atkins case Hervey v Hervey November the that SC barn c b SC Eq Cas Abr pl it  be agree in consideration of pound of the portion pay to the father of the  defendant on his marriage that he shall be put into immediate possession of  part of the estate and as to the remainder it be to be settle on the father  for life with a power for he to make a jointure of such of the land as he  think proper not exceed pound per and remainder to the son in tail remainder  over and settlement be make accord by a deed of the that of may Hervey the  father before his marriage with the plaintiff his second wife convey a estate  of pound per and to trustee in trust to pay pound clear as pinmoney to the  intend wife if she survive he to pay her per annum rentcharge for her jointure  atkins er p after marriage he by a second deed give her another pound per and  clear by a deed of the that of Jan as a further provision for the wife and in  execution of the power he convey all the say premise to the same trustee to  raise the further sum of pound for pinmoney and the net sum of pound per and  as a provision for her in case she survive her husband in bar of all other  provision before make and in the settlement be the follow declaratory clause  it be hereby declare and agree by and between c that it be the intention of  this deed and of the precede one to secure a jointure to his then wife not  exceed pound per and the plaintiff have survive her husband bring her bill  against his son and the trustee under the several deed to have the benefit of  these provision all or some of they the defendant and the trustee decree to  convey to the plaintiff a jointure not exceed pound per and but to be make  liable to tax repair c and to hold and enjoy the same against the defendant c  during her life Edward Hervey the father by settlement make on his own  marriage with his first wife the mother of the defendant Michael Hervey the  son be tenant for life of the family estate which be very large with a power  to make a jointure on a second wife of pound per and remainder in tail to his  first and other son on the marriage of the defendant the son it be agree that  a recovery shall be suffer to bar the use of the former settlement that in  consideration of pound part of the portion pay to the father the defendant  shall be put into immediate possession of part of the estate and as to the  rest it be to be settle on the father for life with power for he to make a  jointure of such of the land as be think proper not exceed pound per and  remainder to the son in tail remainder over and the settlement be make accord  this settlement be make accord by indenture bear date the and day of July and  in the release there be the usual covenant from Edward and Michael to make  further assurance Hervey the father before his marriage with the plaintiff his  second wife who maiden name be mary Carteret by his deed date the that of may  convey all the premise in the settlement contain limit to he for life of the  yearly value of pound to trustee and their heir during the life of the say  Edward and his intend wife in trust in the first place to pay pound clear as  pinmoney to the intend wife during the coverture and upon this further trust  if she survive her husband to pay the plaintiff pound per and rentcharge to  his wife for her jointure and to permit the defendant to take the profit of  the estate provide he do not interrupt her in the receipt of the pound per and  which be declare to be in bar of dower ofthe wife or of any jointure on any  other land the marriage take effect by a second deed Hervey the father give  his wife another pound per and clear as a further provision by way of jointure  atkins and by a deed of the that of January this deed recite the two former  execution of the power and for the more effectual secure the payment of the  say sum of pound pound and pound at the time therein mention c as a further  provision for the wife and in execution of the power Hervey the father convey  all the said premise to the same trustee in the former deed to raise during  the joint life of thehusband and wife the say sum of pound per and for  pinmoney and the net sum of pound per and as a provision for her in case she  survive he husband in bar of all other provision before make and in this  settlement be the follow declaratory clause it be hereby declare and agree by  and between all the party to these present that it be the intention of this  deed and of the precede one to secure a jointure to his then wife not exceed  pound per and No recovery be ever suffer in pursuance of the agreement make on  the son marriage mary Carteret now Hervey survive her husband and have bring  her bill against his son Michael Hervey and the trustee under the several deed  to have the benefit of those provision all or some of they Lord chancellor the  first thing to be consider be the construction of the power under the deed  between Edward and Michael Hervey it be very plain that this be a power in  Edward Hervey to settle a jointure upon any afterwife and so so often how  often upon any subsequent marriage it be a power likewise to settle and assure  that be to convey a legal be eat but then it be limit in point atkins er p of  value for he can not settle all the manor but only so much as will amount to  pound a year and that only during the natural life of such wife it be very  certain nor be it deny by the plaintiff counsel that Mr Edward Hervey in point  of law can not by virtue oh this power settle a annuity clear of tax upon any  aftermarriage by way of provision for the wife see tyrconnel v Ancaster Ves  Blandford v Marlborough post vol let we then consider in what manner Mr Edward  Hervey have execute this power in the first place he convey all the land which  be subject to the power to trustee not to the intend wife for raise a clear  pound per and by the second deed to raise pound more clear of tax c and by the  three deed he recite that he intend only to secure to her pound per and and no  more by all those deed now upon this state it appear to I that the execution  of the power be absolute void in law and equity atkins for the power be to  settle land for a jointure or provision not exceed pound per and and he have  settle pound per and but this