case MALLOON against Fitzgerald follow do d Kenrick v beauclerk east if a  father settle his estate in trustee to the use of himself for life with  remainder in tail to ail only daughter provide she with the consent of the  trustee marry a person of the same family or a person who shall take upon he  the same name but if not then the trustee to raise a portion for the  maintenance of his daughter and the remainder in tail to go to another the  estatetail be not determine by the daughter marry without the consent of the  trustee a person not of the family and who do not take upon he the same name  although previous to the marriage she have notice of this settlement but not  from the trustee themselves for express notice be necessary where the ancestor  make a condition which go in restraint and abridgement of the estate of the  heir SC skin SC show SC I Eq Abr vent Mod lev raym Chan Rep lane Ch Cas    vezey atk Com dig condition l Bac Abr Bac Abr Mod error of a judgement in  Ireland for land in the county of Waterford the case upon the special verdict  be thus John Fitzgerald be seize in fee of the land in question he have issue  Katherine his only daughter he by lease and release make a settlement of those  land upon the earl of Ossory and other trustee name therein and their heir to  the use of himself for life and after his decease to the use of modern his  daughter Katherine in tail provide that she marry with the consent of the say  earl and the trustee or the major part of they or their heir some worthy  person of the family and name of Fitzgerald or who shall take upon he that  name immediate after the marriage but if not then the say earl shall appoint  and raise a portion out of the say land for the maintenance of the say  Katherine with a remainder to joy in tail John Fitzgerald die his daughter be  then but two year old she afterward at the age of fourteen have notice of this  settlement but not by the direction of the trustee on the that of march in the  sixteenth year of her age she marry with the plaintiff Edward villiers Esq  without the consent of the trustee or the major part of they and her husband  Mr villiers do not take upon he the name of Fitzgerald after the say marriage  joy the aunt be marry to franklin who likewise do not take upon he the name of  Fitzgerald the question be first whether the estate limit to Katherine be  forfeit without notice give to her of the settlement by the trustee themselves  second whether her estate be not determine by her marry Mr villiers without  their consent and it be argue that the estate tail be determine and first as  to the point of notice it be not necessary to be give to the daughter because  the father have not make it in the settlement he may dispose of his estate at  his pleasure and have make particular limitation of it there be no room now  for the law to interpose to supply the defect of notice in the deed and to  this purpose the mayor of London case be cite which be thus George monox  devise certain modern er p house in trust to his executor and their heir upon  condition to pay money to several charitable use which if not perform then he  devise they over to his heir in tail upon the same condition and if not  perform by he then to the mayor and commonalty of London the trust be not  perform by the first devisees a stranger enter and levy a fine with  proclamation and five year pass then the mayor of London bring his action  suppose he have a right of entry for the nonperformance of the trust but be  bar by the fine although it be argue for he that he have not notice of the  devise or breach of the trust till after the fine levy which show that notice  modern be not necessary for if it have be so when his title accrue he can not  have be bar by the fine the mayor of London v Alford cro car S c Jones it be  unanimous resolve that the limitation over to the mayor of London be void it  be a possibility upon a possibility but the question whether the want of  notice will aid be not say croak so unanimous resolve and sir William Jones  say express that upon this point the judge give no opinion see Fearne on con  Rem a as Katherine the daughter take notice what estate she have in the land  so as to pursue a proper remedy to recover it so she ought to take notice of  the limitation in the settlement and have the same mean to acquaint herself  with the one as with the other and the same likewise as her aunt have to know  the remainder suppose a promise be make to indemnify another from all bind  which he shall enter into for a three person and then a action be bring  against he wherein the plaintiff declare that he be bind accord and not save  harmless but do not show that he give notice of his be bind yet the plaintiff  shall recover cro James hob Jones Poph b as to the case of a copyholder have  three son who surrender to the use of his will and then devise to his middle  son in fee upon condition to pay legacy to his sister at full age which be not  pay although it be adjudge that his estate be not determine upon the  nonperformance of this condition without a actual demand and denial and that  he be not bind to take notice of the full age of his sister yet this be not a  authority which can anywise prevail in this case because it be a condition to  pay legacy which be a thing in its nature not to be pay without a demand which  imply notice Curteis v Wolverston cro James but if the devise have be to the  old son then it have be a limitation annex to his estate and not a condition  because if it have be a