case earl of Northumberland against earl of aylesford l that June legacy give  upon condition of release all claim upon the testator estate and effect within  a limit time the legatee take the legacy but do not actual release hold he be  bind b election and his executor shall release what act show a election to  take as legatee lib Reg a foe S c Eden Lord keeper this be a cause between  great person and have be full discuss at the bar but for my part I do not  think the point of any great difficulty or importance except the value which  be a sum of pound the bill be bring for the arrear of a annuity of pound  Payable under the settlement in from the death of the first duchess of  Somerset who die in November to the death of Charles duke of Somerset in  December the annuity be admit never to have be demand from duke Charles or  from the trustee of the term of year create by the settlement for raise the  annuity of pound of which this pound be part ambler the bill be now first  bring by the executor of Lord Hertford afterward duke Algernon for payment of  those arrear out of the asset of his father duke Charles several question have  be make by way of bar saint that the annuity of pound as commence from be  extinguish by the settlement of this bring the several settlement under  consideration by the settlement of a term of year be create not for Lord  Hertford but for the heir male of the marriage before he be bear who be to  receive pound ayear after and the duchess death during the life of the duke  clear of deduction ambler er p by the settlement of Lord Hertford be to  receive pound per and from the death of the duke in case the duchess survive  till some estate of the yearly value of pound above reprizes shall be settle  on he for life in possession by the settlement of specific land of the yearly  value of pound and a annuity of pound ayear be limit   Lord Hertford in  possession with a proviso to be in discharge of pound ayear part of the pound  ayear by the settlement of it be clear by the settlement of duke Algernon will  have be entitle to pound ayear on the death of his mother and it be as clear  that by the settlement of the land of the value of pound ayear be accept as  pound ayear part of the pound ayear and there be no intimation that the pound  annuity be intend nor can it be take in satisfaction of any part of the pound  ayear but the defendant object acquiescence and the statute of limitation for  that duke Algernon never demand it as to acquiescence it can only operate  either as a proof or presumption of actual payment which be not insist on by  the answer or as a tacit gift which be never intend ambler on the contrary it  be prove that duke Algernon think himself injure by withhold the annuity  beside acquiescence between a father and a son be a act of piety in the case  of Lord and lady grey which come before Lord Nottingham he hold the receipt of  rend and profit by the son be no evidence of a trust for the father Lord  Hertford seem to have retain a implicit obedience to parental authority if  therefore the case have rest here I shall think myself oblige to decree for  the plaintiff but duke Charles have make his will and give his son legacy with  a precedent condition from this will it be as plain as word can express it  that duke Charles do not intend that duke Algernon shall have the legacy and a  satisfaction for his other claim but that if he have one be must relinquish  the other stress be lie on the executor by the advice of sir Thomas Bootle  have pay pound the arrear of the pound per and due at duke Charles death I  think sir Thomas act with his usual judgement in advice they to it it be a  compliance with the spirit of the will the release require by the will be  restrain to pretend claim only duke Charles never mean to exclude duke  Algernon from any thing he be in possession of but only from claim such as I  have dispute or deny during my life the executor may as well have withhold the  arrear of rend of the Wiltshire estate as the arrear of this annuity of pound  another objection be make as preliminary to the last point as to the extent of  what be call a forfeiture I do not call it a forfeiture but a want of perform  a condition precedent to attach by way of legacy and to make that legacy exist  in the will I be clear the intent of this will as collect from the proviso be  that if duke Algernon shall refuse to comply with the term of the devise duke  Charles intend to strike the legacy to he out of ambler the will and to revoke  and make they void to all intent and purpose the legacy be give to establish  harmony in his family he can not intend after his son death who be to give the  mover but he intend that duke Algernons daughter shall after her father death  take the benefit of the furniture in northumberlandhouse and sionhouse and  Lord Egremont the furniture at Petworth and I be satisfy be word his will for  such a construction that he intend the release as a condition precedent that  if it be not make what I intend to give to Lord Hertford and his child and  nephew I will give to my daughter and the more so as in the clause of  forfeiture it be the same to all in remainder as it be to Lord Hertford I  think therefore this will create a absolute interest in the daughter in the  furniture and the mortgage money in case of this refusal the legacy be then  give on condition precedent it make the material question simple this which as  Mr attorneygeneral say be a question mere of evidence have duke Algernon take  and receive the legacy if he have he must perform the condition it be a stand  maxim in equity who perceive just to discern by sense debei et onus now there  can be a strong evidence of a election duke Algernons act hardly bear a  comment nor do they admit the least con ambler er p troversy he survive his  father fourteen month he have a copy of the will immediate and be attend by  person very able to give he cautionary advice he never offer to pay one  shilling interest on so large a sum as pound the mortgage debt by not pay the  interest he receive it the same as if it have be owe by a three person he  retain it to himself as a legatee what be his conduct as to the furniture if  he have only enter and let the furniture continue even if he have use it till  take away I shall have think ambler the construction rigorous but he sell it  and convert it entire as a legatee he have certain a right to do so but no way  else as in the case of a condition annex to the legacy of a diamond the sale  of the diamond be a acceptance of the condition his receipt show his conduct  as to the rest he purchase the hay and lead and why not the furniture unless  he take it as a legacy consider this letter to the duchess of that April in  which he say that since it be think necessary in order to prove his