case lady Coventry widow of Gilbert earl of Coventry decease against the  present earl OF Coventry the young brother of Gilbert decease and lady whether  carew the daughter and heir and sole executrix of the say Gilbert tenant for  life with power to settle l per annum out of such and such land on a wife  enter into marriagearticle by which he covenant for himself and his heir c  that he or his heir will in pursuance of this power or otherwise settle l per  annum the marriage take effect and a settlement be draw accord by his  direction of such land as be comprise within the power but never execute the  question be whether this shall bind the remainderman or whether the wife shall  have satisfaction make her out of the personal estate and decree upon a second  hear that the land shall be settle S c comy S c Eq Abr S c Eq Abr S c Mod S c  pale yellow e r this be a bill bring in the court of chancery to bold and  enjoy five hundred pound ayear of the real estate of Gilbert late earl of  Coventry pursuant to the power reserve by the will of Thomas the father and  the marriagearticle enter into by Gilbert precedent to the marriage with the  plaintiff or to have a satisfaction out of the personal estate of the earl to  have likewise a legacy of three thousand pound give her by the will of modern  report her husband and some other provision make for her jointure by these  article for as her portion be ten thousand pound so it modern report er p be  agree in the marriagearticle that she shall have a thousand ayear in land or  money for her jointure Thomas earl of Coventry the father of the say Gilbert  settle his estate by his will bear date march which settlement as far as  concern the present question be to Gilbert his son for his life then in  tailmale to the first second c son of Gilbert remainder to his second son the  present earl of Coventry for his life remainder in tailmale to his first  second c son and so on and further on in the will this clause be add provide  nevertheless that notwithstanding anything hereinbefore contain it shall be  lawful for any person or person that shall become seize of land or tenement  under the limitation of this my will by any write under his or their hand and  seal to limit or appoint any land not be copyhold nor lease out for life not  exceed in the whole five hundred pound per annum to any wife for her jointure  that shall bring with her a portion equivalent to such jointure Gilbert late  earl of Coventry enter into marriagearticle bear date the twentythird of June  by which in consideration of a portion of ten thousand pound pay he covenant  for himself his heir executor c with sir Strensham master the father of the  plaintiff his heir c that he or his heir shall by deed indent c at the request  of the father but at the charge of the earl his heir executor c pursuant to  this power reserve by the will of his father or otherwise settle upon the  plaintiff for her jointure or procure to be settle land of the full value of  five hundred pound ayear modern report he further covenant to settle upon her  for a addition to her jointure a annuity of two hundred and fifty pound ayear  during her life and that five thousand pound of her fortune shall be lie out  in land wherein she be to have the term of her life for her jointure or the  interest of the money until the land shall be buy from and after her husband  decease the marriage take effect the portion be pay and about two thousand  pound lie out in present Gilbert the late earl immediate after his marriage  desire one Charles parson to consult with his steward what land be the proper  to be settle in pursuance of these article and upon a diligent search into his  estate and the settlement of the family they can find no other manor but that  of Woolvey proper to be settle and that be but four hundred pound ayear this  steward leave his lord service and die quick after occasion further delay the  new steward be for some time unacquainted with the concern of the family but  the earl often express great uneasiness at this delay and afterward upon look  for another manor to make up the five hundred pound ayear they pitch upon one  that have a encumbrance upon it that be necessary to be first clear but  however at last instruction be give and send to London to be lie before  counsel for prepare a draught pursuant to the article the draught be prepare  engross and send down to the earl to be by he execute in the country the earl  after the engrossment of the deed be tell what land be to be settle by this  deed approve of their choice but the actual execution of the settlement be  prevent once by a accidental visit of Mr Sandys afterward by illness and at  last by the sudden death of the earl when the earl express his uneasiness upon  the disappointment he have meet with in make this modern report settlement he  be tell by counsel he may be very easy for that if he shall die a court of  equity will esteem it as do at the time when the earl make his will which be  the day be die there be a man and horse send to the steward who happen to be  fifty mile off and have the key of the place where the engross deed lie but  before the steward can come the earl die by the will he give his wife over and  above what be agree to be settle upon