condition it will have descend upon the heir who can  not be sue for the breach note to the former edition c in all case where  condition be annex to estate to pay money there notice be necessary but where  estate be limit upon the performance of collateral act it be not necessary and  this have beer hold the constant difference so be the case of fry v porter Mod  vent Rep Chan Poph d which be this the earl of Newport have two daughter and  he devise Newport house to the daughter of his old daughter in tail which she  have by the earl of Banbury provide and upon condition that she marry with the  consent of her mother and two other trustee or the major part of they if not  or if she shall die without issue then he devise the say house to George  porter in fee who be the son of his young daughter and who have marry one  Thomas porter without her father consent the lady Ann knoll the first devisee  marry fry without the consent of her grandmother or trustee and it be adjudge  against her upon point of notice that it be not necessary because her  grandfather have not appoint any person to give notice he may have impose any  term or condition modern upon his own estate and all party concern have the  same mean to inform themselves of such condition the three resolution in  Frances case   a come near to this now in question it be in replevin the  defendant avow the take damage pheasant the plaintiff plead in bar to the  avowry that r Frances be seize in fee of the place where c and devise it to  John who be his old son for sixty year if he so long live remainder to Thomas  for life and that John make a lease to the plaintiff for a year modern er p  the defendant reply that after the devise r Frances make a feoff in fee of the  same land among other to the use of himself for life then as to the other land  to diverse use contain in the deed but as to those land in which the distress  be take to the same use as in the will in which conveyance there be this  proviso that if John shall disturb his executor in the quiet enjoyment c or if  he shall not suffer they to carry away the good in his house then the use  limit to he shall be void he do binder the executor to carry away the good yet  it be adjudge that he shall keep his estate because be a stranger to the feoff  he shall not lose it without notice of the proviso but in answer to that case  notice be not the principal matter of that judgement it turn upon a point in  plead for the avowant have not show any special act of disturbance and a bare  denial without do any more be hold to be no breach of the condition some other  authority may be cite to prove notice necessary as where tenant for life of a  manor to which a advowson be appendant do in the year present Durston who  neglect to read the article be deprive nine year afterward by the ordinary at  the suit of the patron who present he who also die two year after the  deprivation then the queen present by lapse who presentee be induct and six  year afterward Durston die after who death he in remainder present green now  though the patron be a party to the suit of deprivation and thereby have  sufficient notice that the church be vacant yet it be adjudge that a lapse  shall not incur but only after notice give by the ordinary himself and not by  any other person whatsoever green case   S c   Ent b but this case may receive  this answer videlicet that notice have not be necessary at law but it be  provide by a particular Act of parliament Elizabeth c c that no title by lapse  shall accrue upon any deprivation but after six month notice thereof give by  the ordinary himself to the patron modern it be true the law be very tender in  divest the right of the subject but where a estate be create by the act of the  party and restrain by particular limitation without any appointment of notice  there the law will not add notice and make it necessary because the person who  make such a disposition of his estate may have give it upon what condition he  please therefore it may seem hard that this estate shall be determine by the  neglect or omission of the trustee to give notice of this proviso but it be  apparent that it be the intent of the father it shall be so for by this  limitation the estate be bind in the hand of a infant the reason be because  there be a privity between a heir and a ancestor and therefore the heir be  bind to take notice of such condition which his ancestor have impose on the  estate second this estate be determine by the marriage of the daughter with Mr  villiers because there be a express limitation in the deed for that very  purpose she be enjoin to marry a Fitzgerald or one who shall take upon he that  name which be still more extensive and she have neglect to do the one and her  husband have refuse to do the other the aunt in remainder shall take advantage  of this nonperformance and it be this remainder over which make it a  limitation for if it have be a condition then the intent of the father have be  utter defeat vent Owen Goldsb Litt sect a for none but the heir at law can  enter for the breach of a condition and such be Katherine in this case the  proviso in this deed depend upon another sentence immediate go before to which  it have reference and then by the express resolution in cromwells case  Cromwell v Andrews   S c jenk S c and S c more S c Savil and   light b it be a  limitation or qualification of the estate and not a condition which estate be  now determine without entry or claim it be argue e contra that in this case  three thing be to be