case mary west and another Appellants mary ERISEY and another Respondents that  February Mews dig seven twelve xiv wh t l c id by marriage article land be  agree to be settle on the 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 husband by any other wife remainder to the heir female of the body of the  husband by this wife a settlement be make before marriage and express to be in  pursuance of the article whereby the land be limit to the husband for life  sans waste and with power to make lease remainder to the first and other son  of the marriage in tail male remainder to the first and other son of any other  marriage in tail male remainder to the heir of the body of the husband there  be issue of this marriage only one daughter who die in her father lifetime  leave issue two daughter the husband have survive his wife suffer a recovery  and by his will devise the premise to his sister hold that the granddaughter  be entitle to the premise and the devisee be decree to convey to they accord  wms west v Errissey comens Rep viner vol p can can Eq ab can forester fearne  contingent remainder by article of agreement date the d of December between  sir Peter brown er p killigrew of the one part and James Erisey esquire and  Richard Erisey his nephew of the other part in consideration of a marriage  then intend between Richard Erisey and Frances killigrew daughter of sir Peter  it be agree that sir brown Peter shall pay for the portion of his daughter  pound videlicet pound part thereof to James Erisey and the other pound to be  dispose of in a purchase of land or lease of pound per and for the use of  Richard Erisey for his life remainder to Frances during her life in part of  her jointure and after her death to the heir executor or administrator of  Richard And James Erisey agree to settle in hand a estate of pound per and in  conventionary rend upon Richard and his heir with liberty to set and let for  three life which estate be to be to the use of Frances for her life with like  liberty to set and let for these life if she shall not survive James Erisey  and mary his wife and if she do survive they then after their death she be to  have the Barton of Clahar in the county of Cornwall and the Barton of Loworthy  in the county of Devon together with the land to be purchase with the pound  for her full jointure and then the land of pound per and be to be and remain  to the heir of the body of Richard Erisey and then to descend as the other  land after mentioned And James Erisey agree to make a settlement of all his  freehold land except the conventionary rend of pound per and to be settle as  above in manner follow videlicet to the use of himself for life without  impeachment of waste and with power to grant lease determinable upon life or  for year outright and after his death as to several part of these land  particular mention in the article to the use of mary his wife for her life  with liberty to grant lease for year determinable on one two or three life or  for year outright of part of the same premise and after the death of James  Erisey as to the other land not limit to mary nor to Richard and Frances for  their life respective the same shall be to the use of Richard for his life  without impeachment of waste and after the death of James and mary his wife  the premise limit to mary shall likewise be to the use of Richard for his life  without impeachment of waste and to his heir male to be beget on the body of  Frances and in default of such issue male then to the heir male of Richard to  be beget on the body of any other wife and in default of such issue male then  to the heir female of Richard lawful to be beget with other remainder over And  it be agree that Richard Erisey shall have liberty to make lease of his estate  for year determinable on one two or three life or for year outright And he be  also to be at liberty to nominate counsel for settle the estate and jointure  aforesaid and sir Peter killigrew to advice with his counsel that the same may  be effectual in law by indenture of lease and release date the d and that of  march between James Erisey of the first part Hugh Boscawen and Arthur  fortesque esqrs of the second part and Richard Erisey of the three part the  say James in consideration of love and affection for mary his wife and for  confirm her former jointure and settle a additional jointure upon her and also  in consideration of love and affection for Richard and for settle and entail  the manor and land after mention in the brown name and blood of the say James  Erisey and in pursuance and performance of his part of the above article do  grant and release to the say Hugh Boscawen and Arthur fortescue and their heir  the manor capital message Barton farm and demesne land of Erisey in the county  of Cornwall and several other land and hereditament therein particular mention  in the county of Cornwall and Devon to the use of himself for life without  impeachment of waste remainder as to part of the premise to the use of mary  his wife for her life for her jointure and as those respective estate shall  determine to the use of Richard Erisey for his life without impeachment of  waste remainder to the use of the first and other son of Richard by Frances  killigrew in tail male successive remainder to the use of the first and other  son of Richard by any other wife in tail male successive remainder to the use  of the heir of the body of Richard by the say Frances remainder to the use of  the heir of the body of Richard Erisey with other remainder over With power  for James Erisey mary Erisey and Richard Erisey successive to make lease for  life or year in manner therein mention and a power for Richard after the death  of James and mary his wife to limit certain part of brown er p the estate to  any other wife in case of failure of issue of this marriage or to charge the  same with a annuity of pound per and for the life of such wife or wife that  part of the deed wherein this latter power be write appear to be very much  raze three line part of the power be write upon the razure and the rest of the  razure contain four line and a half be fill up with several small stroke or  line and therefore upon the execution of this deed the follow word be