her by the marriagearticle a legacy of  three thousand pound the defendant lady whether Carew daughter of the earl who  die without issue male and executrix of his will swear in her answer that in  case the five hundred pound ayear be to be fling as a burden upon the personal  estate of her father there will not be asset enough to answer all the demand  of the plaintiff sir Robert Raymond sir Philip York sergeant cheshire and Mr  mead counsel for the plaintiff and the defendant lady whether Carew who join  with the plaintiff in order to throw the burden off the personal estate argue  that these sort of power receive always in a court of equity a large and  favourable construction be power give to those who have it not be for such  settlement in which these modern report er p power be contain will have be  tenant of the fee themselves this be use as a reason by chief justice holt for  a large interpretation of these power in the case of sir Charles Orby v Lord  Mohun in Lord cowpers time it be observe that these marriage article want but  one circumstance videlicet a certainty of the land to make they in point of  law a perfect execution of the power but that this defect videlicet want of  certainty be now remedy at least in equity by modern report the step that have  be take in the most solemn and deliberate manner towards the execution of this  settlement it be say that a court of equity will look upon a thing covenant to  be do and intend to be do as do and in case of a legal defect in the execution  of it aid and assist that defect but indeed this must be understand of  settlement execution of power c find upon valuable consideration not voluntary  one the present case be the case of a jointure which be always favour because  it come in lieu of dower the case of onion v tyrer a vern a be a case before  Lord Cowper where a former will appear to have be cancel for no other reason  but because the testator think he have make another to the same effect which  prove not to be duly execute it be determine that equity will set tip the  former will again in the case of Parker v Parker b Rep Eq cite stram see also  Thwaites v day vern and Powel on power b a man have power to charge land for  young child by a write under his hand attest by three witness do in fear of  sudden death and be absent from home by a paper attest by two witness charge  his estate with seven thousand pound for his child and this defect be supply  because occasion by his be absent from home and so not be able to have a sight  of the deed where this power be contain in the case of smith v Ashton c Ch  case c the power be to charge land by deed or will in write under hand and  seal the deed in which this power be be a voluntary one and in the execution  of this power the circumstance of a seal to the will be want yet this defect  be aid for circumstance be but caution to prevent imposition the substantial  part be to do the thing and therefore when it be clear and indubitable that  the thing be design to be do the neglect of circumstance shall not avoid the  Act in equity modern report in the case of Hele v Hele a Ch Rep a it be say  that if de facto the power have be execute equity will have supply the defect  for circumstance be only annex to power to prevent fraud in the case of peach  v Winchelsea b viner Abr b Lord Cowper seem to be of opinion that in case of a  covenant to convey land the money be pay a judgement confess to a creditor  between the time of the covenant and the conveyance shall not affect the  purchaser because in equity the land be esteem to be sell from the time of the  covenant justice Powell in his argument in the case of bath v Montagu c Mod c  admit that even in case of a revocation which be not so much favour a court of  equity may interpose in a case of disability as if the duke of Albemarle have  take the deed over with he to Jamaica and there have a intention to revoke it  have go as far as he can by make his will with six witness that this shall  have be make good though none of the witness be peer because of the disability  he be under to get peer it be argue that though possible it may be object that  the present case do not come direct within the authority of the case quote  because here the plaintiff do not come into equity to establish a conveyance  already execute and only attend with some trivial legal defect but to set up a  conveyance that have not be at all execute yet it do within the reason of  these case for all the preparation that be from time to time take in order to  the execution of it manifest as fix and resolve a intent to have execute it as  if it have actual be do and to speak proper a deed or power execute but  defective in some legal circumstance be real not execute in point of law at  all so that in that case a court of equity may be say to set up a conveyance  not execute because in point of law the whole execution be null and void  modern report have this draught engross be a will it have be a good will  within the statute of Henry c and before the statute of fraud for that statute  do not require the will to be of the hand modern report er p write of the  testator but only to be reduce to write by his direction a covenant to sell  and convey be so far consider in equity as that the court