brown case Lord viscount Montague appellant sir george maxwell ux respondent  that may land settle in jointure be covenant to be of the yearly value of  pound the husband by his will give his wife pound and other legacy the  jointureland prove deficient pound per and hold that the legacy which be admit  to be of great value than the defect of jointure ought to be take in  satisfaction of such deficiency decree of Lord chancellor Cowper vary see this  work title satisfaction case bro p c the point in viner and Eq can ab as  extract from the ms table brown er p be as follow and be there quote as decide  on April which be on the hear of this cause on the matter and equity reserve  person who prove a will in the spiritual court by which he swear the testator  be of sound memory after controvert the same will at law as to the real estate  upon which a issue be direct compos or non compos and find non compos viner  vol p can Eq can ab b can Francis Lord viscount Montague on the marriage of  Francis brown his old son with the respondent the lady dowager Montague who be  then the widow of Richard mollineux Esq by indenture date the that of January  settle several manor land and hereditament in the county of Sussex to the use  of the lady for life for her jointure with remainder over in strict settlement  and the land so settle be covenant to be of the yearly value of pound which be  deem a adequate provision for the intend wife as she bring no other fortune  but a jointure of pound per and settle by her former husband and a  reversionary interest in a annuity of pound per and both which be after the  marriage sell for pound on the death of Lord Montague which happen some few  year afterward the honour and estate come to the say Francis his old son who  have suffer recovery of several part of it by indenture of lease and release  date the that and that of February limit the same to himself for life  remainder to the heir male of his body remainder to his brother Henry the  appellant for life remainder to his first and other son in tail male remainder  to the heir of the body of Anthony Lord viscount Montague decease with  remainder to his own right heir and in this settlement a power of revocation  be reserve to Lord Francis either by deed or will accord he soon afterward  make his will all of his own handwriting date the that of march whereby he  revoke the use of the last deed as to several of the land therein comprise and  devise other land of about pound per and to the viscountess for life together  with a legacy of pound and all his household good not comprise in any  inventory mention in his will and the say testator thereby subject his manor  of cock and certain other land to the payment of his debt and brown legacy and  create a term of year in those premise for that purpose but the viscount have  no issue and be mind to make some further provision for his lady he by  indenture date the that of April revoke the use of other part of the estate  comprise in the settlement of and limit the same to trustee in trust to raise  pound for her in case she shall survive he and subject to this charge the  premise be limit to the same use as in the former settlement of by indenture  of lease and release date the that and saint of August the say Francis  viscount Montague convey certain land of which he be seize in fee to trustee  in trust to pay his own and his father debt and all annuity legacy rend and  other sum which he by will or codicil shall direct or appoint and subject to  these trust the land be limit to himself in tail male with remainder to his  brother Henry for life remainder to his first and other son in tail male  successive on the that of February Lord Montague as allege make a codicil to  his will and thereby devise to his lady a annuity of pound per and during her  life clear of tax to be issue out of certain land therein mention and appoint  her and Lord powis executor of his will on the that of April follow the  testator die without issue whereupon the honour and family estate come to his  brother the appellant in July the lady dowager Montague marry the other  respondent sir George Maxwell and her jointureland prove deficient about pound  a year she and her say husband in Michaelmas term exhibit their bill in the  court of chancery against the appellant for a satisfaction of their demand on  account of this deficiency and to have the jointure make good for the future  also for payment of the legacy of pound and the several specific legacy give  to the viscountess brown er p by the testator will and to compel payment of  the annuity of pound per and give her by the codicil with the arrear thereof  from the testator death the defendant by be answer to this bill insist that  his brother the late viscount have no power to charge the estate further than  for his own life only and that the several deed will and codicil be unfair  obtain from he that the annuity of pound be charge on land of the gift of the  crown which the testator have no power to charge that the lady have the sole  management of his real estate in his lifetime and have thereby raise great sum  to her own private use and that one Monsieur Brunette have by his will give  her the interest of livres during her life which she have accord receive till  her husband death and which ought therefore to be take as part of his personal  estate the defendant also exhibit a cross bill pray a account of all these  matter and that what the brown viscountess have so receive may be apply in  payment of her late husband debt and legacy on the that of January both these  cause be hear before the Lord chancellor