be express contrary to the recital and  declaration in the deed of the Jan the word jointure or provision be  synonymous term but this be a conveyance to trustee which be in point of law  no jointure for to make it so the conveyance ought to be to the wife herself    light b   I b a Mr Edward Hervey too have convey a clear estate of pound per  and which be likewise contrary to the power as this be undeniable void in law  consider how it will stand in equity and I say it be void there too but when I  say void there I do not mean that this court will not go as far as possible to  supply a defect in the execution of such a power churchman v Harvey Amb in the  present case neither of the party can possible have what be original intend  they by the power for in respect of Mr Michael Hervey the defendant it be  contrary to what be stipulate between he and his father for here be a clear  rentcharge issue out of his estate instead of be subject to tax c and in  respect to the plaintiff re be not what be stipulate for her because the power  will not extend to give a clear rentcharge it have be right observe by the bar  that a court of equity will supply a defective execution of power as well in  the case of young child and a provision for a wife as in favour of purchaser  or creditor so pollard v Grenvill Charles Rep Charles can S c smith v Ashton  Charles can Freem S c Fothergill v Fothergill Freem Sarth v Blanfrey pale  yellow Rep Coventry v Coventry p W stram S c to lift v to lift p W Cotter v  Layer p W holt v holt p W Sergeson v Sealey post vol Tryconnel v Ancaster Ves  wade v paget bro Charles Rep sneed v sneed Amb by as to the nonexecution of a  power Arundel v Philpot vern Charles can S c piggot v Penrice Com Coventry v  Coventry p W to lift v to lift p W madam v Logan bro Charles Rep but the  counsel for the defendant insist that this relief be applicable only to a wife  unprovide for and that here the wife be provide for by the settlement previous  to the marriage but as the whole which have be do in this case be direct  contrary to the power she must be look upon as a wife unprovide for the case  of smith and Ashton Charles can Freem SC keb SC salk SC Rep tempt finch and to  lift and to lift wms before the late sir Joseph Jekyll sufficient prove that  where power be defective execute this court will supply they notwithstanding  upon these authority and many more which may be mention no doubt but if a  tenant for life who have such a power do after marriage execute the power  though defective yet it shall be supply I be of opinion here that the wife can  have what be stipulate for her previous to her marriage carry into execution  for if I shall so decree it will be break in upon the agreement under the deed  between Edward and Michael Hervey then take it upon this foot she must be  consider as a wife unprovide for and if so she be clear entitle to the relief  of this court accord to the authority before mention this case in some respect  differ from any other that have be cite videlicet bath and Montague select can  in Chanc Ch Rep c because in they there be a provision but a defective one  then it fall pretty much within the rule of a wife or child unprovide for by  defective provision under a will and to atkins this purpose the case of week  and urn decree by Lord Cowper be applicable one reason that weigh great with I  in the decree I be go to make be this that if the wife have claim the pound  per and without set forth any consideration atkins er p but mere as a  voluntary gift from her husband there be no doubt but the court will have give  it her and it will be very absurd to say that because she set forth in her  bill a valuable consideration for a part therefore she shall lose the whole if  there have be any proof in this cause of her use unwarrantable mean to  insinuate herself into the favour of a old man and by impose upon his weakness  have gain any thing clandestine it may have have some weight but in the  present case there be not so much as a suggestion of this kind and beside too  she bring a considerable fortune in marriage the main argument in Lord  Coventry case p W SC stram SC Mod SC maxim in equity last case be that there  be a nonexecution of the power but there have always be a distinction between  a nonexecution and a defective execution of a power here the declaratory  clause in the last deed have supply any defect that may be in the former and  the natural consequence of this be that the party waive all benefit which may  accrue to they from the other settlement and be content with the provision  that be make pursuant to the power that clause which empower the son to hold  the estate provide he pay per and neat to the trustee for the wife be not  within the power and consequent void and no conveyance can be pursuant to the  power but what be to the wife herself only I must therefore decree that the  plaintiff be entitle to have the say pound make good out of the land in  question accord to the power in the settlement of the d July Reg lib a fol  that Michael Hervey and the other defendant the trustee do convey and assure  to the plaintiff a jointure not exceed pound per and and that the master shall  out of the manor subject to the power take such land as shall be sufficient  for that purpose but to be make liable to tax repair c in the same manner with  other land estate and the plaintiff to hold and enjoy the say land against the  defendant and all other person during her life this cause be reheard on the  saint of July Mr Noel counsel for the defendant Michael Hervey argue that as  the portion which the plaintiff bring in marriage be only pound that the  settlement of pound per annum be much more than adequate to that fortune he  insist that the first settlement be such a appointment both in law and equity  as be a full and absolute performance of the power reserve under the  settlement make upon the marriage of the defendant Michael Hervey and  therefore that the second deed execute after the marriage of Edward Hervey  with the plaintiff ought to be consider as mere voluntary the conveyance to  the intend wife under the first deed be to trustee it have be object that it  ought to have be a atkins legal conveyance of a legal estate to the wife  herself and