case shepherd versus gibbons et all November Lord Hardwicke hold that the  construction in this will of the word as his sister several die be that the  sister shall take as tenant in common and not as jointtenants the question in  this cause arise on the word of John Bromwicks will who be seize in fee of a  freehold estate at very bar and great bar in Staffordshire June make his will  and thereby devise to Thomas Lacy and Joseph Gibbons their heir and assign the  land afore mention in trust that the say Lacy and Gibbons and the survivor and  his heir and assign shall permit his three sister mary Rudge Elizabeth sayer  and Ann pace and their assign to hold and enjoy it the say premise and to  receive the rend thereof to their sole atkins and separate use as they shall  appoint notwithstanding their coverture to the intent that the say three  husband may have nothing to do with the say premise or the rend thereof and as  his say sister shall several die he give the premise to their several heir  with a proviso for the trustee to demise and let the say premise during his  sister life but to permit they and their heir to receive the rend thereof that  in regard his personal estate will not be sufficient to pay his debt legacy  and funeral charge therefore the testator direct that Thomas Lacy and Joseph  Gibbons and the survivor of they and the heir of such survivor shall sell and  dispose of such part of his say message land and tenement and of the freehold  and inheritance thereof by sale or mortgage or by sale of any timber grow  thereon as they shall see occasion and with the money thereby arise to satisfy  all and so much of his debt c as his personal estate shall not amount to pay  he appoint his three sister executor and soon after die leave they together  atkins er p with the plaintiff the son of Eleanor Sheppard another of the  testator sister who die in his lifetime his coheir on the d of January mary  Rudge die leave issue the defendant Rudge her only daughter and heir Ann pace  be also since dead and the defendant be her son and heir Elizabeth the wife of  the defendant sayer in her lifetime join with her husband in levy a fine and  the deed to lead the use have vest a trustestate in fee in the husband of her  three part she die without issue on the that of August leave the defendant  Rudge and pace and the plaintiff as be the issue of her three sister her  coheir at law the plaintiff have bring his bill against Gibbons the heir of  the survive trustee to be let into possession of a three of the testator  estate the first question be whether the devise to Lacy and Gibbons and their  heir to hold to they and their heir be a devise of a bare trust to they in fee  of the whole inheritance in the estate or whether the use of the whole  inheritance execute in the three sister or whether second the devise to the  trustee give they a legal estate only for the life of the three sister upon  the trust in the will so that the remainder limit to their respective heir  must vest in they as purchaser atkins Mr Harvey for the plaintiff in order to  show that the intention of the testator shall prevail over the law cite  Borastons case   a backhouse versus well Eq ab pl hill Ann b r before Lord  chief justice Parker c king versus mell vent and to show that the word heir of  the body and heir male have be construe word of purchase or word of limitation  as they support the intention of the testator he cite Papillon versus voice p  W Lisle versus grey Jones lev and that the doctrine in shelly case coke though  it have prevail in deed yet have not be extend to will Lord chancellor this  case be so very plain that there be no occasion for hear the defendant counsel  if this be a contingent limitation for the sister to take by purchase they  must either do it on its be a contingent limitation of the trust or a  contingent limitation of the legal estate it be true the whole inheritance may  be vest in trustee and yet afterward there may be a spring use which shall  defeat the first limitation of the legal estate so that they can never unite  to make one estate of inheritance but shall continue separate but consider  this case the first limitation be to trustee and their heir and if you shall  make this construction that the trustee have only a contingent legal estate  defeasible upon the death of either of the sister then what will become of the  subsequent trust in the same trustee for the payment of debt therefore the  whole legal estate must be consider as original in the trustee Robert v  Dixwell ante vol Baqshaw v Spencer post then the question will be what kind of  trust this be there be no colour in the world to say that the testator create  this trust to put the inheritance out of the sister but his meaning be only to  prevent the husband from intermeddle it be true the word heir may be make word  of purchase but then they must be very particular and as they shall several  die I give the premise to their several heir which be the word here and have  never be hold to make the heir purchaser atkins suppose a man shall devise to  a for life and to the heir of his body will not the court unite the two estate  so as to make the first taker tenant in tail vide Coulson v Coulson ante king  v burchell cite burr morris v Le gay ibidem Goodright v Pullyn ld raym  Broughton v Langley salk see Fearne Edward that then the plain meaning of the  word as they several die vide Heathe v Heathe ante c be that the sister shall  take as tenant in common and not as joint tenant upon the whole a clear case  can not come before the court and therefore I must affirm the master of the  roll decree the bill have be dismiss by the master of the roll Reg lib b fol  atkins er p Lanoy v duke and duchess of Atho atkins er report date case miss  Lanoy versus the duke