will compel the heir  to join in the sale though this be to his disinherison for the money will go  to the executor it be true that where a tenant in tail contract for the sale  of land and die before execution the court will not carry this into execution  against the issue but the reason of this be because it be contrary to the  intention of the first donor who design as the statute de gift say that the  estate shall remain in the blood c but yet if a tenant in tail have a power to  make lease for three life shall covenant to make such a lease and die before  execution the court will carry this into execution against the heir though  they will not a sale the case of Barkham v Barkham be a case in the Lord some  time wherein he decree a defective jointure to be make good against those that  claim under a marriagesettlement and within the consideration of the  marriagesettlement there may possible be case where a court of equity have  refuse to do this videlicet to support or make good conveyance defective in  some legal circumstance but then this have be when it be demand in favour of  voluntary provision this five hundred pound per annum jointure be but a small  encumbrance in comparison of what the estate of the present earl be able to  bear and he be one that will be the less favour in this court upon account of  his be a volunteer modern report it be further urge that as accident be one  great branch of the jurisdiction of this court no case can ever come before it  attend with more and stranger incident of this nature to be entitle to relief  than the present the great difficulty of find out land free from those  encumbrance mention in the original power death of the steward fear to come up  to London on account of the smallpox the accidental visit of Mr Sandys the  illness of the earl his lady tenderness for his health not suffer he to be  discompose by business and the suddenness of his death when the physician  think he out of danger be all so many accident concur to prevent the execution  of this deed and which cry for relief in this court it be likewise say that  the opinion of counsel in this case will be consider as a favourable  circumstance who all inform the earl he need not be uneasy for if be die a  court of equity will consider this deed as execute Mr Cowper counsel for the  present earl the question here be not whether a court of equity will supply  some slight defect in the execution of a power but whether this court will  entire supply a nonexecution and that in favour of a person not without remedy  for she have a covenant that bind the heir at law and the personal estate that  the heir as executrix be entitle to which we say will upon inquiry be find to  amount to two thousand pound over and above the five thousand pound covenant  to be lie out in land wherein the plaintiff be only to have her life and the  two hundred and fifty pound annuity so that it can be pretend that in this  case here be any want of provision there be one almost adequate to the fortune  though she shall not succeed in what she now pray against the present earl  modern report chief justice holt in his argument in the case of bath v  mountagu strong insist upon it as a fix and settle point in law that power be  to be strict pursue because create by the owner of the land in which case star  pro ration will when a court of equity decree conveyance to be make and power  to be execute it be always in case attend with circumstance of such weight as  to make it appear fit and proper to be do in the judgement of mankind and  without such circumstance a court of equity will never do it it be pro tanto a  departure and variation from the commonlaw as to a surrender in case of  copyhold there be no doubt but this court may supply a defective surrender or  decree one where there be none at all but though the court may do this sure it  be not bind to do this and in all case and only because it be ask No it be to  be do upon particular circumstance as equity case turn upon circumstance and  in favour of purchaser or person that in law or equity be consider as  purchaser as a wife and child unprovide for therefore Lord summer in the case  of kettle v townsend a Eq Abr salk a decree a conveyance of a copyhold in  favour of a grandchild unprovide for but the house of lord reverse the decree  as think the court have go too far in extend this power to grand modern report  er p child and this court have refuse to supply a defective surrender in the  case of a wife provide for before if the case quote for the plaintiff be  reconsider some circumstance will be find attend upon they as will turn they  into so many authority in favour of this earl now defendant as to the case of  smith v Ashton b Eq Abr Chan case finch c r Freem salk b chief justice holt  take notice of it in his argument in the case of bath v mountagu and accord to  he the indulgence a court of equity ever show to provision make for young  child be the chief ingredient in the case modern report beside one very  material circumstance as it be report in Chanc case be omit when quote by the  counsel for the plaintiff which be that a issue be direct to be try at law  whether such note in write be part of the last will of Ralph Ashton and be  find by the verdict to be his will