therefore the conveyance to trustee be improper to which I answer  that by the power the father be to have a liberty of make such a jointure or  provision as do not exceed the rend and profit of a estate of pound per and  and though as a express estate have not be limit to the wife herself for life  it be not proper a jointure yet in this court by way of provision it may be  construe a due performance of the power for first it be a good execution of he  power at law second if not good at law it be certain in equity under the deed  of it be agree between Edward Hervey the father and his intend wife the  plaintiff that after the rentcharge of a year out of a estate of pound a year  the residue of the rend and profit shall go to his son the defendant Michael  Hervey therefore as these be party able to contract in a court of equity this  must be consider as good by way of agreement and any further addition which  the wife have after the marriage must be consider mere as a bounty and for so  much she be only a volunteer he cite Scrope v Offley SC bro p c bro p c and ed  in the house of lord the that of march in order to show by that case that the  court where a wife be provide for before will not aid and assist the defective  execution of a power under any second settlement I do likewise insist that the  trustee be equal trustee for Mr Michael Hervey the son as for the wife of  Edward Hervey the father and that as the estate be then atkins er p out of the  father and in the trustee if they have convey accord to the trust it will have  be no breach of their duty the second settlement give a rentcharge of pound a  year which be bad in substance because it be impossible a estate of pound per  and in land can produce a neat sum of pound and where a person have exceed all  bind of his power I do not know that this court have in any instance reduce  that excess within the true limit of the power but have be always hold a void  execution of the power it have be object that the wife claim part as a  volunteer and part as a purchaser and therefore it will be hard to say in a  court of equity that when a person be allow a purchaser for part this court  will not supply the defective execution of a power to this I answer that under  the first settlement the plaintiff be certain a purchaser for a valuable  consideration by virtue of her fortune of pound but that the settlement of be  separate and independent from the former and she be there only a volunteer the  case principal rely on by the other side be to lift and to lift wms but there  be a very material one for the defendant and which be not mention at the  former hear the case of Layer and Cotter wms and hear before Lord chancellor  atkins king in where it be lie down that equity will aid a defective execution  of a power provide it be for a valuable consideration upon the whole he insist  that the present be a new case and no authority whatever cite that come up to  it Mr Wilbraham of the same side the question be whether the first settlement  be good in law and equity second if it be good in law and equity whether this  court will supply a defective execution of a power under a second or three  settlement where they be undeniable bad in law he cite the case of Newport and  savage before Lord chancellor Talbot and Thwyates against die vern to show  that where a person have a power of charge land to such of his child and in  such share and proportion as he by any write shall appoint he may not only  limit the land to any of his child but may charge the land with any rentcharge  or sum of money for any of his child pound per and rentcharge be look upon by  conveyancers as a reasonable provision for a portion of pound and if the  settlement in the present case have be pound per and clear it will have be  double the provision that be usual for it be four time per annum Mr attorney  general for the plaintiff say that under the settlement in which Mr Hervey the  father reserve this power he may be call a purchaser of it from the son the  defendant Michael Hervey because he absolute give up a estate in which he have  his life to the son immediate in possession it be admit by the counsel on all  side that the power be not well execute in law under the settlement of  therefore the execution of the power be void but equity will supply a defect  in the execution and cite the case of kettle v Townshend salk where it be hold  that equity will supply a defect in favour of a son or daughter and that it be  not material that such a son be provide for before nor how far Mr Murray of  the same side this be a power that may be execute piecemeal part at one time  and part at another see zouch v Woolston burr do v Milborne durn and east if a  wife have any former provision that be defective under the execution of a  power the counsel for the defendant take it for grant without produce any  instance or even a dictum of the court that equity will not supply any defect  in a latter provision for the benefit of a wife he cite the case of Watts v  Papal bull wms to show that a voluntary conveyance make to a brother of the  half blood though void and defective at law will be make good by a court of  equity and that as the consideration of blood will at commonlaw raise a use  and as before the statute of the h such beneficiary and use may have compel a  execution of the use in a court of equity so will this imperfect conveyance  atkins raise a trust and consequent ought to be make good in equity Lord  chancellor as this case be attend with some particular circumstance I be not  sorry it have be reheard for if I have see any reason to have change my atkins  er p opinion I shall not have be ashamed of do it but after hear it full argue  on the part of the defendant I still continue of the same opinion I will not  repeat what I say before but rather apply myself to give a answer to what seem  to be the principal reason urge for a rehear the general argument be the  validity of the first settlement at least in a court of equity but I sake it  to be clear that the deed of which be the ultimate attempt towards the  execution of the power be a waiver of the former settlement and supply any  defect that may be in the other two in case of aid the defective execution of  a power either for a