and duchess of athol November see Loosemorev Knapman key  there be a borrow and a lend in the case of a mortgage the real estate be  consider only as a pledge and the personal liable in the first place but this  rule have never be carry so far as to extend it to a provision in a settlement  Lord chancellor this cause come after a great length of time but that be no  objection as the plaintiff be a infant and be only now just of age two thing  which have be mention may be lie out of the case first that it appear there be  some surprise upon the court second that thing be not right state I have read  over the copy of the decree and it do appear to I that the material thing be  before the court and the same point be insist on then as be now and therefore  I can impute any improper management to the cause in order to prejudice the  infant but however if the court shall have err in their judgement the  plaintiff be entitle to have it set right the first objection to the decree be  that there be no direction give for the payment of the duchess of athol arrear  of pound per and nor the arrear of pound per and charge on the real estate for  the plaintiff maintenance during her minority it appear that the real estate  fall very short of answer all the charge upon it and therefore the plaintiff  counsel insist she be entitle to have these deficiency turn upon the personal  and copyhold estate belong to the late Mr Lanoy her father atkins because  there be a covenant in the marriage settlement that in case his wife shall  survive her husband then his heir executor c shall pay the pound per and to  his wife clear of every thing except the landtax but though there be this  covenant it be true say by the defendant counsel that the personal asset be  not the original fund charge Coventry v Coventry p W Edward v freeman p W  Evelyn v Evelyn p W Burgoigne v fox ante vol see Galton v Hancock ante and  note and in that respect differ from a mortgage or any other encumbrance for  there be a borrow and a lend in the case of a mortgage the real estate be  consider only as a pledge ante Galton v Hancock and the personal estate which  be the natural fund be liable in the first place ante note but this rule have  never be carry so far as to extend it to a provision upon a settlement then  consider this upon the first settlement which be in consideration of marriage  and be a good one though the wife bring no fortune at the time ex part marsh  ante vol brown v Jones ante vol Mr Lanoy create a charge of pound per and upon  his real estate as a jointure for his wife and subject thereto to the heir  male of his body and in default of such issue to his own right heir suppose a  much strong case than the present that there have be a son who will have take  per form gift under the settlement and yet will he have have the real estate  disencumber out of the personal there be no pretence to say he will there  never be nor ever will be such a decree a strong the plaintiff be not entitle  to it under the first settlement as she take only as heir at law consider it  next under the second settlement the husband and wife levy a fine and make a  new settlement the limitation of which be to himself for life and to his wife  for life then a term of year to raise a portion of pound for daughter whether  any son or not and subject thereto to the heir of the body of the husband  under this settlement what ground have the plaintiff to have the real estate  disencumber out of the personal she do not in the first place take as a  purchaser for it be a settlement after marriage there be no limitation to the  first and every other son no limitation to the heir of their two body but a  general limitation to the heir of his body now by virtue of this settlement if  Mr Lanoy have survive his wife and marry again it will have go to the old son  of his second wife and not to the plaintiff atkins but still I be of opinion  there be a equity for the plaintiff and that be in respect of the pound  portion by the first settlement there be no provision by way of portion at all  then afterward come this great accession of fortune to the wife from her  father Mr Frederick atkins er p suppose Mr Lanoy be entitle to this addition  in his own right or in the right of the wife only he be either way justify in  make the second settlement vide Colville v Parker cro James Jones v marsh can  tempt Talb ware v shallet Ves Hylton v Biscoe ibidem brown v Jones ante vol  Wheeler v caril Amb Stileman v ashdown post now the plaintiff be a daughter  and a child and in this court consider in the nature of a creditor for the  portion if that be so what will be the effect of it in equity by the master  state of the account there be great arrear of the pound per and jointure upon  the wife and likewise of the pound per and maintenance for the plaintiff  almost a deficiency of which must run on as a burden upon the inheritance and  as have be true say it must exhaust the inheritance if the duchess of Athol  shall live to be very old which in the course of nature she may do the duchess  have two fund real and personal asset to answer her demand the plaintiff have  only one be it not then the constant equity of this court that if a creditor  have two fund he shall take his satisfaction out of that fund upon which  another creditor have no lie vide Clifton v burt Cox p W note Galton v Hancock  ante Martin v Martin Ves suppose a person who have two real estate mortgage  both to one person and afterward only one estate to a second mortgagee who  have no notice of the first the court in order to relieve the second mortgagee  have direct the first to take his satisfaction out of that estate only which  be not in mortgage to the second mortgagee if that be sufficient to satisfy  the first mortgage in order to make room