Cowper who inter alian declare that  the pound and other legacy which be admit to be of great value than the defect  of jointure ought to be take by the viscountess in satisfaction of her husband  breach of covenant in not settle land in jointure of pound per and and it be  admit that she have receive the pound legacy but have give a note whereby she  may be liable to repay it again it be order that such note shall be forthwith  deliver up to her by the defendant as to the pound secure by the deed of April  his lordship declare it be well charge on the premise therein comprise and  ought to be raise with interest at per cent from Lord Montague death by a  account of profit or by sale but in regard the trustee have make no entry and  the defendant have two year time give he for payment of this pound and  interest the account of profit be therefore to commence only from the time of  exhibit the original bill and the consideration of the sale of the say premise  and of the timber grow thereon be reserve until after that account shall be  take and as to the pound per and give by the codicil it be insist that the  same be charge on land the reversion whereof be still in the crown his  lordship declare that if it be to be consider mere as a rentcharge issue out  of land that be entail the reversion whereof be still in the crown it will be  void but that it ought to be consider also as a annuity or legacy give to the  viscountess by the codicil and inasmuch as the late Lord Montague have by the  deed of August subject the premise to debt and to such annuity legacy and  other sum as he by will or codicil shall appoint the say deed have relation to  a codicil after to be make and be intend to be a provision for any annuity  which shall be thereby give and that the codicil have give the pound per and  by the name of a annuity and it be the only annuity give thereby the same fall  within the express word of the trust deed of August and therefore decree it to  be raise accord and it be refer to a master to compute what be due for the  pound and interest and the arrear of the pound per and and interest towards  satisfaction of which the defendant be to account for the profit receive out  of the premise comprise in the deed of April and those subject by the will to  the debt and legacy and comprise in the year term as also for the profit of  all the land in the deed of August till part thereof be sell and from thence  for what remain unsold and for the money raise by sale thereof which be to be  bring before the master and pay to the plaintiff towards satisfaction of their  demand and a account be direct to be take of the personal estate come to the  hand of the defendant and the viscountess be to brown account for what thereof  have come to her hand but as to her account for what of her husband estate she  have receive and manage in his lifetime his lordship declare there be not yet  sufficient proof to warrant any such direction but if as be pretend the say  estate be pound per and clear when she take the management thereof upon her  and that there be not sufficient leave to pay wage and necessary for the  family and that her husband be indebt upward of pound at his death there may  in such case be ground to give such direction and therefore the master be  order to state what debt Lord Montague owe at his death and when contract and  the consideration of brown er p her account for the profit of his say estate  and the interest of Monsieur brunettes legacy receive in her husband lifetime  be reserve until after the report but as to the legacy itself it be declare to  survive to the viscountess and what upon the several account aforesaid shall  appear due for profit or money raise by sale the same together with the  personal estate be to be apply towards satisfaction of the plaintiff demand so  far as it will extend and if deficient the consideration how such deficiency  be to be supply be reserve from this decree the defendant appeal insist S  Cowper S mead that the pound appoint to be raise pursuant to the deed of April  ought not to be in any manner satisfy out of the estate comprise in the deed  of August but ought to be raise only out of the land on which the same be  original charge and since as the decree stand even the personal estate of the  late Lord Montague be make subject to satisfy this pound it be apprehend to be  consider as a legacy and if so it ought to go in satisfaction of the other  legacy of pound that no immediate satisfaction ought to have be decree to the  respondent till it have be determine whether the viscountess shall account for  what she have receive of her late husband estate in his lifetime since it may  probable happen that on take such account she will be find to have already a  satisfaction in her hand for great part of her demand and therefore she ought  to have be immediate direct to enter into that account and also for the  interest of the livres receive in her husband lifetime especial as there be  sufficient proof in the cause to warrant such a direction that there be plain  proof of Lord Montague be incapable of execute any will at the time of the  date of the pretend codicil and therefore the annuity of pound per and ought  not to have be establish but if the codicil shall be take to be well execute  yet under the circumstance of this case it be apprehend to be very hard to  charge this annuity on the land comprise in the deed of August when it do not  appear that the late Lord Montague have any such intention or design and when  the contrary may rather be presume from his have charge it by the codicil on  other land and give a power of