case lucius henry carry Lord viscount Falkland son and heir of Edward carry a  infant by his guardian plaintiff james bertie and Elizabeth his wife sir  William Whitlock John grout and other defendant Jan Eq can ab pl salk Freem Ch  can S c one devise land to trustee and their heir in trust to pay such of his  debt and legacy as his personal estate shall fall short to pay then in trust  for his niece Elizabeth his heir at law for her life in case she within three  year after his death shall be marry to the Lord Guildford remainder to her  first c son by the Lord Guildford in tail male in default of such issue or in  case the say marriage shall not take effect within the three year then in  trust for the Lord Falkland for life remainder to his first c son in tail male  remainder to his own right heir the niece marriage with the Lord Guildford do  not take effect and after the three year she marry Mr bertie with the trustee  consent this be a condition precedent and equity can relieve against the  nonperformance John caryi of Stanwell Esq have neither wife nor child and the  defendant Elizabeth now the wife of Mr bertie be his niece and heir at law on  September he make his will and thereby devise his manor of Stanwell and  diverse other manor and land be his own real estate except his manor of  Caldicot which he thereby give to his kinsman Edward caryi to grout hall and  Whitlock and their heir upon trust inter all to pay what debt and legacy his  personal estate shall not extend to satisfy and then in trust for the  honourable Elizabeth Willoughby the defendant his cousin and heir in case she  shall within three year after his death be marry to Francis Lord Guildford for  her life and after her death in case such marriage be have to the old son of  the Lord Guildford on her body to be beget and to the heir male of the body of  such son and for default of such issue to all Vernon chancery case er p other  the son of the say Elizabeth by the Lord Guildford in tail male and in default  of such issue or in case such marriage shall not take effect within the say  three year then in trust for Anthony Lord Falkland for life and to his first  and other son in tail male in default of such issue in trust for Edward caryi  the plaintiff father for life Vernon chancery case and to his first and other  son in tail male and in default of such issue in trust for the right heir of  the say John caryi the testator and devise to his trustee the leasehold  subject to the same trust as be declare concern the freehold and devise to  they his household good at Stanwell that the same may go and be for the  benefit of such person who by virtue of his will shall be entitle to his house  vide Richard all v lady bergavenny ante p Offley v Offley pre Ch September he  make a codicil only direct some other legacy the that of the same month he  make another codicil recite that by his will he have appoint the trust of his  real estate to be for the benefit of the honourable Elizabeth Willoughby  Vernons chancery case in case she shall within three year after his decease be  lawful marry to the Lord Guildford now his will be that if the say marriage  shall take effect before year of consent and if not afterward when of a  competent age ratify the say Elizabeth Willoughby shall have no benefit of the  say trust other than she shall have have if the marriage have be never  solemnize and devise the tuition of his niece to the lady wiseman the Lord  guildford sister and soon after die the marriage between the Lord Guildford  and Elizabeth Willoughby do not take effect within the three year and after  they be elapse she intermarry with the defendant Mr bertie have first by her  trustee come to a agreement with Anthony Lord Falkland and Edward caryi the  plaintiff father that they on the term agree on shall permit her to enjoy the  estate but they be both but tenant for life and since dead the plaintiff the  son and heir of Edward caryi bring his bill claim the benefit of the trust  demand a account of profit and a conveyance of the legal estate from the  trustee Mr bertie and his wife have also bring their bill to the like effect  this cause be hear by the Lord chancellor summer assist with the two chief  justice and this day be appoint for the delivery of their opinion Lord chief  justice Treby I take this will to be design by the testator for a final and  fix settlement of the estate and although Elizabeth Willoughby be his niece  and heir at law yet the Lord Falkland be of his name and blood though not  altogether so near relate to he as the defendant his niece and heir at law and  it appear likewise in the case that the testator be relate also to the Lord  Guildford by marriage but not in blood Vernon chancery case first he be of  opinion that the defendant Elizabeth be Willing and consent or endeavour to  bring about the marriage will not be of any avail or moment in this case for  that the will be form not upon the endeavour or agreement of the party to  marry but upon the event if a marriage shall he have accord to the will then  his niece be to have a estate for life and so to first and other son of Lord  Guildford on her body beget but be to take nothing by the will unless the  marriage be actual have and this appear more plain by the codicil whereby it  be provide that although a marriage shall be so far proceed in as to be  solemnize between his niece and the Lord Guildford infra aged nubile yet  unless afterward confirm when both of age capable to contract marriage for by  law until both be of competent age that be the man fourteen and the woman  twelve either of they be at liberty to go off from such marriage such marriage  be not to be reckon