  thousand pound upon quite different contingency and in the case of Savile v  Savile b Chan Rep b it be hold that a estate which go in satisfaction of  another ought from the nature of the thing to have the same quality with that  which it be intend to come in the place of and it signify nothing to say that  the contingency have not happen for it be enough that they may have happen