and in favour of young child thus provide  for the court decree the power well execute though the circumstance of seal be  want but be this a authority that the court shall in the present case in  favour of one so ample provide for otherwise decree the execution of a power  ab origin where it be not execute at all as for the case of Hele v Hele it be  indeed the case of a jointure but as there be no decree in it the authority of  it can be great and the counsel in quote it seem to make use of it under the  head of accident but certain the pretence the plaintiff set up to be relieve  in this court under the head of that branch of the jurisdiction of it accident  be the most groundless in the world the article be make in the year the earl  die in four year and a half intervene and yet accord to they it must be esteem  a accident that he die before he can make the settlement in pursuance of the  article and to support this part of the case the evidence give we a history of  his steward his gout the doctor and the bath if it must be look upon as a  accident that a man die in four year why not in eight nay in eighty I know not  where to put the bind be it proper or convenient to enter into the particular  circumstance of this noble family it will appear that the present earl be not  so ample provide for consider all the encumbrance upon his estate and  therefore it will be still hard for this court to interpose to his prejudice  and in favour of one otherwise so well provide for as this lady be modern  report in the case of sir Charles Orby v Lord Mohun where Lord Cowper be  assist by chief justice holt and other judge a bill be bring to have a  defective execution of a power of make lease supply in the power it be express  enjoin that the ancient rend shall be reserve in the execution of the power  the ancient rend be reserve but not say what the ancient rend be this though  such a defect as this court by send it to a master may have supply yet this  court will not interpose because to the prejudice of a three person the  remainderman this most certain be a precedent that what be now desire of the  court be a discretionary power to be exercise by this court as the  circumstance in every particular case shall direct the case of piggot v  Penrice a comy Prec Ch pale yellow Rep Mod see also Powel on power a in Lord  cowpers time in the year be this a wife have a power in a settlement she have  make in favour of her husband to revoke the use and limit new one write to one  to prepare a deed to revoke the use and settle the same upon such a relation  in which letter she take notice of this power in the settlement that do enable  her so to do fall ill she send another letter press the prepare of this deed  for that it be her absolute will to revoke the use and give her estate to this  relation in this case the court declare that they will not interpose that they  must judge by what she have do not by what she intend to do have she be hinder  from the exercise of this power by the act of her husband then the court say  they will have interpose so possible in this case have the execution of this  power be prevent by the art and contrivance of the present earl it have be a  reasonable ground for this court to interpose modern report Mr Talbot it must  be admit that the limitation by which the present earl enjoy be a voluntary  conveyance but then it must be consider that he claim modern report er p under  the will of the father of the late earl and so by a title paramount to that of  the late earl who be himself a volunteer and then I do not see how one  volunteer deserve more favour than another it be say that the present earl  claim under a limitation clog with this power which be true and have earl  Gilbert be please to execute that power which he be perfect at liberty to do  or not the present earl must have submit to it but since the power be  unexecuted it be just the same as if there have be no power at all ever create  the execute or not execute of this power be a mere contingency and as the earl  must have be bind if the less favourable contingency have happen it be very  reasonable that since the more favourable contingency have happen he shall  enjoy the benefit of it the estate of the present earl be already clog with  two considerable jointure now subsist and other encumbrance so that be the  intention of the creator of this power of any weight it be very probable he  will not choose to have the estate of the family encumber at once with so many  jointure which do not so well answer the end propose by he in create the  entail videlicet the support the honour and dignity of the family it have be  say that these article be even in point of law a execution of the power if  this be so the plaintiff must take her remedy at law not in equity but there  be not the least colour for this for it plain appear from the word of the  article that however it may be primary and original the intention of the party  to have make this settlement in modern report pursuance of the power in the  will yet that they never intend to confine and restrain themselves to it the  covenant be that earl Gilbert or his heir at the request of the lady father c  shall by deed indent c accord to the power reserve by the will of the say earl  