a marriage within the intention of the will nor will his  niece take any estate thereby but where covenant that a be then infra aged  nubile shall marry before such a day and the marriage be have and after at the  age of consent a disagree to the marriage yet the marriage be a performance of  the covenant Fenners case Owen so leigh and hanner case leo et vide   Litt  grey case die Rep b he observe Mr bertie counsel seem to be a little at a loss  what relief what conveyance to ask from the trustee whether a fee or a estate  in tail male to Elizabeth and her first and other son by Mr bertie or whether  to content themselves only with a estate for life in the determine and judge  upon this case he be of opinion first that no regard be to he have to the  greatness or quality of the person the rule the divine lawgiver lie down be  that there shall not be any respect even to the poor in judgement much less to  the Richard Vernon chancery case second that all the parole proof on both side  be to be reject and throw out of the case that be to say the declaration of  the kindness the testator have for his Vernon chancery case er p niece the  defendant and that she be his heir and he will not disinherit her and the like  c and the great uncertainty there be of proof in this case show how necessary  it be to make the statute against fraud and perjury and such evidence will  have be reject even before the stat per holt Ch just post the case therefore  must be determine as it stand upon the will and consequent to enter into a  enquiry what regard he have to his niece how far he consider the Lord  Guildford either in point of affection or in gratitude for good office receive  or by reason of affinity by marriage or the like be not material nor necessary  to know and it may be it be not possible now to know what induce he to limit  his estate in the manner as by his will be express but he have do it we must  agree with the Lord dyer that man deed and will by which they settle their  estate be the law that private man be allow to make and they be not to be  alter even by the king in his court of law or conscience we must take it as we  find it and that be so thus far his intention plain appear that his heir shall  not have his estate unless she marry with the Lord Guildford and likewise that  neither the Lord Guildford nor his issue be to have any benefit by it unless  he marry his niece and the condition which be a condition precedent not have  be perform the marriage not have take effect it be plain that the estate by  the letter of the will be go over to the Lord Falkland and the trust of the  estate vest in he all that remain be whether a court of equity can relieve in  this case and in what manner Vernon chancery case first the defendant  Elizabeth can have the inheritance for if she have perform the condition in  the will she be to have have but a estate for life with a remainder to her  first and other son by the Lord Guildford and she must not have a great and  better estate by not perform than she can have have in case she have perform  the condition second if she can be entitle to the inheritance yet it have be  insist on by her counsel that she ought to have a estate for her life and to  her first and other son in tail male by Mr bertie for that it be not through  her default that the marriage with the Lord Guildford be not accomplish and  that she have equitable perform the will by marry a person equal in quality  and estate to the Lord Guildford and this they call a performance of the  condition cypress that she have go as far as be in her own power and cite the  case of Popham and bampfield Vol case where the court relieve upon a  equivalent as a precedent to suit this case but that case be not like this and  they run upon a plain mistake in say that they come to be relieve against a  forfeiture and that the testator by his will principal intend the advancement  of his niece whereas the will be make in derogation of her right as heir at  law and although the testator may be Willing and it will be agreeable enough  to he if such marriage take effect yet he handle that matter with some  indifferency for he do neither enjoin his niece to marry the Lord Guildford  nor so much as recommend to either party but leaves they at their liberty but  if the marriage take effect the estate be to go accord if not the estate be to  go to those of his name and blood if they shall marry they be to take the  estate it be give to they Vernon chancery case in the conjunctive to neither  of they several there be no latitude leave for her to choose another mark it  be not a case in compensation it be not capable of a equivalent to answer the  will of the testator nor can as apprehend a court of equity relieve or decree  even a estate for life to the defendant unless they can decree Mr bertie and  the Lord Guildford to be the same person Lord chief justice holt be of the  same opinion that the bill ought to be dismiss and first be clear of opinion  that all the parole proof as to what the testator either declare or intend be  to be disallow and the case must stand confine to the will and be to be  consider as it stand upon the will alone and must have be so even before the  make of the statute of fraud and perjury vide note to tower v more ante p for  by the statute of will by which man be enable to make will and devise their  land it must be a will in write and shall parole proof be admit it will  introduce a mighty uncertainty and a infinite inconvenience the last will of a  man be look upon as the last serious act of his life as to the disposition of  he estate and must be admit sufficient to repeal all former will and much  Vernon