for the second mortgagee even though  the estate descend to two different person vide ante and therefore I be of  opinion that so far as will secure the plaintiff her pound fortune she ought  to be consider as a creditor and entitle to turn the duchess upon the copyhold  and personal estate atkins there be a very strong case of a portion in the  case of reeve versus reeve vern and Ventr where the court proceed upon the  same foundation as I do now a charge land in d with a portion for a daughter  by a first venture and then marry and settle part of these land for the  jointure of a second wife who have no notice of the charge a believe the  portion will take place of the jointure by will give other land in lieu  thereof the wife by combination with the heir refuse to accept the devise  decree the daughter shall hold the land give under the will to the wife till  her portion be pay reeve versus reeve vern the next consideration be as to the  pound yearly maintenance there be no ground as it stand only upon the  settlement to say it can be a charge upon the personal estate but then it may  be likewise put upon the same foot as the portion for as to compel the mother  to maintain her daughter out of her own estate it will be go too far and  therefore I shall lie that out of the case Billingsley v Critchett bro Charles  Rep tubb v Harrison durn and east the utmost this court do be in the case of a  elder brother where it direct the master to make a large provision for he that  he may be enable to maintain his young brother as he be the head of the family  and the housekeeper Petrie v Petrie post vol burnet v burnet bro Charles Rep I  think these be all the point except the question which relate to the stock and  annuity stand in the joint name of the husband and wife at Mr Lanoys death Mr  Lanoy marry his lady at a time she have no portion and make a settlement upon  her in consideration of marriage only by the determination of the question in  Frederick versus Frederick p W the duchess of Athol become entitle to a five  of a five of the father customary estate so that by virtue of the decree she  be let into a very great fortune which be direct to be pay to notwithstanding  be transfer to the husband and wife if do the husband to be sure may have  dispose of it as he please but if he make no alteration she will certain have  be entitle to it on the foot of the transfer but it do not rest there for the  second settlement be make afterward recite that Mr Lanoy in the right of his  wife be become entitle to exchequer annuity and money to the atkins value of  the limitation under it be in strict tail and provision for daughter Mr Lanoy  die in the life of the wife leave the stock and annuity unaltered which in law  be consider as survive to the wife but by the plaintiff counsel it be insist  that though in point of law it survive atkins er p yet by the equity of this  court the husband in consideration of the second settlement be become a  purchaser Blois v Hereford vern Cleland v Cleland Prec Charles Meredith v Wynn  ibidem packer v Wyndham ibidem Carteret v Paschall p W note d Adam v coal can  tempt Talb Garforth v Bradley Ves vide Lister v Lister vern bind v simmonds  post vol salwey v salwey Amb but upon look into the case I own I can carry it  so far as to take it from the mother and give it to the daughter as the  personal estate of the father I believe where the settlement make by a husband  have not be adequate to the wife fortune this court have notwithstanding  decree that he shall have her portion but then all these case be upon  settlement before marriage and I can find it so determine where it be a  voluntary settlement after marriage then apply those authority to the present  case the second settlement be upon a very great accession of fortune to the  wife after she have be marry some time but be by no mean adequate to the  addition for there be nothing new under this settlement except the provision  for the daughter fortune for the jointure to the wife be the same and be no  great upon the husband estate than before now the provision for the daughter  have nothing to do with the general rule of a settlement equivalent to the  fortune the father have with the mother what I go upon be this that here be no  contract on the part of that e wife she be incapable of contract herself  neither have she a father or guardian to contract for her if there have be any  application to this court with regard to the second settlement in Mr Lanoys  lifetime they will have direct the master to see if the husband have make a  adequate settlement and the court will have ask the wife who be of age by way  of analogy to pass the fine whether she consent her fortune shall be settle in  this manner and then the wife will have be bind by such consent and agreement  vide Willats v Cay ante Oldham v Hugh post milner v Colmer p W parson v don  Ves ex part Higham Ves anon Ves Minet v hide bro Charles Rep Dimmock v  Atkinson bro Charles Rep vide etian Fraser v Baillie bro Charles Rep but to  say that she be bind without the intervention of this court or without her own  agreement be carry it too far atkins the case of Adam v coal the husband upon  marriage in consideration of his wife fortune compute at pound agree to yearly  payment to her separate use that she may dispose of pound by will in his  lifetime that if she survive he be to leave her pound apparel plate c part of  her fortune be a bind of pound the husband die have make his will and the  plaintiff residuary legatee but have not recover this pound due on the bind  then the wife die this bind shall go to the representative of the husband he  be a purchaser of it by the settlement on her Adam v coal Cas in Eq in the  time of Lord Ch Talbot before Lord Talbot be indeed a very strong one but then  