distress in case of nonpayment that brown all  the provision for the viscountess be voluntary the respondent by their bill  have state the consideration of they to be as a recompense to her for the  indefatigable pain she take in the constant attendance upon her say late  husband person for a uninterrupted course of many year together he be very  infirm for a long time before his death and therefore it be hope that as the  viscountess over and above the provision by her marriagesettlement have a  estate for life in land of considerable value and in the capital seat of the  family a legacy of pound jewel household stuff and other effect to a large  amount beside the pound to be raise there be no reason for a court of equity  to interpose in make good the annuity by charge it on land upon which it be  never intend to be charge and even contrary to the intention of the codicil  itself on the other side it be say I Jekyll t powys that the codicil be make  two month before the testator death and that both the will and codicil be read  over to the appellant in two or three day after his brother death that he  acquiesce under the same and do not pretend that his brother be impose upon or  that he be non compos chin at the execution thereof but only seem to be  displease at a legacy of fifty guinea give to one of the servant that the  appellant be some time afterward desirous of take out administration with the  will and codicil annex he apply to the counsel of the viscountess for that  purpose and propose that if the executor will renounce so that such  administration may be grant to he he will careful pay his brother debt and  legacy and faithful perform his will and codicil that this proposal be dissent  to and carry into execution accord by which mean the appellant have get  possession of the personal estate to the value of pound which the viscountess  may otherwise have retain towards satisfaction of her demand and therefore it  be insist that the appellant have sufficient affirm the codicil and ought not  after such a acquiescence to be permit to impeach it as to the annuity of  pound per and if it can not be raise out of the land in the codicil by reason  of the entail and reversion in the crown it ought to be raise by the trust  deed of August for the reason state in the decree and as to the legacy of  pound it be admit to brown er p have be long since pay but this and the other  legacy give by the will be decree to be a satisfaction to the viscountess for  the great breach of covenant in the deficiency of her jointure so that if the  appellant shall prevail in the point of apply the pound in satisfaction of  this legacy the viscountess will be leave without remedy for the breach of  covenant and yet lose this part of the recompense which be give in  satisfaction thereof beside this pound be a legacy give by will Payable  immediate out of the personal estate and be pay accord but the pound be a  charge upon land by deed and be not make Payable till two year after the  testator death so that they be give upon different occasion make Payable at  brown different time and out of different fund and the pound be moreover  declare by the codicil to be as a augmentation to the jointure of the  viscountess and which she be to enjoy over and above such legacy as be give  her by the will but after hear counsel on this appeal it be order and adjudge  that the decree in such part thereof as direct the viscountess to account for  the personal estate of her late husband shall be so far vary as that she shall  only be decree to account for such part of the say personal estate as be rest  in her hand or in the hand of any person or person for her use or in trust for  her at the time of her say late husband decease and as to such part of the  decree as direct a inquiry by the master in order to determine whether the  viscountess shall account for the rend of her late husband estate receive in  his lifetime the same be affirm and as to the pound annuity mention to be  devise by the codicil it be order that the court of chancery shall direct a  issue at law to be try at bar by a jury of the county of Sussex the first  convenient opportunity to try whether the say Francis late Lord viscount  Montague be of sane memory at the time of the execution of the codicil in  question and as to the other point in question upon this appeal it be order  that the consideration thereof shall be reserve until after the issue above  direct be try but as to all other matter in the decree not complain of by this  appeal or now affirm the court of chancery be order to proceed thereon as  shall be just notwithstanding the direction of the say trial and the  reservation above mention jour vol p in obedience to this order a trial be  have when the jury find a verdict that the say late Lord viscount Montague be  not of sane memory at the time of the execution of the say codicil and counsel  on both side be hear on the that of April upon the matter and equity reserve  it be order and adjudge that the say decree so far as the same relate to the  pound annuity devise by the say codicil shall be reverse and that the  respondent bill in the court of chancery so far as the same concern the demand  of the say annuity shall be dismiss and that so much of the decree as allow  cost of suit to the respondent general shall be so far vary as to except such  cost as relate sole to the matter of the say annuity that in respect to the  circumstance of this case no cost for the say trial at law shall be allow or  pay to the appellant and that the decree as to the other matter complain of in  the say appeal shall be affirm ibidem p