chancery case er p more to control all parole declaration vide fane v  fane ante Vol and case cite in note p Bromley v Jeffereys pre Ch post S c it  be plain a condition precedent in case of condition subsequent that be to  defeat a estate those be not favour in law and if the condition become  impossible by the act of God the estate shall not be defeat or forfeit and a  court of equity may relieve to prevent the divest of a estate but can relieve  to give a estate that never vest the case of fry and porter I Mod be much a  strong case and more proper for relief the condition there be to be perform by  a infant and a infant too that have no notice of the condition in the will in  the case of the earl of Montague and earl of bath Freem Rep there the duke of  Albemarle who make the settlement and have reserve a power to revoke yet have  tie himself Vernon chancery case to strict term as to the manner and  circumstance of do it although by his last will make in a very solemn and  deliberate manner he sufficient express his intention and resolution to revoke  it yet the court will not relieve in that case and if the party himself who be  master of the estate and may have dispose of it as he please be to be tie down  to the term and circumstance he have impose upon himself those that claim or  derive under he those to who he give a estate upon term and condition must  stand much more oblige to the performance of the condition and circumstance  upon which it be give and if the condition become impossible even by the act  of God as in case the Lord Guildford have die within the three year or soon  after the death of the testator he be of opinion the estate will never arise  there will be no relief even in that case much less be there any room for  relief in the case in question query as to condition subsequent vide   Litt a  b Popham v bampfield ante vol p on the will the testator intention be plain  and express that his niece shall not have the estate unless the marriage take  effect a actual marriage be plain by he intend upon the face of the will and  by his further declaration in the codicil put beyond doubt the prospect that  such marriage may take effect seem to be the only consideration that induce he  to give the estate in such a manner as he have do it appear by the proof in  the cause that he have a real kindness and affection for the Lord Guildford  and as he have a kindness and affection for his niece so it likewise appear he  be desirous to preserve the estate in his name and family and whereas it be  object that the heir at law be to be favour that may hold where the word be  ambiguous or doubtful there shall be no strain construction to work a  disherison but where there be no doubt no ambiguity the plea of heirship must  not control a plain and express will vide city of London v Garway post Vernon  chancery case and it be very vain what have be pretend that he do not intend  to disinherit his heir when the whole frame and intent of the will be to  prevent the descent and that she shall not take as heir and it be likewise as  vain to talk of a equivalent although the lady may be as well prefer or  advance in marriage to Mr bertie that be no equivalent to the testator who  have a affection for the Lord Guildford and be for ought appear a utter  stranger to Mr bertie and be mind his niece shall marry the Lord Guildford it  be in truth no more a equivalent than it may be pretend to be a performance of  the condition and it will be hard to maintain that where a estate be give upon  condition that the niece marry one man to say that she have perform that  condition not in marry he but in marry another man and conclude that if it be  a rule in equity that estate ought eastern go accord to the will of the dead  he must advice the Lord chancellor to dismiss the bill but if this court can  alter will it may be proper to relieve the plaintiff in the cross cause Lord  chancellor concur in opinion with the two chief justice and observe that it be  plain a condition precedent for that by the will the three year profit after  the decease of the testator be to be apply to pay the debt so nothing descend  in the mean time nor vest and there be no ground to maintain what be offer  from the bar that this shall be deem a condition subsequent or to divest a  estate and observe there can not be strict word to make a condition precedent  than what be insert in the will and his intention be manifest that his niece  shall take nothing as heir unless there shall happen to be a failure of issue  male of the Carys but in case his niece marry the Lord Guildford then he  prefer her and she be to take Vernon chancery case before the Lord Falkland  and the rest of his name and blood but if such marriage be not have then the  Lord Falkland and those of his name and blood be prefer to her Vernon chancery  case er p if Lord Guildford have intermarry with her and have die without  issue male it be plain that neither her daughter by he nor any issue male of  she by any after take husband can have become entitle to the estate by the  devise in the will as to what have be say of its be a hard limitation and that  be in the case of a trust there be a great latitude of expound in a court of  equity to correct the rigour of a devise vide in the case of a charity  attorneygeneral v Reg professor in Cambridge ante Vol limitation of estate  whether it be by way of trust or by estate execute at the commonlaw be to be  govern by the same rule and it be much better that a estate shall be carry  from the heir by a hard or imprudent disposition than that the court in  westminsterhall shall take upon they to vary from the intention of the  testator express in