it be a settlement make after upon a agreement before marriage and Lord Talbot  lie the stress altogether upon its be the express agreement of the party and  for that reason decree for the representative of the husband against the  representative of the wife but in the present case the wife be incapable of  contract be under coverture and what make it a great deal strong be that it  may be collect from the transaction themselves that it be the intention of the  party the duchess shall have this money for Mr Lanoy have the power over the  property of the wife be a very sufficient consideration for what he have do  for the wife on the second settlement and yet he have suffer it to stand  unaltered all his lifetime and even after his death then why shall the court  take it contrary to the intention of the testator from the mother and give it  to the daughter therefore I must decree the master to see what be due for the  plaintiff arrear of maintenance and if mortgage or sell the year term shall  not be sufficient to satisfy the arrear and the then the master to take a  account of the personal and copyhold estate of Mr Lanoy that the plaintiff may  be satisfy there if the real estate shall not be sufficient atkins er p this  case from the register book be thus Mr Lanoy upon his marriage with jane  Frederick now the duchess of Athol and mother of the plaintiff by indenture  date the that and that of January settle his estate in Hammersmith and Fulham  to the use of himself for life and after his decease to the intent that jane  may have a rend charge of pound per annum in lieu of dower remainder to his  heir male remainder to Mr Lannoy in fee in this settlement Mr Lannoy covenant  that if jane shall survive he his heir executor or administrator will pay her  the say pound per annum after the marriage Mr Lannoy surrender some copyhold  estate to the use of his will and in bequeathe the residue and remainder of  all and singular his estate both real and personal whole and sole after pay  his just debt unto the defendant jane and appoint her sole executrix but in  case he shall leave any male issue by the say jane then he give to such issue  his estate at Hammersmith freehold copyhold and leasehold he pay to his mother  pound per annum but if he leave only a daughter then his wife shall pay her  when she marry if it be with her mother consent pound by indenture date the  saint October recite that Mr Lannoy in right of his wife be entitle by her  father death to a large sum of money he in consideration thereof covenant to  levy a fine of the estate comprise in the indenture of that and that January  to the use of himself for life and after his decease to secure the say jane  the say rentcharge of pound for life in bar of dower remainder to trustee for  a term remainder to first and other son in tail male remainder to the heir of  the body of Mr Lannoy remainder to himself in fee the trust of the term be to  raise for daughter portion if no issue male and maintenance at the rate of  pound per annum Mr Lannoy die leave plaintiff his daughter and only child jane  marry the duke of Athol upon the hear of this cause his lordship declare that  the settlement in be a revocation of the will as to the freehold and leasehold  estate comprise in that settlement and as to the legacy of pound bequeathe to  the plaintiff but as to all freehold and copyhold land not comprise in the say  settlement the same belong to jane and her heir by virtue of the say will and  his lordship decree that the defendant jane shall come to a account for the  rend and profit of the premise comprise in the settlement of since the  testator death and the say defendant be in the first place out of the rend and  profit to deduct and retain to her own use pound per annum and in the next  place she be to deduct pound for fine and charge of renew the leasehold estate  and also to retain pound per annum for the maintenance of the plaintiff and  the say defendant jane be to account annual lie for the say rend and profit  and to make the like deduction the plaintiff petition for a rehear show that  account have be take by the master since the decree and he have make his  report whereby it be state that the rend and profit have be yearly deficient  to answer the say pound per annum the say pound per annum and the fine so that  there be a balance due to the defendant of pound which they be to retain out  of the next rend and profit and in consequence of this if the defendant jane  be to live a few year long and such arrear be consider as a charge upon the  freehold and leasehold estate the plaintiff will be deprive of her portion of  pound and also of her inheritance the cause be reheard when his lordship  direct a account of what be due for the say portion of pound and also for the  say rend charge of pound per annum and his lordship direct the estate to be  sell and with the consent of defendant order a value to be set on the say  pound per annum and that the money arise by such sale or sale shall in the  first place be apply to pay the value of the say pound per annum and in the  next place the arrear of maintenance and then the say portion of pound and  interest and in case the money arise by such sale shall not be sufficient to  answer the say pound and interest then the plaintiff be to stand in the place  of the defendant the duchess of Athol to have the benefit of the covenant  contain in the settlement of that January for payment of the say annuity and  by virtue thereof to receive a satisfaction for the deficiency of her say  portion of pound and interest out of the personal estate of her father the say  James Lanoy and if the personal estate shall prove deficient then out of the  freehold and copyhold estate devise by the will for payment of debt Reg lib b  foe atkins er p