case ivy versus gilbert all see mill v bank p wms Haldenby v Spofforth Beav  prece in Chan Eq can ab pl a trust term for raise daughter portion if it  direct a particular method of raise the portion it imply a negative that they  shall not be raise any other way a trust term to raise portion out of rend  issue and profit as well by lease for three life or twentyone year at the old  rend this extend only to raise the portion by annual profit or by lease and  not by mortgage or sale and if the trustee in such trust term mortgage for the  portion the mortgage be void when the portion may have be raise by the profit  Roger pomeroy seize in fee of the capital message call Sandridge and land in  Devonshire do by indenture date that may and by fine pursuant to his  marriagearticle settle the premise in question to the use of he self for life  remainder as to part to his wife for life for her jointure remainder as to the  whole to the first c son of the marriage in tail male remainder to trustee for  year for raise portion for daughter of the marriage on failure of issue male  remainder to himself in fee peer William the trust of the term of year for  daughter portion be that the trustee shall raise and pay out of the rend and  profit of the premise as well by lease for one two or three life or for any  number of year determinable thereon or for twentyone year absolute at the old  rend pound for daughter portion to be pay to the only daughter of the marriage  if but one and to be divide among they if more than one there be but one child  by the marriage that live and that be a daughter call Joan who marry Humphrey  Gilbert the defendant gilbert father but the portion be not pay on the  marriage nor raise till after the father death Roger pomeroy the father who  have make this marriage settlement and upon which he have reserve the fee to  himself have no son and have a nephew of his name Hugh pomeroy peer William er  p by indenture of lease and release date that and that may settle the  reversion in fee expectant on his own death without issue male and subject to  the term of year to the use of trustee for ten year remainder to his nephew  Hugh pomeroy for life remainder to his first c son in tail male remainder to  John Gilbert son of his daughter Joan for life remainder to his first c son in  tail male remainder to himself in fee the trust of the ten year term be that  in case his soninlaw Gilbert and his wife will release the pound portion  secure by the year term then the peer William trustee of the ten year term  shall raise pound videlicet pound of it to be lie out in a purchase of land  for the benefit of the soninlaw and daughter Joan and pound residue of the  pound to be pay to his soninlaw himself in July Roger pomeroy the father die  without issue male leave his grandson the defendant John Gilbert his executor  but his daughter Joan portion have not be yet pay though she have be long  marry upon the death of Roger pomeroy the father his nephew Hugh enter by  virtue of his estate for life give by the voluntary settlement subject to the  year term for daughter portion but for four year afterward the daughter  portion be unpay and the say Hugh pomeroy all the while in possession in  application be make by the family to the plaintiff father to advance the pound  be the daughter Joan portion on the assignment of the trustterm for year  create for the raise thereof who be advice this be a good title be a absolute  term advance the money to the defendant own father for his mother portion  accord by indenture the that may the defendant father Hugh Gilbert and his  mother Joan to who the portion be due and who have take administration to the  survive trustee of the year term and the remainderman Hugh pomeroy the nephew  join in assign the year term to the plaintiff father Jonathan ivy October Hugh  pomeroy the nephew who have the remainder for life subject to the year term  for raise peer William daughter portion die without issue male have enjoy the  premise from the death of his uncle Roger pomeroy to his own death and leave  Daniel pomeroy his executor but leave no asset upon the death of Hugh pomeroy  the nephew the defendant John Gilbert enter and take the profit and upon the  plaintiff the mortgagee bring a bill of foreclosure the question be whether by  the word of this trust the portion can be raise by mortgage or any other way  than by annual profit or lease object for the plaintiff saint that here be a  honest mortgagee and the term of year a subsist term in law that the defendant  claim under a voluntary settlement and the power to raise the portion be by  rend issue and profit the word profit when not express call annual profit have  be frequent understand to signify any profit that the land will yieldeither by  lease sell or mortgage that the word as well by lease c be only additional and  not restrictive and if the portion be to be raise only by lease then it can  not be raise by annual rend until lease that to say all the profit shall be  apply to the portion during the life of Hugh pomeroy who be the remainderman  for life will be a great and undesigned hardship upon Hugh pomeroy by defeat  he of the whole benefit of his estate for life it will be to starve the tenant  for life and this for the benefit of a remote remainderman who be to have  nothing until after the death of the tenant for life without issue male which  be a construction against all rule of equity peer William as if one be to  devise land for the payment of debt and afterward to a for life remainder to b  in fee here though a s estate will be only after debt pay yet shall he not  bear the whole burden of the debt in regard this will entire defeat the devise  as to he which will be to destroy part of the will but especial it will be  hard in this case consider Roger Pomeroys chief regard seem to have be for his  kinsman Hugh pomeroy who be both of his name and blood and who may well be  think to have be name by he first in the will with a intention of prefer he to  the person to who the subsequent limitation be make and as this will be a  hardship on the tenant for life to pay it out of the profit so on the other  hand it will be prejudicial to the daughter to receive