case Lowther versus give February SC cite Ves Barnard Chanc S c Thomas give  make his will wherein be these word imprimis I give and bequeathe unto my  daughter Isabel give and Diana give the sum of pound apiece to be raise and  pay unto they and each of they immediate after my death out of the rend issue  and profit of my land and tenement in will Newton Ballerwicke and Bogthorpe in  the county of York or by sale or mortgage of the same or a competent part  thereof together with interest for the say respective sum after the rate of  pound per cent per and from the time of my decease until the several  respective sum of pound shall be duly pay to my say daughter or their  respective executor administrator or assign item I give and bequeathe unto  each of my say daughter the sum of pound to be raise and to be pay unto they  several and respective immediate after the decease of my wife out of the rend  issue and profit of my manor land tenement and hereditament in Willoughby in  the say county of York or by sale or mortgage of the same or a competent part  thereof together with interest for the say several sum of pound after the rate  aforesaid from the decease of my say wife until the say sum shall be duly pay  to my say daughter or their respective executor administrator or assign and my  further will be that in case either of my say daughter shall depart this life  before I then the survivor of my say daughter her executor atkins er p  administrator and assign shall have and receive all and every the sum and sum  of money herein by I before devise out of my say land to be raise in the  manner herein before appoint and in such case the part of the daughter so die  shall not cease or sink into the estate for the benefit of my heir but shall  remain and be raise for the benefit of my survive daughter atkins last I  bequeathe all my chattel real and personal and all my good movable and  immovable and all my personal estate whatsoever unto my say daughter and do  make and constitute they executor of this my last will and testament in  witness c the testator die and leave one son Thomas and two daughter Diana and  Isabel in after the death of the testator Diana intermarry with sir William  Lowther Diana die in whether the mother die in the year follow the present  bill be bring by sir William Lowther against Thomas give and Isabel who have  intermarry with Mr Pitt in order to have the sum of one thousand pound mention  in the will raise out of the estate which be thereby charge with it Lord  chancellor say his opinion be that the si ought to be raise he own it be very  true that there be a establish and fix distinction between legacy charge upon  the personal estate and legacy upon the real see Mr Cox note to the duke of  chandos v Talbot p wms and though this will have be clear a vest legacy in  case it have be Chargeable upon the personal yet it be not so clear a case as  it be Chargeable upon the real estate but still there be sufficient ground to  say even in the present case the legacy be a vest one and the plaintiff  entitle to it the word of the will be in this manner I give and bequeathe to  each of my daughter the sum of pound to be raise and to be pay unto they  several and respective immediate after the decease of my wife so that it be a  gift immediate to the daughter though not indeed to be raise till after the  death of the testator wife the time mention in the will be not annex to the  substance of the legacy but to the payment of it and consequent if this have  be a legacy Chargeable upon the personal estate it will have be clear a vest  one and the plaintiff entitle to it but this be Chargeable upon the real it  must be own that it be equal a establish rule that where a legacy be give of  this sort though the time mention in the will be annex to the payment of it  and not to the body and substance of the legacy yet in general such legacy  shall not be raise where the legatee die before the time of payment and this  be so more especial where a legacy of that sort be give by way of portion but  notwithstanding this be the general rule yet the principal ingredient which  have give rise to this doctrine have be that the neglect the payment of the  legacy have appear to have arise from circumstance on the part of the legatee  as her attain the age of or marriage there if the legatee have die before the  time of payment of the legacy this court which favour the real estate have  consider it in this light that there be no occasion it shall be raise the  party die who be in the immediate contemplation of the testator but where the  neglect the time of payment of a legacy have be owe to the circumstance of the  testator estate and not to the circumstance of the legatee this principle have  be acknowledge by the follow case butler v Duncombe p W PiIfields case p W  Hutchins v foy Com Rep emes v Hancock post Sherman v Collins post vol Hodgson  v Rawson Ves jeal v Tickener Amb bro Charles Rep SC Tunstall v Bracken Amb bro  Charles Rep SC Dawson v killet bro Charles Rep clarke v Ross bro Charles Rep  note Kemp v dry bro Charles Rep note Godwin v Monday bro Charles Rep Pawsey v  Edgar ibidem Thompson v dow ibidem Morgan v gardener ibidem Dodson v hay bro  Charles Rep smith v partridge Amb that be not so strong a atkins case to  favour the legacys sink into the estate as the other be though his lordship  say he do not know but that the case have go so far as even