atkins case chancy and other versus Graydon and other July see in re Cresswell  Ch d where there be a condition annex by a will to devise of real or personal  estate and no notice require to be give unless the legatee perform the  condition they can be entitle and where there be a devise over all forfeiture  incur see Hervey v Aston ante vol and the note at the end of that case the  question in this cause arise upon the follow will Rene badovin by will date  the d of June do constitute his nephew Gabriel Tahourdin and three other  executor and among several bequest give pound Southsea stock to his executor  in trust to pay the yearly dividend and profit thereof to his brother Claude  badovin during bis born all life and from and after his death in trust to pay  the say pound Southsea stock among the seven child of his nephew Gabriel  Tahourdin in the manner and p rolortion therein after direct and appoint  concerning pound Southsea stock by he herein after devise to and for the use  and benefit of the say seven child of Gabriel Tahourdin and do thereby also  give to his say executor pound Southsea stock in trust to transfer pound  thereof to each of the seven child of his say nephew Gabriel Tahourdin to wit  Elizabeth Gabriel mary be Dorothy Peter Cassandra at their respective age of  twentyone year or day of marriage they marry with the consent of the say  Gabriel Tahourdin the father or his executor or the survivor or survivor of  they to be testify by their subscribe their name to the marriage article or  settlement of the say child as witness or by be party thereto and execute the  same and in case any of the say child shall die before twentyone or shall  marry without consent as aforesaid then and in such case his will be that the  share or share in the say pound of such child or child as shall die or marry  without consent as aforesaid shall go and be transfer share and share alike to  the other of the say seven child at twentyone or marriage with consent as  aforesaid and do thereby direct that his nephew Gabriel Tahourdin shall  receive and enjoy to his own use the yearly dividend and profit of the  respective proportion of his say seven child in the say pound until their age  of twentyone or marriage as aforesaid the testator die soon after his brother  be likewise dead and Gabriel Tahourdin the nephew of the testator be dead  Cassandra marry the defendant Graydon July without consent and Peter marry the  day after without consent Gabriel junior arrive at his age of twentyone but  die before the forfeiture be incur by his sister Cassandra or his brother  Peter marriage without consent note mary marry chancy Elizabeth small and  Dorothy western these be either marry after or with consent atkins the bill be  bring by the person who have marry the other child of Gabriel Tahourdin the  elder with consent to be let into their respective share forfeit by Cassandra  and Peter Mr solicitor general counsel for the plaintiff one point make by the  defendant in their answer be that the executor may still consent but he say  the case of fry versus porter vent be direct contrary for at the time of the  marriage only Reynish v Martin post vol the consent must be give because then  it must atkins er p immediate go over to the other child if without consent so  that the executor upon consent afterward can bring a bill to take it from the  other child Wrottesley versus Wrottesley June vide ante be almost in point but  beside the executor do not say that they approve of it now from the moment of  the child marry with consent or arrival at twentyone they be entitle to the  capital and then there be a end of the dividend so that the produce of the  stock in the father hand can make a fund for the benefit of the child as part  of his personal estate nor will the defendant be entitle to a share of this  produce for this be certainty give only in lieu of maintenance and from the  death of the father the interest must follow the same fate with the capital Mr  attorney general counsel for Peter Tahourdin the first marriage without  consent be by Cassandra the second be by Peter it be insist by the plaintiff  that Cassandra and Peter have forfeit their share in the pound and pound  Southsea stock the question then be whether Peter have forfeit or not there be  a fact which the gentleman on the other side have industrious omit videlicet  that the executor do not give he any notice of the condition and though it be  determine in fry versus porter not to be necessary yet that be because real  estate be forfeit and it be the law say there it be not necessary and  therefore in that case a person must bring himself within the term but I do  not recollect it have ever be determine so where personal estate have come in  question for then it be in the nature of a legacy and must be govern by rule  of the civil law where the whole vest in the executor they ought to give  notice for where there be legacy in a will they be bind to pay they though not  demand atkins Mr brown on the same side Thewords manner and proportion in the  first clause may have another construction than to extend in general to both  clause and if it can be construe to any other sense the court will incline to  it as forfeiture be not favour and that the testator do not intend to involve  the pound with the pound he argue that Gabriel Tahourdins though it be a  contingent interest in these forfeiture yet be transmissible to his  representative as he live to be for a possibility be assignable in equity and  the defendant in that light be entitle for there be no case that make it  necessary for the person who to a contingent interest to be live when it take  place vide king versus wither case in Lord Talbot time Corbet versus palmer  Feb and Pinbury versus Elkin p wms do thereby also give to his executor pound  Southsea stock in trust to transfer pound Southsea stock to each of the seven  child at their respective age of twentyone year or day of marriage they marry  with the consent of c as this be give Payable at a future time these two  different period must be consider separate and relate only to the transfer  either at twentyone if that happen first or on the day of marriage if that  happen first Garbut v Hilton ante vol and though there be a marriage without  consent yet it be Payable at twentyone afterward if they live to arrive at  that age Mr Chute for mrs Cassandra Graydon this be a mere legacy and not give  by way of portion for the testator be not oblige