write on  the back of it videlicet memorandum that by the mutual consent and agreement  of all the party within name the razure and amendment in the last sheet be  make and fill up in that particular which limit the power of Richard Erisey to  lease or charge the Barton and demesne land of Erisey with any jointure of  yearly payment and then seal and deliver in the presence of Peter killigrew  George killigrew John Harris Francis Heyme and by other indenture of lease and  release date the that and that of march between James Erisey of the first part  sir Peter killigrew and Arthur fortescue of the second part and Richard Erisey  of the three part the say James Erisey for the like consideration as be  mention in the other settlement and in pursuance and performance of his part  of the article do grant and release unto sir Peter killigrew and Arthur  fortescue and their heir the several manor land and hereditament therein  particular mention in the county of Cornwall to the use of Richard Erisey  after the marriage for his life without impeachment of waste remainder to the  use of Frances killigrew for her life if James Erisey and mary his wife or  either of they shall so long live remainder to the use of the first and other  son of Richard by Frances in tail male successive remainder to the use of the  first and other son of Richard by any other wife successive in tail male  remainder to the heir of the body of Richard by Frances remainder to the heir  of the body of Richard with such other remainder over as in the other  settlement with a power for Richard Erisey and Frances his wife and the heir  brown male of their body and other person in remainder be in possession to  make lease for one two or three life reserve the old accustom rend on the that  of the same month sir Peter killigrew write the follow letter to Richard  Erisey sir I find that it be absolute necessary to have the great settlement  copy out and sign and seal by your uncle and yourself before your marriage to  remain in my hand as be reasonable and that there may be at least one of those  write without any razures and memorandum Mr draper tell I you may make twenty  of these write original if they bear all the same date I send my servant on  purpose to desire you to bring the write with you if we shall have your  company this Monday or else to deliver it to the bearer that I may have it  copy this week by Mr draper son and on easter Monday God Willing I and my son  will dine at Erisey in our way to Clowance and your uncle and you may sign and  seal this write leave the other in your hand my wife desire the wedding may be  on the that of April I be ever your affectionate servant and cousin Peter  killigrew the marriage between Richard Erisey and Frances killigrew soon  afterward take effect and thereupon pound part of the pound be pay to James  Erisey but the pound residue be never pay either to James or Richard sir Peter  Killegrow however give his bind for it to Richard Erisey which be afterward  assign by he for the benefit of his wife Frances in November James Erisey die  and in January Richard prevail with mary the widow of James to surrender her  jointure estate to he there be no trustee in either of the settlement to  preserve contingent estate as usual in case of the like kind Richard Erisey in  easter term suffer two common recovery of the premise and by deed declare the  use thereof to he and his heir he afterward sell several part of the estate to  the value of pound and upward and by indenture of lease and release date the  that and that of February he convey the residue to Samuel trefusis John worth  and Thomas Hearle esqrs and their heir in trust for himself for brown er p his  life and after his death to and for such use and purpose as he shall by his  last will or other instrument under his band and seal attest by two or more  witness appoint and in default thereof to the use of his right heir Richard  Erisey have no issue male by Frances his wife and only one daughter name mary  who be bear before the recovery be suffer she afterward marry John west and  they have issue the appellant their only child mary the mother die in January  on the that of December Richard Erisey make his will and thereby give to the  appellant his grand daughter pound to be divide between they in lieu of  mourning to be pay at the end of calendar month after his death if they shall  be then brown live provide that no trouble in law or equity shall be give to  his executrix by any person whatsoever he give to the appellant Frances west  if she shall outlive her grandmother the testator wife and the say John west  her father pound per and for her life the first payment to be make at the end  of the year after their decease provide no trouble in law or equity shall be  give to his executrix he also give to the appellant Frances all his right  title and interest to a bind of sir Peter killigrews for pound then in the  possession of Frances his wife for the enjoyment of the yearly interest  thereof for her maintenance but if any trouble in law or equity shall be give  to his executrix he give all his interest in this bind to her he then give the  residue of the estate which remain unsold to the respondent mary Erisey his  sister and her heir except a small tenement parcel thereof in trust for the  respondent Thomas barrable and make the respondent mary Erisey sole executrix  of his will and give her all his personal estate in the month of January  follow Richard Erisey die and leave a personal estate to the value of pound  and upward all or the great part whereof be acquire by sale of several part of  the settle estate whereupon the respondent mary Erisey enter on the real  estate which remain unsold except what be in jointure to the say Frances  Erisey and possess herself of all the testator personal estate in September  the appellant who be the only daughter and issue of mary west who be the only  daughter and issue of Richard Erisey by Frances his wife exhibit their bill in  the court of exchequer against the respondent and Thomas Hearle and John worth  the survive trustee insist that it be the intent of the marriage article and  of the party thereto that the estate in question shall be settle in strict  settlement