brown case henry holms and other appellant John lysaght respondent d may Mews  dig three in re nurse Ch I S by his will bequeathe to his daughter Ann in  these word videlicet item I leave and bequeathe to my say daughter Ann pound  to be pay her on the day of her marriage or at the age of twentyone year which  shall first happen and in case my daughter Ann shall marry with the consent  and approbation of r S etcetera or any two of they I further leave and  bequeathe to my say daughter Ann the additional sum of pound more otherwise  not Ann marry without the consent require by the will and on a bill bring by  her and her husband for both these legacy it be hold that she be only entitle  to the first and have forfeit the second by not comply with the condition  require by her father will ground and rudiment of law and equity p can  Nicholas lysaght the father of the respondent and the appellant Ann and  several other child hear that the appellant Henry who he entertain at his  house as a relation be his wife nephew and a lieutenant of foot have be  private make his address to the appellant Ann in order to a marriage severe  rebuke her for admit the same and threaten if he find she encourage that  affair he will that instant turn her out of door and he at the same time  forbid the appellant Henry his house soon afterward Mr lysaght make his will  date the that of September and thereby devise the bulk of his real estate  which do not exceed pound per and to the respondent and make the next  immediate bequest to the appellant Ann in these word videlicet item I leave  and bequeathe to my say daughter Ann lysaght pound sterling to be pay to her  on the day of her marriage or at the age of twentyone year which shall first  happen and in case my daughter Ann shall marry with the consent and  approbation of Robert Oliver Esq Berkeley tailor Esq John croker Esq and my  say son John or any two of they I further leave and bequeathe to my say  daughter Ann the additional sum of pound more otherwise not and for her yearly  maintenance I leave and order pound sterling until her marriage or that she  attain to the age of year which shall first happen the testator then bequeathe  the like portion to his young daughter mary on the like condition which she  afterward perform and devise part of his real estate of about pound per and to  his young son Nicholas and Arthur with pecuniary legacy of pound to each of  they and after make several other bequest he order that the respondent shall  pay all his debt and legacy and the better to enable he to do so bequeathe to  he his personal estate amount to about pound and appoint the say Berkeley  tailor John croker and the respondent executor of his say will and by a  codicil thereto execute on the that of August he add the say Robert Oliver and  also Bartholomew purdon Esq as executor and in a day or two afterward die  whereupon the respondent sole prove the will brown the appellant Ann come of  age in January apply to the respondent for both the say sum of pound allege  she be entitle to the same though not marry but the respondent dispute this  matter with her and Henry rise Esq a barrister at law and a relation of the  family soon after come to the respondent house in the country where the  appellant Ann reside it be refer to he who give his opinion that she be then  entitle to the first pound and interest but not to the additional pound until  the condition precede the bequest thereof be perform notwithstanding this  opinion and the know aversion which the respondent have to a marriage between  his sister Ann and the appellant Henry and his have repeat refuse his consent  thereto yet they be private marry some time in the month of January and in  Michaelmas term they think proper to file their bill against the respondent in  the court of exchequer in Ireland allege brown er p that Nicholas lysaght the  father have devise to the appellant Ann pound that she attain her full age  before marriage that the respondent be inform by the appellant Ann in Dublin  of the appellant Henry make application to her for marriage seem to approve it  and soon after take a voyage to the isle of wight and prevail on the appellant  Ann to go with he where he know the appellant Henry then be or be soon expect  and that when he find the appellant affection engage and that his sister can  not with honour break off the match he refuse his consent That previous to the  marriage Mr Oliver have take advice on the clause in the will get a opinion  that it be only in terror and that he have send the appellant Ann a copy  thereof he thereby show his consent to the match and therefore the bill pray  that the respondent may account for the pound and interest and for the arrear  of maintenance the respondent by his answer to this bill deny that he ever  approve of the match but on the contrary express caution the appellant Ann  against it and which caution she promise to observe he also deny that he take  a voyage to the isle of wight as insinuate by the bill but go to London from  whence he carry the appellant Ann to the island at her own entreaty but deny  that he know or expect he shall meet the appellant Henry there he submit to  account with the appellant for the first pound and the arrear of maintenance  but insist that the appellant Ann can not be entitle to the additional pound  by reason of her marry without such consent as be require by the will on the d  of October the respondent exhibit a cross bill against the appellant for  discovery of the matter aforesaid to which they put in their answer admit that  the appellant Ann do not ask the respondent consent that be twice charge by  the respondent once in Dublin the second time in the isle of wight with  receive the appellant Henry address she deny the same that she apply before  her marriage to Mr Oliver brown and Mr tailor for their consent but do not  receive any answer from Oliver but be afterward tell by he he have write her a  answer which for ought she know be a denial of his consent witness have be  examine in the original cause and