case wheeler versus Bingham June will S c if the testator himself have in this  case abridge the legacy it will have be no more than in terror and delegate it  to another to do it will carry it no further and consequent this not amount to  a devise over the plaintiff be entitle to the legacy see the note annex to the  case of Hervey v Aston ante atk vol Mr pottinger by his will inter alian give  to each of his grandaughters that shall be live and unmarried at the time of  his decease on their respective day of marriage the sum of fifteen hundred  pound and he do desire that none of his grandaughters shall marry without the  consent of the father and mother or the survivor of they and therefore if any  or either of they shall marry without such consent then by atkins er p his  will he revoke what be thereby direct to be pay to such grandaughter or  grandaughters and such of they shall not be entitle to any benefit by virtue  of such his will further than what the father and mother or the survivor of  they shall direct and he afterward direct that after the several legacy and  sum direct to be pay be satisfy if any sum of money shall remain in the hand  of the trustee the survivor or survivor of they the same shall be pay to his  daughter Philadelphia for life and after her decease to the defendant Bingham  and his heir atkins the plaintiff one of the grandaughters have marry without  consent of the father and mother and have bring her bill for the legacy the  mother of the plaintiff have appoint trustee of the legacy for the plaintiff  for her separate use for life and to her issue but if she have no issue then  to the defendant Mr Bingham Mr solicitor general for the plaintiff cite the  case of paget versus Haywood ante atk vol S c November at the roll where it be  hold that a general devise of the residuum or a devise to the person entitle  to the residuum be the same as if there be no devise over at all Mr attorney  general for the defendant cite Harvey versus Aston ante atk vol S c pasch Geo  with regard to Lord chief baron Comynss opinion on the effect of a devise over  Comynss report and also Eq Cas Abr Amos versus Horner and creagh versus Wilson  vern to show that the plaintiff wife be not entitle to the legacy of pound  under the grandfather will Mr solicitor general in reply say the case of Amos  versus Horner be report in no other book and sir Joseph Jekyll say in the case  of Harvey and Aston he have order search to be make for it but it can not be  find Charles Cas Bellasis versus sir William ermine be determine direct  contrary and garret versus pretty vern Lord chief baron comens refer to these  two case as have settle these distinction uncontroverted wherever this court  exercise a jurisdiction with another court they have adopt their rule and  never vary in their determination from the ecclesiastical court but where the  interest of a three person be concern the defendant counsel have construe it  to be the same thing under the word of the will as if the testator have give  it to the mother of the plaintiff to dispose of absolute which be by no mean  the case it be only leave it to the father and mother to give it total or  partial to such child as have marry without consent Lord chancellor in the  present case the direction the grandfather have give by his will that the  grandaughter shall take the advice of parent atkins be a very wise one and  what the mother have do appear so reasonable that if I can consistent with  determination of this court and the matter be res integral I will go as far as  possible to support it but notwithstanding such inclination I can hold this  portion to be in the power of the mother to be dispose of in the manner she  have do for it will shake the settle rule of the court the first question be  whether this condition be a effectual condition or in terror only second  whether here be that which amount to a bequest over of the legacy as to the  first in order to prove it be a condition that ought to have its effect it be  say by the defendant counsel it amount to the same thing as a condition  precedent and therefore the party claim must show it perform two answer may be  give to this it be clear a personal legacy and the personal estate be  sufficient to satisfy the whole and consequent be no charge on the real estate  it have be lie down in Harvey and Aston by Lord chief baron comens that the  civil law make no difference between condition precedent or subsequent but  hold it to be a void condition equal in both there have be several case in  this court of a personal legacy where if it have not be give over though a  condition precedent yet it will not be effectual to defeat the legacy but I  take this to be a condition subsequent for when the event happen it be vest  atkins er p a distinction have be attempt here that the breach of the  condition happen eastern instant the legacy vest it be therefore void but  though they meet together at the same time yet they be consider in point of  law as subsequent in the order of thing it have be true say she need not show  in the ecclesiastical court any thing but the marriage and the objection must  come from the other side and prima fancy it be sufficient for her to show the  legacy and that she be such a grandaughter as be describe in the will  therefore I be of opinion the attempt a distinction from former case to make  this a condition precedent will not prevail atkins but it have be say if there  be not a condition precedent but subsequent yet it amount to the same thing as  a devise over by reason of the strength of the evidence of the testator intent  that the legacy shall cease I be of opinion this be not the reason that have  govern the court there have be abundance of case here where the intention of  the testator be full as strong that the legacy shall cease as in the case of  garret versus pretty and yet the intention only do not prevail the true ground  upon which this court have suffer the condition to effectuate be not the  intention but the right of a three person the be give over and vest in that  three person if the condition be not perform if that be so the next  consideration be whether here be in the present case what amount to a devise  over to a three person in point of right I be of opinion there be not the gift  to the trustee be not of a particular fund but of his personal estate in  general then afterward follow it be my desire that none of my grandaughters  shall marry without the consent of the father or mother c then come another  clause which say that after the several legacy and sum direct to be pay and  satisfy if any sum of money shall remain in the hand of the trustee c the same  shall be pay to his daughter Philadelphia for life c upon these two clause and  the clause of revocation the question of bequest over arise it have be insist  on by the counsel for the defendant that the plaintiff not have any further  benefit than what the father or mother or survivor of they shall direct amount  to a devise over but I be of opinion it do not if it have be say upon her  marry without consent I revoke that legacy and give the pound to the father or  mother to dispose of it will have be a devise over but this be only put it in  the power of father or mother or the survivor to abridge the legacy give to  the daughter and when it shall be so abridge the remainder will have fall into  the residue atkins the authority be most clear in the case of garret versus  pretty and Bellasis versus ermine to this purpose if the testator himself have  abridge this legacy it will have be no more than in terror and consequent  delegate it to another to do it will carry it no further garret v pretty vern  by if the lesser legacy be to vest upon a condition precedent creagh v Wilson  vern gillet v Wray p W the clause c if any sum of money shall remain in his  trustee hand the survivor or survivor he direct the same shall be pay to his  daughter Philadelphia for life and after her decease to the defendant Bingham  and his heir have be make use of on both side the first part of it by the  plaintiff and the latter by the defendant counsel the word precede when the  several legacy shall be full pay and satisfy say the plaintiff counsel mean  when all the sum before give shall be aid and therefore nothing be give over  till all the sum be pay that can never be the meaning but what the defendant  counsel have say be the right construction when they shall be pay accord to  the direction of the will beforementioned the other word make use of on the  part of the defendant be particular declaration of particular sum of money if  this have be a particular fund which be give to his trustee as certain stock  or certain mortgage and the will have say the legatee shall have no more than  the atkins er p father and mother shall appoint then I think it will have be a  gift over of the remainder of that particular fund but this be only a  description of the residuum of the personal estate in the hand of his trustee  then the observation I have make bring it to the rule of this court and I be  of opinion a express devise that if legatee shall not perform the condition  the legacy shall sink into the residuum amount to a devise over see Amos v  Horner Eq can ab pl Scott v tiler bro Charles Rep but there be no such  direction here and therefore though there be nothing unreasonable in the  restriction and though what the mother have do be prudent yet I can construe  it to be a forfeiture of the legacy without shake the authority of all the  other case and consequent must decree the legacy to the plaintiff