father or otherwise settle or procure to be settle land of the value of five  hundred pound per annum for her jointure the word or otherwise set the article  lose and at large as to the power for it be very evident that the settle of  any land though not within the power will have be a good performance of the  article the covenant be that earl Gilbert or his heir shall do it so that if  the heir do it it will be a good performance of the article but it be  impossible that a power give to any person claim under that settlement to  jointure his wife can be a authority for a son the heir to jointure his mother  it be say the plaintiff be a purchaser it be true she be so but of what not of  any land comprise in the will of earl Thomas and to which this power extend  all that she be a purchaser of be a right to a jointure and as a security for  the performance of it she have rely upon the personal covenant which bind earl  Gilbert and his heir and if there be asset sufficient for that purpose these  be proper to be apply in satisfaction of this covenant and to make the large  and most favourable construction for her she can only be esteem a purchaser  with respect to we pro tanto as the asset fall short of this five hundred  pound per annum it have be say that whatever a man do not give away from  himself remain in he and that whatever power be reserve by the donor be part  of the old dominion he have over his own estate ought to receive a large and  benign interpretation this rule though true be not applicable to the present  case for the person against who this power be desire to be execute be one that  receive his estate from modern report the same bounty that he who shall have  exercise it do and consequent since both claim under the same title and from  the same donor the one can challenge more favour than the other it be a matter  of the high importance that rule of law the boundary and fence of property  shall remain fix and settle and be never break in upon but with very good  reason and that too as seldom as possible and consequent a court of equity  will not be forward to do it in favour of volunteer therefore in the case of  Arundel v Philpot a vern a mention in the case of bath v mountagu where there  be a settlement with a power of revocation upon the tender of a guinea the  plaintiff claim under a latter settlement make in pursuance of this power of  revocation can not prevail to set aside the first settlement even in a court  of equity for want of be able to prove that little circumstance of the tender  of a guinea but be a volunteer be send to law to have it try revoke or not  revoke indeed at law the party be so fortunate as to prove the tender tenant  in tail covenant to sell b Lanyon v William weal v low Powell v Powell b  receive the modern report er p money stand in contempt to this court for not  suffer a common recovery and die in contempt without do of it yet this court  will not compel the issue to do it it be say indeed that the reason of this be  because it be in derogation of the intent of the donor but this though  specious and what may have hold at the time of make the statute de gift can be  say with any reason at this day for whoever give a estatetail must be presume  to intend to give it with all the legal advantage and as everybody be presume  to know the law the donor must be presume to know that by proper way and  method the tenant in tail may dispose of his estate and be Willing he shall  modern report as to the power exercise by this court in marshal of asset this  court never do it in favour of a residuary legatee and where it be do it be do  for the sake of pay debt and in such a manner as the creditor may have do  themselves and therefore where the heir at law can have no reason to complain  it be reply for the plaintiff that notwithstanding what have be say to the  contrary this be a favourable case be that of a lady who bring a great portion  into the family and will otherwise be strip of a great part of that jointure  she covenant and pay a valuable consideration for as to the objection raise  from those word in the covenant or otherwise it be capable of two answer first  that it be a common caution or phrase make use of by conveyancers to prevent  alley danger that may arise from mistake or misrecitals or second it may  relate to the manner or form of the conveyance for it be very improbable that  it shall relate to land not comprehend in the power the earl at that time have  no other in the case of smith v Ashton c Ch case c the doctrine be full lie  down that circumstance annex to the execution of power be but in the nature of  caution to prevent surprise and therefore when the intent be plain a court of  equity will dispense with they and as that case be quote by Mr justice Powell  in the case of bath v mountagu it be entire put upon the accident of death  prevent the execution of the power the case of Hele v Hele d Ch Rep d be a  case of a nonexecution of a power and though there be no decree yet the Lord  chancellor by direct the plaintiff to amend a fault discover in the bill plain  declare what his sense be modern report the distinction have always be take  between settlement perfect voluntary and those find upon a valuable  consideration Mr Cowper have indeed