his will and as to the plea of infancy it be true infant  be always favour in this court there be several thing that belong to the king  as pater father and fall under the care and direction of this court as charity  infant idiot lunatic c afterward such of they as be of profit and advantage to  the king be remove to the court of ware by the statute but upon the  dissolution of that court come back again to the chancery where the interest  of infant be so far regard and take care of that no decree shall be make  against a infant without have a day give he to show cause after he come of age  a infant may by his prochein Ami call his guardian to a account even during  his minority so he may file a bill for a account against a stranger Gundry v  Baynard post et vide Newburgh v Bickerstaffe ante Vol if a stranger enter and  receive the profit of a infant estate he shall in the consideration of this  court be look upon as a trustee for the infant and the like but the court  never Vernon chancery case pretend to change the nature of infant estate or to  make that absolute which be defeasible where a estate be give to a infant upon  a condition such act as a infant can perform must be do by he and infancy in  such case be no excuse and so it be hold in that case of fry and porter which  have be cite this doctrine be more general lie down by coke Inst b where he  say regular no laches shall be account to infant for nonentity or claim to  avoid descent yet laches shall be account in they for nonperformance of a  condition annex to the state of the land for the laches of a infant for not  perform of a condition annex to a state either make to his ancestor or to  himself shall bar he of the right of the land for ever et vide ibidem  Whittinghams case Rep b Slade v tomson Bulstr Holford v Platt cro James and  further as to act by which infant may be bind vide case cite in note to  franklin v Thornebury ante Vol the case of Popham and Bamplield have no  resemblance to this case for here can be no equivalent the nature of this  condition be not in point of value but on a collateral act to be do and as to  the case of the earl of Salisbury which be cite there be a performance of the  condition in substance and there be no express devise over of the pound in  case the countess then mrs Bennet do not observe the circumstance prescribe by  the will as to her marriage ante vent SC and note in the report in Ventris the  devise over be to the executor and there say it be not to be consider be no  more than the law imply and so likewise the case of Ventris and glide on sir  Nich Staughtons will the consent of the aunt be ask and she do not absolute  refuse but pretend she be come to town and be a suitable match and all other  relation consent the consent of the aunt be what she ought accord to the trust  repose in her to have give application be make to her on that behalf and  beside the ant consent there be trustee as to the portion until the daughter  attain twentyone and the condition of consent be take to have relation to the  term only to their marry in their infancy and there the daughter have attain  twentyone before her marriage and therefore upon the whole matter he be of  opinion first that mrs bertie have no pretence to claim the absolute fee and  inheritance of the land in question it will be very absurd to say she shall  profit by disobey and that she shall take a great and better estate by not  perform than she can have have by the performance of the condition Vernon  chancery case second nor can her claim of have a like estate or a conveyance  cy pres videlicet to her and her issue by William bertie as it will have be to  her and her issue by the Lord Guildford if the marriage have take effect be  any way maintain or support either by precedent or reason unless Mr bertie can  real become the Lord Guildford three as the condition be the performance of a  collateral act and do not lie in compensation he do not see any thing that can  be a just ground for relief in a court of equity or to give mrs bertie even a  estate for life unless the remainderman who be to take the estate on  nonperformance of the condition have use any indirect practice or contrivance  to prevent the marriage from take effect it seem to be a general principle of  law that no one shall take advantage of the nonperformance of a condition who  be himself the cause of its not have be perform   Litt b and on the subject of  condition general vide case cite in note Popham v bampfield ante vol and  dismiss the bill of Mr bertie and his lady and in the other cause decree the  trustee to execute conveyance accord to the trust to the Lord Falkland c note  this cause be afterward upon a appeal to the house of lord in parliament end  by compromise say salk SC to have be reverse the account of the fate of this  appeal be contradictory the underwritten be state from the journal of the  house of lord journal vol p resolve that the appellant have relief and that  mrs bertie do enjoy the estate for her life and order accord that the trustee  sir wm Witlock and I grant and their heir do forthwith convey all the manor c  of John Carey devise to they so that they may be assure to Elizabeth bertie  the appellant for life remainder to Lord viscount Falkland and the heir male  of his body remainder to the right heir of the say John Carey for ever and  that there shall not be any account of the profit of the premise for the time  pass and that Mr Carey good shall go accord to his will and that so much of  the order of dismission of appellant bill and of the decree on behalf of Lord  Falkland as be contrary to this judgement be reverse et vide Colles p c Vernon  chancery case er p