brown case henry gorge and rob gorge his son appellant Charles pie respondent  that march Mews dig xiv trustee in a will to support contingent remainder join  with the tenant for life in a conveyance whereby the contingent remainder be  destroy before they come in be this be a plain breach of trust and whoever  claim under such conveyance have notice of the trust shall be liable to make  good the estate decree of Lord keeper Harcourt affirm this point be more  precise determine in the case of Mansell v Mansell p wms in which it be  express and solemnly decree by Lord chancellor king assist by Lord chief  justice Raymond and Lord chief baron Reynolds that trustee appoint for support  contingent remainder be guilty of a breach of trust in join to destroy they  and that it make no difference whether the settlement by which the trustee be  appoint be voluntary or for a valuable consideration or by will only with  respect to the remedy in such case it be declare that if the person claim  under the breach of trust have notice of it then they be subject to the same  trust as also if the conveyance by the trustee be voluntary or without a  valuable consideration but if it be for a valuable consideration and without  notice the purchaser shall hold the land discharge and the trustee must buy  and settle other land to the same use but it seem that a distant contingent  remainderman have no right to call trustee to a account for such breach of  trust during the life of tenant for life else v Osborn I p wms in certain case  however as for payment of debt and some few other instance a court of equity  will exercise its discretion by direct trustee to join in destroy contingent  remainder but this be do with great caution and it be unsafe in any case for a  trustee so to do without the direction of a court of equity see Busset v  Clapham p wms and Mr Cox note there as also on the case of Mansell v Mansell  above cite wms salk prece in Chan Eq can ab e can viner vol p can sir Walter  pie be seize of several manor and land in Herefordshire by deed date the that  of march make a voluntary settlement of the manor of Kilpec Orcop and other  estate of about pound per and to the use of himself for life remainder to the  heir of his body remainder to his own right heir but subject to a proviso that  he may by any write or by his will charge the estate so settle with the  payment of his debt and in default thereof that then the use and trust of all  the say estate shall be to trustee for year after his death upon trust for the  payment of his debt out of the rend and profit during that term sir Walter  have two son namely Walter and Robert and have afterward occasion to borrow  money he in the year and levy several fine and make several mortgage of  different part of his estate and by virtue thereof become seize in fee or of  the equity of redemption of the premise comprise in those fine and mortgage on  the d of October sir Walter pie make his will and thereby devise all the manor  land tenement and brown hereditament whereof he or any in trust for he or for  his use stand seize except Kingston farm which he devise to his son Robert in  fee to Walter his old son for year if he shall so long live remainder to  trustee to preserve the contingent remainder remainder to the first and other  son of Walter successive in tail male remainder to other trustee for a term of  year for raise pound for the portion of Walter daughter remainder to his say  son Robert for year if he shall so long live remainder to trustee to preserve  the contingent remainder remainder to the first and other son of Robert  successive in tail male remainder to other trustee for a term of year for  raise brown er p a like sum of pound for the portion of Robert daughter  remainder to John pie the testator brother and grandfather of the respondent  for year if he shall so long live remainder to trustee to preserve the  contingent remainder remainder to his first and other son successive in tail  male with other remainder over and in this will be contain a power for the  testator son Walter to make a jointure upon a wife not exceed pound per and  and for his other son Robert after the death of Walter without issue male to  make a jointure upon a wife not exceed pound per anm and a declaration that  the estate so devise shall be liable to the mortgage and debt of the testator  the testator soon afterward die leave dame mary his widow to who in he have  make a jointure of pound per and and the estate be also subject to some  mortgage and other debt of his whereupon Walter the son enter on all the  estate not in jointure to dame mary and enjoy the same for some time in  November a treaty of marriage be set on foot between Robert pie and mary the  daughter of sir Edmund bray and in order to enable Robert to make a settlement  on that marriage the several mortgage in fee make by sir Walter be pay off by  Robert to the amount of pound and thereupon the premise comprise in those  mortgage be convey to trustee and their heir to the use of the say Robert and  mary for their life successive with remainder to the first and other son of  that marriage in tail male with remainder in fee to Robert and his heir and in  these conveyance both Walter and Robert join and the will of sir Walter be  therein particular recite beside these deed Walter and the trustee name in his  father will as well those for preserve contingent remainder as those for raise  portion for Walter daughter convey their interest during the life of Walter  and also the term for raise the portion to new trustee and a fine be afterward  levy by Walter and the new trustee whereby the estate of Walter and his issue  be intend to be bar and extinguish notwithstanding these conveyance Robert by  a deed poll date the saint of July settle a jointure upon the say mary brown  his intend wife in pursuance of the power contain in sir Walter will but doubt  afterward arise whether this jointure will be good as Walter his elder brother  be still live Robert by another deed of the that of the same month recite the  say several conveyance and