advance another of provision and no  provision but cite no case in maintenance of this distinction in the case of  smith v Ashton a Eq Abr Ch case finch c r Freem salk a there be a collateral  provision and so it be a authority against that distinction indeed in case of  voluntary conveyance the court have think the matter of provision or no  provision fit to be regard but never in conveyance find upon a valuable  consideration as to the objection that have this power be reserve to the party  himself it will have receive a large interpretation but be to a remainderman  it must have a strict one it may be answer that this be a power reserve to a  son who without this settlement be heir at law will have have the whole fee in  he and therefore be entitle to the same favour which be a reason allow of in  the case of sir Charles Orby v Lord Mohun b Ch Rep b indeed as to the case  itself it be say to be fit to be leave to the law because a voluntary and  peevish execution of the power the case of Pigot and Penrice c see Powell on  power c and Arundel v Philpot d Ch case Powell on p d be case relate to power  of revocation not so much favour by this court and voluntary so that though  the court deny relief they do it upon ground that we admit of as to the case  of tenant in tail it be contrary to the intention of the donor at least the  primary one though the law give the tenant a power to defeat this intention in  a proper manner it be contrary to the statute de gift make in support of this  intent of the donor and though this statute have be so expound as that by  feign action c yet if that particular way chalk out by the law be modern  report er p not comply with a court of equity may refuse to interpose modern  report in the case of lady Clifford v earl of Burlington e vern e Lord  Clifford have a power to limit a jointure of one thousand pound per annum on  land in Ireland upon his marriage he covenant accord to settle a jointure of  one thousand pound per annum send to his steward in Ireland for particular  which be send and the conveyance make but after his death it be find that the  land do not amount to more than six hundred pound per annum a bill be bring  against the remainderman to have the jointure complete and decree by sir  Nicholas wright against the remainderman that clause in the will of earl  Gilbert wherein be give her three thousand pound over and above what be settle  upon her by the article be a plain proof that be do look upon the article as a  good execution of the power by way of appointment as to what be say that this  case can fall under the head of accident because the earl live so long after  the marriage it be easy to answer that four year or more may be as much  apologize for and cover by accident as one and whether the present case be not  such a one must be submit to the court upon the evidence Parker Lord  chancellor as to the five hundred pound ayear the lady Coventry have certain a  very strong and a very favourable case there can be no question whether though  there may from whence she ought to have it it do not appear to I but that the  heir at law may literal perform this covenant and then the controversy will be  only between the present earl and the heir at law I do not believe the  defendant in her answer look upon the five thousand pound deposit for a  purchase as asset whereas the plaintiff be entitle to interest only for her  life the reversion be asset modern report suppose the plaintiff have bring her  action at law upon her covenant against the heir at law it deserve to be  consider whether the heir at law can have come into this court to have be  relieve against the remainderman and to have have this land settle in ease of  his personal estate and discharge of the covenant lie on he by the ancestor it  be absurd to imagine that the word or otherwise shall relate to the manner of  the conveyance or that the settle of other land to the value of five hundred  pound ayear than those comprehend in the power will not have be a full  performance of the covenant and it be impossible that the heir make a  settlement upon his mother can be suppose act in pursuance of the power enable  a man to settle land upon his wife for her jointure this be a case of great  importance marriagesettlement and execution of power be of daily use and  therefore I shall be very cautious of make precedent I will not determine it  without the assistance of some of the judge in the mean time I will direct a  inquiry into the asset that so I may know how far lady Coventry be concern in  the question the present earl be only tenant for life no decree that I can  make will bind the issue and therefore it be more safe for the lady to have a  satisfaction out of the asset upon the covenant if there be enough to answer  all her demand n b when the cause come on again the judge that the Lord  chancellor call to his assistance be of opinion that the marriagearticle enter  into by earl Gilbert together with the deed of settlement draw by his  direction in pursuance of the say article be such a execution of the power  reserve in the will of earl Thomas his father as be bind in equity and accord  it be decree that the plaintiff shall have modern report for her jointure the  land mention in the say intend settlement