wife or a child whether the provision have be for a  valuable consideration have never enter into the view of the court but be  intend for a provision whether voluntary or not have be always hold to entitle  this court to give aid to a wife or child to carry it into execution though  defective make I be of opinion if this power have be execute in favour of a  stranger it will have be good but be mere a equitable thing the person claim  must have come into a court of equity with regard to the deed of may it have  be say the power be complete execute that it can be execute so often how often  but I be of opinion that the poor er be not execute either in law or equity  suppose it have be defective execute and the party afterward execute it proper  there be no doubt but the law will look upon the first execution as null and  void and that it may therefore be execute over again if there have be word in  the first settlement which show that Mr Edward Hervey have full execute the  power or will have amount to a release of it it will indeed have prevent any  subsequent execution but there be no word except what be usual put in by  scrgiveners namely in bar of dower and three nothing be to be infer from the  word the surplus I give to the remainderman for they be only of course and if  not express he will have have the surplus by implication the case of Scroop  and Offley differ toto clo for there a covenant be enter into by the husband  for a valuable consideration upon the first marriage that the issue of that  marriage shall enjoy free from any encumbrance do or to be do so that he be  tie down by that clause it have be further urge by the defendant counsel that  suppose the pound per and be not a good and complete execution of the power  yet it be such a execution of the power as will induce the court to think a  wife in some measure provide for under it atkins this be rely upon as the  strong point I be of opinion that the rule as lie down by the defendant  counsel that a wife or child who come for the aid of this court to supply a  defective execution of a power must be entire unprovide for be not the right  rule of the court I think the general rule that the husband or a father be the  proper judge what be the reasonable provision for a wife or child be a good  and invariable rule and when a father have do any thing extravagant in either  of these case the court do not break through this general rule when they set  it aside but they go upon a collateral reason that this extravagant provision  either for a wife or one child only be a prejudice and injury to the rest of  the family and that one branch ought not to be improper prefer to the ruin of  the rest in lady Oxford case mention in smith and Ashton Ch can her jointure  be decree good where the power be not pursue though only a part of her  jointure depend on the question I will in the next place consider it as if the  rule lie down by the defendant counsel be a right one and then it will come to  this question whether she be a wife provide for under the settlement and I be  of opinion that as the court can carry it into execution accord to the intent  and meaning of the party she can be say to be a wife provide for as this be a  power to make a jointure of land only not exceed per and it be not the intent  that the whole estate shall be encumber for the remainder man be to have the  surplus which he will not have if the pound per and rentcharge shall take  place for then the whole will be liable to answer the rentcharge and by that  mean the remainderman will lose his surplus atkins er p but then it have be  say the court may have take pound per and out of the per and to answer this  rentcharge but suppose this estate have lie in the level or marsh ground there  may have be inundation and then the part so allot may not even have produce a  rentcharge of pound this will have be a prejudice too in respect of subsequent  remainderman for suppose the pound a year have by any accident prove a  insufficient fund then the arrear of the rentcharge will have run on and the  remainderman at least who stand behind Michael Hervey will have be injure I  agree if there have be no settlement beside the deed of the court will have  find out some other way to make the provision for the wife effectual and may  perhaps have do what Mr Noel have point out allot so much of the estate which  be subject to the power as will have be sufficient to have answer a clear neat  sum of pound annual lie make a allowance for land estate be liable to tax but  I be of opinion whatever the court may have do under the deed of to aid and  assist the wife if it have stand atkins single and clear of subsequent  settlement yet as the case be now circumstance if the court can give her hat  be agree and stipulate for under this deed they will certain secure to her  what be give under the settlement of and as this be a rentcharge and not such  a provision as be stipulate for the wife she must be consider as absolute  unprovide for and then she will clear be entitle accord to the rule of equity  to be aid and assist in carry a defective provision into execution it have be  say where there have be a excess in the execution of a power that there be no  instance where the court have assist to carry such a case into execution but  though there be a excess or redundancy in the thing itself yet it must be  consider only as a defect in the legality and there be many case to this  purpose and I will put one suppose a power to lease for year and the person  lease for this be void only for the surplus and good within the limit of the  power so Parry v bow Nels Rep Ves it be surprise to I how the person who draw  this settlement can mistake when he have so plain a power for his guide but he  do not seem to have commit blunder so much as wilful mistake with a view to  try experiment like sergeant maynard conclusion in some of the clause of his  will to be strong quantum to be strong to be able upon the whole I be of  opinion that the settlement in be draw in such a manner as that the wife can  not have what be intend for her do not annul or defeat the last settlement and  therefore do direct that my former decree shall stand without any variation  Reg lib a fol atkins see prefatory note atkins er p