deed poll and the doubt respect the validity of the  jointure assign a church lease to trustee as a security to indemnify mary  against her be evict of any part of the premise so settle upon her in jointure  by this marriage Robert have issue only one daughter who together with her  mother die in a few year afterward in Robert marry good the sister of sir  James Drax and upon this second marriage although his brother Walter be still  live he make the same settlement upon her and her issue by he as he have make  on his first marriage with the like notice and recital of sir Walter will by  this marriage Robert have issue only one daughter name Elizabeth who be  afterward the wife of the appellant Henry and mother of the appellant Robert  and on the that of January he die whereupon good his widow enter on the estate  on the that of march Walter the brother die without issue and the estate of he  and his brother Robert under sir Walter will be spend for want of issue male  the title of John pie sir Walter brother accrue who together with Edward his  son the respondent father and John Scudamour the survive trustee for preserve  contingent remainder in Trinity term exhibit their bill in the court of  chancery against good and Elizabeth the widow and daughter of Robert pie and  the trustee for raise the pound portion under sir Walter will offer to pay the  debt of sir Walter if any remain unpay and to secure the payment of Elizabeth  portion when it shall become due and therefore pray a conveyance of the  mortgage and trust estate and a account of the rend and profit thereof on the  that of January this cause be hear before the Lord chancellor summer when the  counsel on both side admit it to be a matter of intricacy and difficulty a  reference be make to the master to state the case upon the evidence but the  party never think proper to proceed upon this reference brown er p John pie  and Edward his son and good the widow of Robert be all dead the respondent in  easter term file his bill of revivor against the appellant Henry and Elizabeth  his wife and the trustee and the suit again abate by the death of Elizabeth be  revive against the other appellant Robert as her son and heir on the that of  November the cause be hear by the Lord keeper Harcourt when the court declare  that as to the land comprise in the deed of the use of that deed be not revoke  by the will and that what brown land be comprise in the deed of march and not  include in the several fine levy in and or any of they they likewise do not  pass by the will but as to such land as be comprise within any of the say fine  and of which sir Walter or any in trust for he or for his use be seize in  feesimple at the time of his death or of which he be entitle to the equity of  redemption those land and the equity of redemption do pass by sir Walter will  and that the plaintiff be well entitle to the equity of redemption thereof on  discharge the encumbrance and to have a account of the rend and profit front  the time of sir Walter death and that the rend and profit of the land comprise  in the deed of march be liable to the payment of the debt of sir Walter during  the term of year from his death and decree the same accord and it be refer to  the master to take a account of the debt and encumbrance at the time of sir  Walter death and what part thereof have be pay by Robert or Walter his son  also what remain unsatisfy at the time of the death of Walter and have be  since pay either by good the widow of Robert or by the defendant Henry in  order that it may appear what part of the debt and encumbrance have be pay and  satisfy by and out of the rend and profit of the estate subject thereto and  the master be also to take a account of the rend and profit of the devise  estate receive by Robert and Walter pie during their respective life and what  shall appear to have be receive by they or either of they be to be apply in  keep down the interest of the mortgage and other encumbrance during their  respective life so far as such rend and profit will extend the master be  likewise to take a account of the rend and profit of the land comprise in the  deed of march which for year after sir Walter death have be receive by the say  Robert and Walter or either of they and those rend and profit be to be apply  in discharge of sir Walter debt accord to that deed a account be also to be  take of the whole rend and profit of the land which pass by the will and have  be receive by good or the defendant Henry and what shall appear to have be so  receive be to be apply in sink the interest and then the principal of such of  sir Walter debt as remain unsatisfy at the death of Walter his son and to  which the defendant Henry be any way entitle and after satisfaction of these  debt then to be apply in payment of the pound portion of Elizabeth the  defendant Henry late wife with interest for the same from the time of their  marriage from this decree the defendant Henry and his son Robert appeal insist  e Northey r Raymond that it be impossible to take a regular account of the  rend and profit of the premise and of the payment of debt and encumbrance for  a period of above year which have elapse since sir Walter pie death and after  the death of brown so many person who be in possession and have pay those debt  and encumbrance that though the rend and profit so to be account for be only  to be apply in keep down the interest of the encumbrance and not in sink the  principal yet when it be consider that the annuity and other annual payment  out of the estate and the interest of the debt charge thereon do for nine year  after sir Walter death exceed the yearly value of the estate by at least pound  per and and for the next eleven year by pound per and the case be not at all  alter but the account must be take of the whole profit and of the debt that no  account ought to be take of the rend and profit of the land settle upon good  in jointure for Walter pie have extinguish his estate for life and with the  concurrence of his trustee by deed and fine bar himself and his issue of all  estate and interest