that portion by driblet  which ought to be advance at once and in a gross sum on her marriage dly it be  observe that a child claim a portion be favour in equity even peer William er  p as much almost as a creditor nay that here the daughter be actual a  purchaser of her portion it be in consideration of a marriage and the mother  portion and therefore if the word will any way bear it the court shall assist  it with the most favourable construction consequent as the word profit will  extend to a mortgage it shall be take in that sense and the rather where the  next limitation in the settlement to the term for secure the portion be a  remainder in fee to the heirsatlaw of Roger pomeroy who make he settlement and  if on the death of Roger pomeroy the heir have enter and take the profit these  profit so take by the heiratlaw will never have peer William go in discharge  of the portion that if the heiratlaw can never have defend himself against the  daughter to who the portion be due so neither can the person under the second  settlement forasmuch as they claim so neither can under the limitation to the  heiratlaw dly it be insist that the sense be imperfect videlicet the trust of  the term of year be to raise the portion out of the rend issue and profit as  well by lease the premise for one two or three life or for any number of year  determinable on one two or three life or for twentyone year absolute reserve  the ancient rend so that there be nothing to answer these word as well no  correlative vide ante p now the word understand may be to raise the portion by  rend and profit as well as by lease and the word as well as by lease be usual  insert in case of western estate where fine be common raise by lease the same  may here have be use in mayor caution to empower the trustee to make lease  notwithstanding that the general word videlicet profit include that power and  it be common to say in those kind of settlement in trust to raise the portion  by rend issue and profit or by sale lease or mortgage though all this have be  before imply by the word profit last it be represent as very hard for a court  of equity to decree the loss of a honest debt in a case where such debt will  be safe at law and to put the mortgage to follow the personal asset of Hugh  pomeroy the remainderman for the payment of high debt especial when the  executor of Hugh who be make a party to the suit have deny asset and as peer  William to the subsequent settlement this can not alter or prejudice the  former security make by the first settlement for the portion Lord chancellor  it will be very material to know the yearly value of the premise charge with  this portion in order to see within what time the portion can be raise though  it seem as if the second settlement make by Roger pomeroy have create a term  of ten year only of the premise for secure pound the party think that the same  will in a reasonable time be a proper fund or security for the raise of this  lesser portion of pound I take it to be a rule that where a trust of a term  for raise portion for daughter do direct a particular method for raise they it  imply a negative that they shall not be raise any other way and when the trust  of the term in the present case be to raise the portion by lease for one two  or three life or for any term of year determinable upon one two or three life  or for twentyone year absolute it shall not be raise by any other way and it  be considerable that even by this way videlicet of lease it can not be raise  but by make such lease upon which the old rend be reserve the natural meaning  of raise a portion by rend issue and profit be by the yearly profit but to  prevent a inconvenience the word profit have in some vide the case of Trafford  v Ashton vol particular instance be extend to any profit which the land will  yield either by sale or mortgage but where there be subsequent word to explain  and restrain it as by lease I have not hear of any case which have say that  any other method shall be make use of for the raise of it so Evelyn v Evelyn  post mill v bank post vol okeden v okeden atk more small v wing bro p c Gibson  v Roger Amb peer William it be as much the intent of the settlement to confine  the manner of raise this portion to lease as to secure any portion at all and  consequent it will be a plain breach of trust to raise it any other way and at  the time of make this settlement which be in I do not think that the word  profit be extend to signify the profit which may be make of land by sale or  mortgage here be no time a point for the raise of this portion and therefore  the portion in this case be due when the profit can raise it and it carry no  interest but when peer William er p the sum of pound be or may have be raise  by the profit then it become due and the land be discharge as have bear its  burden see for this in the case of Evelyn v Evelyn post the profit receive by  Hugh pomeroy be as receive by the mortgagee ivy because it be say in the last  clause in the mortgagedeed that it shall be lawful for Hugh pomeroy to take  the profit without account until default of payment so that he by this clause  be tenant at will to the mortgagee which make it to be the same thing as if  the mortgagee have let it to any other person therefore this mortgage make to  the plaintiff be not pursuant to the trust and so much of the profit as have  be receive must go towards the payment and sink of the portion only here have  be a power of lease and the intention have be to charge the land as far as may  be let the master see how far the land may have be charge by lease and whether  any life be vacant and reserve peer William the consideration how far the  estate shall be Chargeable thereby and let the representative of Hugh pomeroy  pay the mortgage money and interest as far as the asset will extend this  decree be afterward affirm in the house of ford though think a very hard case  bro p c bro p c and ed in bro p c bro p c and lead where this case be very  accurate state the word as be use instead of or but in Reg lib a fol the word  be upon trust to raise and pay out of the rend and profit of the say premise  and by lease thereof far one two or three life c or for year