consider first the nature of the proviso second that  notice be absolute necessary three that the notice give be not sufficient be  not such as be require by law as to the first the very nature of this proviso  be condemned by the civil law and because it work the destruction of estate it  have never be favour at the modern er p commonlaw all condition to restrain  marriage general be hold void by both law so likewise be such which restrain  people from marry without the consent of particular person because they may  impose such hard term before they give their consent as modern may hinder the  marriage itself and therefore a bare request of such without their subsequent  assent have be always allow to preserve the estate second and which be the  principal point notice in this case be absolute necessary both by the intent  of the father and by the construction of the law there be three thing of which  the law make a equal interpretation videlicet use will and act of parliament  in which if the intention of the party and of the lawmaker can be discern the  case which several fall under the direction of either shall be govern by the  intention without respect to the disagree word nay sometime the law will  supply the defect of word themselves the book be full of authority where  construction have be make of act of parliament accord to the intent of the  maker and not accord to the letter of the law as in the case of eyston v Stud  in the commentary   a where the husband and wife levy a fine of the land of  the wife and declare the use to their heir in tail the remainder to the heir  of the wife they have issue and the husband die the widow marry a second  husband and he and his wife join in a second fine and declare the use thereof  to themselves for life the remainder to the husband and his heir for sixty  year the remainder in tail to their issue the remainder to the heir of the  wife the issue of the first husband enter suppose the estate have be forfeit  by the statute of Henry c which enact that if a woman have a estate in dower  or in tail joint with her husband or to herself of the inheritance or purchase  of he and she do either sole or with another husband discontinue it shall be  void and he in the remainder may enter now this case be direct within the word  of the statute for the woman have a estate tail in possession joint with her  first husband which she have discontinue by join in the fine with her second  husband but yet it be adjudge no forfeiture because it be not within the  intent of the statute to restrain woman to dispose of their own estate but  only such as come from the husband so here use be in the nature of private law  and must be govern by the like intention of the party now it be not to be  suppose that the father do intend to disinherit his only daughter and heir  without notice of this settlement therefore though he have not appoint any  person in particular to give her notice yet it must of necessity be presume  that his intention modern be that she shall have the estate unless she have  refuse upon notice to comply with those condition impose upon her now the  daughter be heir at law and so have a good title by descent if there be any  conveyance make by her ancestor to defeat that title and to which she be a  stranger she ought by the rule of law and reason to have notice of it and so  be the express resolution in frances case   b where the devise and the feoff  be both make to the heir at law and the reason why in the case of fry v porter  Mod c notice be not hold necessary be because the devise be to a granddaughter  who be not heir at law for the earl of Newport have three son then live and  therefore the party who it concern have the same mean to inform themselves  upon what condition they be to have the estate three the notice here give be  not sufficient for as the ordinary himself in green case   a ought to have  give the patron notice of the deprivation before a lapse shall incur so the  trustee here ought to give the daughter notice of this proviso before she  shall lose her estate for nonperformance of the condition on which she shall  take it especial since the notice she have of this proviso be not certain for  it be say she have notice not to marry without the consent of the trustee but  it be not show who they be or how she shall apply herself to they beside there  be something in this proviso which the find in the verdict will not supply for  it may be literal true that the daughter marry without the consent of the  trustee and yet no breach of the condition because the proviso be to restrain  her from marry without the consent of they or their heir now it be not find  that the feoff be then live and if they be dead their consent can be require  and she may have the consent of their heir Mr franklin who be the husband of  modern er p joy the aunt in remainder have likewise forfeit that estate which  he have or may have in right of his wife if she have any right by not take  upon he the name of Fitzgerald for if the father will have disinherit his  daughter for nonperformance of this proviso a strong he shall be intend to  disinherit his sister for make frustrate his desire in the settlement of his  estate in easter term follow judgement be give that the estate tail be not  determine for want of notice accord to the resolution in frances case see the  case of Burleton v Humphrey amblers Rep Scott v tiler brown Cas Chan to see  also Mr hargrave note   light and the case of Hervey v Aston in Mr rise  edition of comens Rep g to b