in the premise his power to make a jointure upon a wife  cease and Robert estate and power to make a jointure arise that he accord make  such jointure on good by mature advice and for a valuable consideration and  she enjoy the same till her death and therefore it be hope that the appellant  ought not to account for the profit thereof that though sir Walter pie do by  his will make provision for the brown er p payment of his debt yet by the same  will he create a power in his son Walter to make a jointure of any part of the  estate not exceed pound per and and a like power in Robert to make a jointure  not exceed pound per and and it can not be think that he intend to subject  that jointure to the encumbrance for then it will have be of no value nor will  any woman of fortune have marry either Walter or Robert on make such a  jointure and in case money have not be raise by wife portion the debt will  have swallow up the estate and as sir Walter have by his will charge the  estate with the payment of his debt the term of year create by the deed of  march do not accord to the true meaning and construction of that deed arise  and therefore the decree ought not to have direct any account of the rend and  profit of the land comprise in that term on the other side it be argue t powys  S Cowper that what be do in upon Robert marriage with mary appear to be do  with full notice of sir Walter will it be recite in most of the conveyance  which be then execute and the counsel concern be conscious that the title  which Walter or Robert can make under that will be not to be rely upon do  therefore at the same time direct a conveyance to be take from the mortgagee  and make that also a settlement upon mary and her issue but be also sensible  that the title under the mortgage be a redeemable estate Robert soon afterward  under colour of the power in sir Walter will appoint his say wife a jointure  and at the same time make a collateral security in case she shall be evict of  the jointureland by brown the death of Walter and Robert without issue male  that the trustee in the will name for preserve the contingent remainder and  the trustee for raise portion for the daughter of Walter only convey to the  new trustee the estate and interest which they have during the life of Walter  and in the term of year for raise his daughter portion and it be Walter and  the new trustee only that afterward levy the fine and therefore the estate in  the old trustee for preserve the contingent remainder during the life of  Robert and John and to their respective issue male be not transfer or destroy  so that what these old trustee do be intend to bar Walter and his issue only  and not to bar or extinguish any of the estate limit to Robert or John or  their issue male and consequent can not operate against the respondent who  claim as issue male under John beside when this conveyance be make Robert and  John who be successive tenant for year if they so long live and Edward the son  of John who be tenant in tail be all alive but do no act to bar their estate  and therefore can not be bar by any act do by Walter or his trustee and all  these conveyance be make with full notice of sir Walter will and most of they  contain express recital of it the trustee for Walter must have appear to be  trustee also for preserve the other estate in remainder to John and his issue  male so that there be no ground to complain of the relief give to the  respondent by the present decree as to what be do upon the marriage of Robert  with good in that be also do with the like notice of sir Walter will under the  former conveyance from Walter and the mortgagee and in the same manner as the  former jointure and it be observable that notwithstanding all these  transaction the appellant Henry in right of his late wife actual claim the  provision make by sir Walter will for her portion of pound the appellant  therefore be sensible that their title be not sufficient attempt to support it  by allege that they and those under who they claim have be in possession for  year whereas for of those year videlicet from the death of sir Walter to the  death of Walter the son the possession have go under sir Walter will as of  right it ought to go and Walter die in the title of John the respondent  grandfather then accrue and not before who in Trinity term bring his bill to  redeem and establish his right as to the pretend impossibility of account for  the profit from sir Walter death it be answer that sir Walter have by his will  declare his estate liable to his mortgage and debt all who claim under that  will must take the estate subject to that encumbrance the decree therefore be  very favourable in not direct the whole profit which be far beyond the  interest to be account for during the life of Walter and Robert but only so  far as to keep down the interest whereby the whole burden of the principal be  throw upon the brown respondent inheritance so that the appellant bad no  reason to complain of the decree in this respect and much less respect the  account of the profit receive by brown er p good for it be very plain that  Robert have no power to make a jointure in the lifetime of his brother Walter  nor can Walter transfer or give any power to Robert which be not give he by  sir Walter will that good and her counsel be so sensible of this that she take  another conveyance from Robert under the title of the mortgage which be convey  to he and under that title only do she hold the land which she claim as a  jointure as therefore good come into possession under a mortgagetitle nothing  can be more just or be more constant the rule of a court of equity than that  she must be consider as a mortgagee in possession and that the profit of the  estate ought to be apply towards satisfaction of the debt due on those  mortgage under which she be in the actual receipt of the profit accord after  hear counsel on this appeal it be order and adjudge that the same shall be  dismiss and the decree therein complain of affirm and that the appellant Henry  shall pay the respondent pound for his cost jour vol p