videlicet to the use of the say Richard Erisey for his life without  impeachment of waste with the usual and common provision to preserve  contingent remainder and then to the use of the first and other son of the say  Richard by the say Frances in tail male successive remainder to the first and  other son of the say Richard by any other wife in tail male successive  remainder to the daughter of the say Richard by the say Frances in tail  general and that it shall not be in the power of Richard to bar either the son  or daughter of the marriage by fine common recovery or otherwise that the  limitation in the two settlement under which Richard Erisey by construction of  law become tenant in tail and the omission therein of trustee to preserve  contingent estate proceed from the mistake or carelessness of the counsel who  draw the same and not from any agreement or intent of the party to vary the  term of the marriage article for that the settlement be express mention to be  make in pursuance and performance of the say marriage article that the party  do not come to any new agreement to vary the term thereof and therefore the  appellant who be in the nature of purchaser in consideration of their  grandmother marriage and marriage brown portion pray that the respondent mary  Erisey as a volunteer under the will of Richard may execute a settlement  pursuant to the intent of the marriage article and make satisfaction for the  land sell by Richard Erisey out of his personal estate who take advantage of  the mistake in the settlement and suffer the recovery to bar the issue of the  marriage contrary to the intent of the article to this bill the respondent put  in a plea and answer and plead the marriage article the two settlement the  common recovery suffer by Richard Erisey the deed to declare the use thereof  and the devise by his will to the respondent brown er p mary Erisey of the  estate which remain unsold in bar of the relief seek by the bill and by their  answer deny that they ever pretend that the party come to any new agreement to  vary from the term of the marriage article upon argue this plea on the saint  of may before the Lord chief baron Gilbert and the rest of the baron they all  deliver their opinion seriatim that accord to the marriage article the estate  in question ought to be settle in strict settlement and that the two  settlement have vary from the article the same be not a execution thereof and  therefore order that the plea shall stand for a answer with liberty to except  the appellant have no occasion for a further answer reply and witness be  examine on both side the cause be hear on the that that and that of December  when the court be please to dismiss the appellant bill without cost from this  decree of dismission the present appeal be bring and on behalf of the  appellant it be argue p York c Talbot that by the marriage article it be  express stipulate that the estate shall be limit to Richard Erisey for his  life without impeachment of waste and that he shall have power to make lease  which be a plain evidence of the intent of the party that the estate shall be  settle in strict settlement and that Richard shall be only tenant for life and  have no power to bar either his son or daughter by fine or recovery that the  settlement take notice of the article and be express mention to be make in  pursuance and performance thereof which word be a evidence that the party do  not intend to vary or depart from the word of the article nor have come to any  new agreement for that purpose and it be apprehend that the limitation in the  settlement under which Richard Erisey by construction of law become tenant in  tail 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 and of this mistake or neglect the omission of the common limitation  to trustee to preserve contingent estate be a manifest proof that the  respondent be a volunteer under the will of Richard Erisey who take advantage  of the mistake in the settlement and suffer a common recovery to bar his issue  although mary be then live which be apprehend to be a breach of trust in he it  be object that brown though court of equity have in like case decree a  execution of marriage article in strict settlement in favour of son yet they  have not extend it in favour of daughter who be most common provide for by a  term of year to raise portion for they in case of failure of issue male but to  this it may be answer that the reason seem to be as strong that the expression  of heir female of the body contradistinguish from son in marriage article  shall have the same construction in favour of daughter as the expression of  heir male in favour of son that in the present case both be under the  contemplation of the party because there be no other provision for daughter  beside the limitation intend for they by the article and accord to the common  course where provision be make for daughter by a term of year it be always so  limit as to be out of the father power to bar it it be further object that the  settlement be make before the marriage it must be presume that the party come  to a now agreement to vary the term of the article and that the settlement be  make to the satisfaction of sir Peter killigrew he be a witness to the one and  a party to the other to this it be answer that the settlement be not only  express mention to be in pursuance and performance of the article but the  appellant have charge by their bill that the party come to no new agreement  after the date of the article to vary the term of they the respondent Erisey  by her answer admit that she never set up a pretence of any such new agreement  and as to sir Peter killigrews be a witness to one settlement and a party to  the other he as most gentleman in like case do rely upon his counsel in frame  the settlement so as to answer the intent of the article he himself be a  stranger to the form and method of so do as to the objection that after such a  length of time and a acquiescence under the settlement the appellant ought not  now to resort to the marriage article it be say that the appellant be infant  that their title do not accrue until the death of Richard Erisey their  grandfather in January and brown er p that they file their