publication pass the same be hear on the d  and saint of June and on the that of February follow the Lord chief baron  declare that this case depend on the word of Nicholas Lysaghts will that as to  pound and the maintenance the court be of opinion that the appellant Ann be  entitle thereto but not to the additional pound for that be not to be pay her  unless she comply with the term and perform the condition prescribe by her  father will which she have not do that it appear she marry without the consent  of the trustee or any two of they and that the respondent do not appear to  have be guilty of any fraud in take the appellant Ann to the isle of wight and  therefore the court order that the appellant shall be pay the sum of pound  only together with the yearly maintenance provide for the appellant Ann by the  will of her father until her intermarriage with the appellant Henry and that  from and after her say marriage the appellant shall be pay the legal interest  of the say pound and as to the additional pound their bill be dismiss the  appellant apprehend this decree to be erroneous appeal from it insist c Talbot  d rider that the condition annex to the second legacy of pound be in restraint  of marriage and that condition of this nature be from public consideration  never favour but accord to the know rule and practice in court of equity be  hold to be in terror only and not to defeat a legacy give out of a personal  estate unless it be express give over to a three person upon a breach of the  condition but which in the present case it be not that in the case of legacy  out of personal estate there have be no distinction allow between condition  precedent and subsequent such distinction be unknown to the civil law by which  legacy which be proper cognisable in the spiritual court be to be determine  that in this case it be apprehend the condition be not intend to continue or  to suspend the legacy long than till the daughter attain her age of twentyone  which appear from the manner of pen the legacy the testator give her pound to  be pay her on the day of her marriage or age of twentyone year and then go on  immediate in the same sentence and if she marry with the consent therein  mention then pound more so that this be nothing more than annex a condition  brown er p to that marriage on which the first pound be Payable and as that  marriage be to be before twentyone so be that on which the second pound be  Payable but on her come of age it be her age and not her marriage which  entitle her to both that all the other executor except the respondent refuse  to act and thereby the condition of marry with the consent of they be in  effect render impossible which ought not to turn to the brown disadvantage of  the legatee since it be to no purpose to attempt to perform a condition which  by the act of the executor and trustee be make impracticable but if the  consent of two of the trustee shall be deem necessary to entitle the appellant  to the additional pound it be apprehend that the opinion send to the appellant  Ann by Mr Oliver one of the trustee and the respondent carry her to the house  of the appellant Henry father in the isle of wight where he well know the  appellant Henry then be amount to a consent on the part of the respondent and  especial since he himself be to take the benefit of the forfeiture and last  that the first pound be devise to the appellant Ann at her age of twentyone  and consequent shall carry legal interest from that time whereas interest be  only decree from her marriage which be a considerable time afterward on the  other side it be say p York t Lutwyche to be evident from the will that the  additional pound never vest in the appellant Ann because her right to this sum  be to arise upon her performance of a precedent condition corroborate by the  negative word otherwise not which condition against her own conviction of the  reasonableness of it and the repeat caution of the respondent she wilful break  that this additional sum of pound which be the voluntary gift of the testator  be not make Payable but upon her marry with consent and therefore the interest  of the respondent who be the legatee of the fund out of which this legacy be  prima fancy Payable ought not to be take from he and transfer to her that the  testator in his lifetime express his dislike to the match and in the strong  term forbid the appellant from comply with it and he actual have the prevent  of so unequal a match in contemplation at the time of make his will nor be the  circumstance of the appellant Henry in any way mend at the time of the  marriage that the appellant Ann have at all event a handsome provision leave  her at her own disposal far exceed what the appellant Henry can reasonable  expect and as she want but five month of twentyone when the testator die it  can not be suppose that the condition be intend to bind for that time and no  long that the pretend opinion procure by Mr Oliver for the appellant Ann and  at her instance be on the occasion of her demand the whole pound upon her come  of age at which time it be insist that the appellant Henry have not begin to  make his address to her but it be manifest that she well understand that this  transaction do not amount to a consent from Mr Oliver since she admit by her  answer to the crossbill that when she afterward intend to marry the appellant  Henry she write to Mr Oliver for his consent which for ought she know he  refuse on the day fix for hear counsel on this appeal the counsel for the  appellant acquaint the house that as the party be near relate a accommodation  of the matter in dispute have be treat of and compromise and that bind for  brown the performance of the agreement between they have be sign and seal and  that the appellant do submit if their lordship so please that the decree may  be affirm and the respondent counsel admit the matter so to be the agreement  be deliver in and read and it be thereupon order and adjudge that the appeal  shall be dismiss and the decree therein complain of affirm jour vol p brown er  p