by a debt of nature to  provide for they and therefore ought to be govern by the rule of the civil law  which discourage forfeiture especial with regard to the pound to which there  be no forfeiture annex Mr solicitor general in reply say that the word manner  and proportion have two different construction the word proportion relate to  the share both in the pound and the pound and the word manner relate to the  time when it become Payable videlicet the arrive at twentyone and the marriage  with consent accord to the rule that word relata to be in to see as to what  have be insist on with relation to Gabriel junior that a share in the fortune  forfeit by Peter and Cassandra vest in his representative it be impossible it  can take place for Cassandra and Peter both marry before twentyone without  consent and on such marriage it be give over immediate so that their fortune  be forfeit before the time of vest come and be therefore absolute go atkins  Lord chancellor several question have be make at the bar first whether there  be any forfeiture at all second what will be the extent of it atkins er p  three what share the party claim under the forfeiture be to take now as to the  first it be extreme plain there be a forfeiture incur by a marriage without  consent or otherwise this case will not be consistent with the rest of the  case on this head the only excuse attempt to be make be that the defendant  have no notice of the condition in the will ofBadouin I shall lie this out of  the case for where there be a condition annex by a will to a devise of real or  personal estate and no notice require to be give nor any person oblige to give  notice there the legatee must perform the condition or can be entitle and if  they do not where there be a devise over a forfeiture incur nor in the reason  of the thing do I see any difference at all between real and personal estate  and therefore where nobody be bind to give notice the party must themselves  take notice it be say the executor shall have give notice but the testator  have lie no such obligation upon they neither do the executor take any  beneficial interest whether the condition be perform or break the second  question be what will be the extent of the forfeiture whether the forfeiture  be confine only to the or by relation extend to the pound likewise this be not  quite so clear but I be however of opinion that the forfeiture extend to both  nor can I make any other construction without contradict the testator own  intention and make the court contradict themselves for the testator put the  two sum in different clause be on account of the gift of the produce of the  pound stock to his brother during his life or otherwise he will have throw the  whole into one clause the original proportion will have be a division into  seven but be different when one or two or more of the devisees marry without  consent and therefore the proportion arise and be to be regulate by the  several contingency as they happen atkins the word manner as have be right  argue take in every thing suppose a estate be limit to one for life and to b  on certain condition and restriction and to c in form predicta this will take  in every condition and restriction in the precede limitation to b this  expression may be find in conveyance even to this day but very common in  admittances to copyhold the three question will be what be the share and  proportion the several party claim under this forfeiture be to take mrs  Cassandra Graydon be marry on the that of July and Peter the next day it be  insist by Peter counsel that he be entitle to a share in Cassandra forfeiture  it will be very extraordinary that Peter by marry without consent shall  forfeit his own fortune yet take advantage of the very same offence in his  sister which he have commit himself see the clause in the will beginning with  and in case any of the say child shall die c the share or share c what be the  meaning of the word share or share why the whole that the child shall be  entitle to as well the original as the contingent portion shall go and be  transfer c and this bring it to the case of Mr bendish in Wrottesley versus  Wrottesley where I determine in the same manner on the word portion which be  not at all more general than the word share in the present case and do thereby  also give to his say executor c in trust to transfer c to be at their  respective age of twentyone year or day of marriage they marry with the  consent c it be say this be a condition not annex to the age of but confine to  the day of marriage only but if they marry without consent before the  condition be break and it be the intention of the testator that there shall be  no new time which shall arise but the legacy to be absolute go therefore this  make a forfeiture of the whole avoid the absurd construction that they may  take advantage of the very same breach of condition which they have be guilty  of themselves atkins as to the point relate to Gabriel I be of opinion as he  attain his age of that it vest in he notwithstanding he die before the  contingency of his brother and sister marry without consent happen and  therefore his representative be atkins er p equal entitle to a share of the  forfeiture with the other child as that fact have take place and the die  before make no difference for where either real or personal estate be give  upon a contingency and that contingency do not take effect in the lifetime of  the first devisee yet if real his heir if personal his executor will be  entitle to it for though in law a possibility be not assignable yet in equity  where it be do for a valuable consideration it have be hold to be assignable  and transmissible to the representative of devisee vide Higden versus  Williamson p wms see Bates v Dandy ante Lord chancellor declare Chauncy and  his wife be entitle to one five part of the portion so forfeit western and his  wife to another five small and his wife to another five note be to one other  five and Elizabeth small to one other five as administratrix to Gabriel the  son subject to be distribute as part of the personal estate of Gabriel  Tahourdin the son and one of the defendant the executor of Gabriel the young  to another five the share of Gabriel under the will note and as to the  proportion of the forfeit share so vest in the say administratrix of Gabriel  Tahourdin the son his lordship say must be divide into six share and the  forfeit child must take equal in this with the other Reg lib a fol