there in some  instance to allow of their sink into the estate it have be determine that  where a legacy charge upon land depend upon two contingency and one of they do  not happen the legacy shall be raise the case of king and wither Prec in Ch  however in the present case it be clear upon the pen of the will that the  intention of the testator be that the legacy in question shall be raise in  favour of the plaintiff here pound be give to each of the daughter with  interest to be compute from the death of the testator wife no argument can be  draw from the circumstance relate to the interest for it be natural to give a  direction about that in the manner it have be do but then the will go on and  direct that this legacy shall be pay to the daughter or to their respective  executor administrator and assign and something may be infer from thence in  favour of the plaintiff it have be say that the use of this clause may be only  to show the testator intention that if the daughter survive the mother and  afterward die the legacy shall be pay to their representative but if that be  the meaning of the testator the insert this clause be very unnecessary for if  the daughter survive the way atkins er p mother there can be no doubt but that  the representative of they will be entitle to the legacy of course the use of  this clause seem rather to show the testator intention that if the daughter  die in the lifetime of their mother and after the testator death that the  legacy shall be pay to their representative but his lordship say he do not  test his opinion upon this clause in the will the clause that he find himself  principal upon be the follow and my further will be that in case either of my  say daughter shall depart this life before I then the survivor of ray say  daughter her executor administrator and assign shall have and receive all and  every the sum and sum of money hereinbefore by I devise out of my say land to  be raise in the manner herein before appoint and in such case the part of the  daughter so die shall not cease or sink into the estate for the benefit of my  heir but shall remain and be raise for the benefit of my daughter atkins it  have be say that the contingency upon which this clause of the will be to take  effect have not happen but it be plain that the testator have in his view a  certain case wherein the legacy shall not sink into the estate that case be  the event of either of the daughter die in the lifetime of the testator and if  even in that case the testator design that the legacy shall not sink into the  estate a much strong reason be there to infer that lie aid not design it shall  when the daughter survive he this clause be a plain indication of the testator  design that the daughter shall have this legacy at all event and that it shall  not depend upon the accident of their die in the lifetime of their mother it  have be say that if the testator have be ask at the time of make his will  whether in such a event as have happen he will have the pound legacy raise for  the plaintiff he certain will have answer that he will not but such manner of  argue by ask a question of this sort be a very uncertain one those that make  the question answer it themselves and give such a answer as seem for their  purpose but if this question have in reality be ask the testator his lordship  say he shall have think it much more probable that under the circumstance of  the present case the testator will have answer that his meaning be that the  plaintiff shall have this legacy the plaintiff marry this lady in she do not  die till and it will be a reasonable thing in itself that under such  circumstance the testator shall intend that the plaintiff shall have this  legacy and Lord chancellor decree the pound shall be raise for the plaintiff  out of the estate charge with it Reg lib b fol Lowther versus give June this  cause be bring on again by the defendant on a petition of rehear when the  attorney general of counsel for he cite the follow case paulet versus paulet  vent on a settlement hall versus terry see my saint vol of Rep m t before Lord  Hardwicke Bradley versus Powell before Lord Talbot may on a settlement butler  versus Duncomb vern brown versus Berkley m t duke of chandos versus Talbot  will prowess versus Abingdon see my saint vol of Rep the case cite for the  plaintiff be king versus wither Prec in Chan Eq can Abr Bruin versus Bruin  vern PiIfields case will Wilson versus Spencer before Lord king assist by sir  Joseph Jekyll Atkins atkins er p versus hiccock July see my saint vol of Rep  carter versus Bletsoe vern the case of Bradley versus Powell can tempt Talb SC  in the case of Tunstall v Bracken Amb bro Charles Rep S c Lord Hardwicke  express his disapprobation of this case of Bradley v Powell be much rely upon  by the defendant counsel be state more full and be as follow atkins John  Powell tenant for life remainder to Henry his old son in tail by recovery c  settle the estate to the use of John the father for life as to part remainder  to trustee for year upon trust to raise pound pound for Richard the second son  to be pay he within six year after the death of John or as soon after as the  same can be raise and in the mean time interest from the death of John the  father for and towards his maintenance remainder to Henry the old son for life  remainder to his first and other son in tail Richard the second son attain his  age of