bill for relief  within a short time afterward and as to a four objection that if the marriage  article shall be allow to control and vary the settlement it will affect the  purchaser under Richard Erisey it be answer that the appellant have not bring  their bill against any purchaser but as to those part of the estate which be  sell by Richard they only pray to have a satisfaction for the same out of his  personal estate which be principal acquire by mean of those sale and in breach  of trust beside by the condition which in his will he have 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 it be therefore hope that  the decree of dismission will be reverse and the appellant relieve agreeable  to the nature of their case brown on the other side it be contend t Lutwyche n  fazakerley that there be no precedent of a court of equity have interpose to  carry article into strict settlement in favour of heir female in any case and  much less in a case of this nature where part of the consideration of both the  settlement be the continuance of the name of the Eriseya which can not subsist  long in female and where the remainder limit to they be to commence after  failure of issue and of Richard Erisey by any other wife and consequent after  a estate tail in he which remainder be of no account in the law as be subject  to be every day bar by the tenant in tail in possession that the settlement be  both make before marriage and prepare by sir Peter killigrews own counsel and  the party have mature deliberate thereon as appear by the razure in the first  settlement and sir Peter letter it be evident that the party full agree to the  settlement as now make and if the same vary from the term of the article it  ought to be take as a new agreement and the article be carry into execution by  a settlement formal and deliberate make previous to the marriage the party  ought to be bind and govern thereby that the bill be not bring against James  Erisey who be to perform the covenant or against his heir at law but against  the respondent as devisee of Richard who do not appear to be nor be the heir  to James whereas nothing move front Richard he be to take such estate and  interest only and in such manner as James think fit to settle upon he that it  will be dangerous to the purchaser of the several estate sell by Richard  Erisey if by the two common recovery he can not bar the estate tail and  remainder for the purchaser can not purchase but under and with notice of the  two settlement they be his only title and it be say in both of they that they  be make in pursuance and performance of the article the purchaser must  consequent have have notice of those article that the decree contend for by  the appellant may shake very many settlement make even before marriage where  there happen to be any variation from the article though such variation real  proceed from a new agreement between the party which after some distance of  time it may be very difficult to prove and as to the omission of trustee to  preserve the contingent remainder it be very difficult to account for a very  omission in the limitation of a settlement and especial at so great a distance  of time but as to this omission there have no inconvenience ensue and though  the intention have be to secure a estate tail to the son it do not follow that  it shall be so for the daughter neither be it so usual to settle a estate in  strict settlement upon daughter as upon son nor do it appear to be the  intention of the party in this case but rather the contrary from the different  manner of word the limitation in the settlement and therefore it be hope that  the decree will be affirm and the appeal dismiss with cost but after hear  counsel on this appeal it be order and adjudge that the decree therein  complain of shall be brown reverse and it be further order and adjudge that  the defendant worth and Hearle and the respondent mary Erisey shall convey  such of the land contain in the marriage article of the d of December as be  convey to the say worth and Hearle and Samuel trefusis esquire decease and  their heir by the deed of the that and that of February and have not be sell  to the appellant mary brown er p and Frances west and to the heir of their  body as tenant in common with cross remainder to each of they and the heir of  their body respective remainder over to the other use limit in the say  marriage article after the limitation to the heir female of the say Richard  Erisey lawful beget and that the respondent mary Erisey and Thomas barrable  shall several account for the rend and profit of the say land grow due since  the death of Richard Erisey and which have several come to their hand wherein  they be to have all just allowance and to be examine upon interroigatories as  the court of exchequer shall direct and after such account take shall several  pay what shall be find due from they respective to the appellant and that they  shall several deliver possession of the say land to the appellant and bring  into the court of exchequer all deed evidence and write in their several  custody power or possession relate to the title of the say land or of any of  they to be dispose of as the say court shall direct and it be further order  and adjudge that the court of exchequer shall cause a account to be take of  all the land contain in the say marriage article sell by Richard Erisey and  the purchase money for which they be sell and compute interest for the  purchase money from the death of Richard Erisey and that the respondent mary  Erisey as the executrix of the say Richard Erisey shall pay and satisfy the  say purchase money and interest out of the asset of the say Richard Erisey  come to her hand and if she shall not admit asset then a account be to be take  of asset wherein she be to have all just allowance and be examine upon  interrogatory and produce all book paper and write relate to the testator  estate as the court shall direct the say interest be to be pay to the  appellant and the say purchase money to be lie out in a purchase of land to be  settle to the same use as the land before mention and the court of exchequer  be to give all necessary and proper direction for the make this judgement  effectual jour vol p