father  will in chancery a amicable bill shall be file to which he ought to be make a  party and that in point of form it will be necessary for he to put in a answer  he will give order to have it do have he insist by his answer on all his claim  will it have be amicable I shall call it something of the most indelicate  nature if he have do so after such letter write c what be the answer to all  this Stirrock and harpur say for their evidence amount to this that duke  Algernon say he will not execute a release till his claim be adjust and that  he order harpur to bring a bill it appear to I that he be encourage by his  counsel to think he can set up his claim to the annuity consistent with the  will but I be clear he can not his conduct show that if he can not have both  he intend at all event to take the legacy he receive the interest be take the  furniture this show he have make this determination I will have these thing  adjust if not I will bring a bill but I have show I will ultimate at all event  abide by the will the value of the furniture of all the house be not prove  such part as be at Petworth where the duke constant reside and sometime in  great splendour must have be considerable the other house may be consider as  abandon I can suggest many reason why he shall elect the legacy give by the  will without weigh the value either way it be consistent with his quality with  that filial piety which have display itself during his life his obedience to  his father last injunction and recommendation in his will it be consistent  with his estate and year ambler lady Northumberland be his daughter Lord  Egremont his nephew shall begin at to new furnish all my house and leave upon  the estate of my daughter and nephew a mortgage of pound but I will go a step  further and suppose duke Algernon d declare ever so often and in word his  refusal to take the legacy on the term in the will it will have make no  difference with I I shall still have be of opinion he have accept not on the  foundation of precedent but on certain principle of law that no man shall be  admit to qualify his own act be a fundamental maxim of law put the case  another way suppose it have be the case of a covenant between duke Charles and  duke Alqernon that if duke Algernon accept the furniture within fourteen month  he shall then release all his claim on the estate of duke Charles and suppose  he have accept the furniture of duke Charles and have then come into this  court for a specific performance of the covenant will not the court have  decree a release now I consider the acceptance of a conditional legacy as a  contract or a debt and that if you accept it you take it with the condition  annex dismiss the bill so far as pray payment of the pound arrear of the  annuity and the executor of duke Algernon to execute a release pursuant to the  will of duke Charles vide Lord canden opinion upon rehear post the follow  explanation of the fact in this case take from Mr Eden report which be a very  full one appear necessary to the clear understanding of the judgement by the  settlement of make on the marriage of the duke Charles a term of year be  create on trust if the duchess shall die before the duke leave issue male to  permit the heir male to receive during the duke be life from his attain the  yearly sum of pound by the settlement Algernon Lord Hertford be in can the  duchess survive ambler er p to receive the pound during her life till the  estate shall be settle as mention in the text the settlement of be on the  marriage of Algernon Lord Hertford and the proviso be that the land and  premise thereby settle be to be in discharge of pound per annum part of the  pound the duchess die in from which time the annuity of pound per annum  commence the duke afterward marry again duke Charles by his will after confirm  a former settlement of certain land c to his daughter devise all other his  manor c to trustee upon certain trust therein mention and after recite that  under certain power a sum of pound have be raise by mortgage on part of the  manor c which be on his death to come to he son Algernon and that he have pay  off the pound and the mortgage have be assign to trustee for his the testator  use and remain as part of his personal estate he thereby demise and remit to  the say Algernon the say sum so charge by way of mortgage on the say estate  and he then give all the message c adjoin to the mansion at Petworth and the  use of the furniture at sionhouse and at northumberlandhouse to the say  Algernon for life and then come a proviso to this effect that the bequest to  Algernon of the money so due on mortgage c be on consideration that before he  shall have any benefit of the say several sum c he shall by deed or deed duly  execute release to the duchess and the daughter all his claim right title c to  all the real and personal estate settle on or devise to they by the say will  and in case he shall refuse or neglect to make such deed of release then the  say several devise to he shall be null and void and he give the residue of his  personal estate to his daughter duke Charles die Dec duke Algernon die Feb  never have execute any release leave the earl of Northumberland and justice  Forster his executor the bill be bring by the executor of duke Algernon  against the executor and devisees of duke Charles for the sum of pound be the  arrear of annuity of pound for twentysix year videlicet from the death of the  first duchess it be prove on part of plaintiff that duke Algernon on be inform  of his father will say it be hard he shall be debar of any claim on his father  estate by consideration of the interest of a sum which be to sink into the  estate at his decease that he will not give a release till his claim be  satisfied and that he will file a bill that he take possession of  Northumberland and Zion house before he know the content of the will for the  defendant it appear that duke Algernon never offer to pay any interest for the  mortgage of pound that he immediate on duke Charles death take possession of  the two house and send his steward and workman into they that he have a  inventory take of the furniture at Petworth and buy some bay and lead that be  on the premise several letter be also read from he to the duchess to show his  acknowledgement that he have take possession of Petworth in one of which he  say Mr Harper be to be present at the take away the good leave to you and my  sister I do it foresee any dispute and in another he say that since it be  necessary to prove his father will in chancery a amicable bill shall be file  to which he ought to be a party and that as in point of form it will be  necessary for he to put in a answer he will give order to have it do the note  of the judgement in the text be verbatim the same as in Mr edoms report