and die in the life of his father great in debt and leave no asset two  year after John the father die and upon his death pound per and come to Henry  and after his death to his son the defendant a bill be bring by the creditor  of Richard to have the pound pound raise Lord Talbot declare Richard be to be  consider as a purchaser under the recovery and settlement of the pound pound  but however say he this case differ from king versus wither and brown versus  Berkley for there marriage one of the contingency happen but here the pound  pound be limit to be pay to Richard within six year after his father death  without any other limitation and he die in his father S lifetime the  contingency have never happen and the portion must therefore sink for the  benefit of the owner of the real estate and so dismiss the bill vide Cas in Eq  in Lord Talbot time Lord chancellor the present case seem to I to be bring on  again rather for learning sake and to refresh the memory of the court than for  any real service to the defendant for my own part I have no doubt at the first  hear and I think there be as little room for it here as in any case whatever  as to the general rule with regard to portion to be raise out of land it have  certain be establish ever since paulet versus paulet that where there be a  portion to be raise out of land if the person die before the day of payment  come it sink for the benefit of the heir and determine on this reason that the  child do not want the portion and therefore shall not burden the inheritance  see prowse v Abingdon ante vol and the case cite in note there atkins there be  several subsequent case where there have be determination against some of the  distinction in paulet v paulet as for instance there may be a reasonable  distinction make between a time of payment that appear to have be derive from  the circumstance of the person and where it have be derive from the  circumstance of the fund and this be the strong reason Lord Harcourt introduce  in his argument on the case of king versus wither as case of this sort must be  leave to the discretion of the court who be govern by prudential reason and  particular circumstance it be not to be wonder at that there shall not be one  certain and invariable rule the father here have postpone the raise of the sum  of pound apiece to his daughter till after his wife decease and for this  reason because it do not suit the circumstance of his estate that it shall be  raise before smith v partridge Amb ante the intention of the testator be show  most strong in the clause where he give the whole to the survive daughter  Videathe clause in the first part of this case the testator may know that if  the legatee die in his lifetime it will lapse but he may not know the rule of  this court in another respect and I believe there may be several commonlawyers  who do not attend here that possible may not know that if it be charge on land  wit will sink in the inheritance if the person die before the time of payment  it be a most absurd supposition that if both daughter shall die in the mother  lifetime though they have live to be fifty year old that the portion shall not  be raise and yet if one only survive the father that daughter shall have the  whole in short the manner in which this clause be word show the intention of  the testator extreme plain and as there be so clear a indication of his  intention I may and ought to lie hold of a strong reason to be draw from the  word executor atkins er p administrator and assign immediate precede the  clause of survivorship but see Maybank v brook bro Charles Rep Hutcheson v  Hammond bro Charles Rep for his meaning be that in case the daughter shall die  before the portion be raise that the executor shall be entitle to have theS  raise off the estate it be circumstance as I say before must govern in case of  this nature and here be very strong one lady Lowther be marry sixteen year  survive herfather twenty and die but a year before her mother and because of  this accident of the mother survive it be insist that I be to adhere to  strictrules and not suffer the portion to be raise this must sound very odd in  a court of equity atkins there be no doubt if a bind have be enter into by Mr  give on condition to pay pound to his daughter after the death of his wife but  it will have be forfeit if the father executor have refuse to pay after the  wife death notwithstanding she survive the daughter in the case of bruen v  bruen vern note in case in equity abridge it be mention that the daughter  diedwithin the year though not take notice of in Mr Vernon report of bruen  versus bruen where the portion be to come out of land though there be no time  of payment fix yet the child die at five year old the court will not raise it  so that by this case it be plain that equity do not always keep to strict rule  for when no time of payment be fix a legacy in general be hold to be pay  immediate and yet the court then deviate from the general rule by decree it  not to be raise because the child die so young that the end for which it be  give cease on the whole I think the intention be extreme clear under this will  that the portion shall be raise and that the neglect the time of payment be  only for the convenience of the estate because it will have distress the son  to have raise it in the mother lifetime before her jointure fall in the former  decree be affirm Reg lib b fol