case countess dowager OF Warwick and another Appellents Francis Edward and  other respondent that February Mews dig v seven in all case where money be  agree to be lie out in the purchase of land for the benefit of a person and  his heir though such person die before the purchase be make yet if he make no  disposition of the money the benefit thereof shall go to his heir in the same  manner as the land will have go have the purchase be actual make wms Eq can ab  can can Edward earl of Warwick and holland be seize in fee among diverse other  land of the manor of Abbott Kensington and earl court Kensington in the county  of Middlesex a marriage be in the beginning of the year agree upon and  afterward solemnized between he and the appellant the countess dowager and by  indenture of lease and release date the that and that of January in  consideration of the say intend marriage and of pound portion pound whereof  the earl be to receive in hand before the marriage and the remain pound be to  be pay and secure as after mention the say earl Edward settle a jointure of  pound per and and upward upon the appellant the countess for life and also  grant and convey to trustee therein name and their heir the say manor of  Abbott Kensington and earl court Kensington to the use of himself for year if  he shall so long live without in peachment of waste remainder to trustee and  their heir during the life of the say earl Edward in trust to preserve  contingent remainder remainder to trustee for year for raise portion for young  child of the say marriage remainder to the use of the first and every other  son and son of the say marriage successive in tail male remainder to the use  of Lord Cholmondeley Lord Newburgh and Orlando Bridgman since decease for year  upon trust for raise portion and maintenance for the daughter of that marriage  in case of failure of issue male remainder to the use of the say earl Edward  and his heir with the usual proviso for make void the say term of year and  year if there shall be no young child or daughter of the say marriage and with  power to earl Edward of make lease in manner therein mention and after recite  that the sum of pound residue of the say pound the portion of the appellant  the countess remain still to be raise or to be pay by the person entrust to  raise the same by and out of the land late of sir Thomas Middleton bart the  countess father it be by the say settlement declare and agree and earl Edward  for brown himself his heir executor and administrator do covenant with the say  Lord Cholmondeley Lord Newburgh and Orlando Bridgman their executor  administrator and assign in manner follow videlicet that the say sum of pound  or any part thereof shall not be call in or take out of the hand of the say  trustee by the say earl Edward for his own use or disposal but shall with all  convenient speed be receive lie out and dispose not by the say earl Edward his  executor or administrator but by the say Lord Cholmondeley Lord Newburgh and  Orlando Bridgman and the survivor or survivor of they or by such other as they  their executor administrator or assign shall appoint in the purchase of land  and tenement of inheritance within the realm of England not consist of house  situate within any city or market town which land and tenement so to be  purchase shall upon the purchase thereof be settle and limit to the like use  and under the like trust power and proviso to and under which the say manor of  Abbott Kensington and earl court Kensington be thereby settle and limit as  aforesaid and that upon the receipt of the say pound by the say Lord  Cholmondeley Lord Newburgh and Orlando Bridgman he the say earl Edward shall  and will give such a receipt and discharge for the same as by counsel shall be  reasonable advice and if the say pound shall be pay in before a purchase can  be find the same shall not be receive by earl Edward but by the say Lord  Cholmondeley Lord Newburgh and Orlando Bridgman or the survivor or survivor of  they and shall brown er p be by they place out at interest until a convenient  purchase can be find out and the interest and proceed thereof until such  purchase make shall go and be pay to such person and person as shall from time  to time be entitle to the rend and profit of the say manor of Abbott  Kensington and earl court Kensington the marriage take effect and some time  afterward earl Edward die leave Edward Henry earl of Warwick and holland his  only issue by the appellant the countess and there be no young child or  daughter of the marriage the say term of year and year become void after the  death of earl Edward the say earl Edward Henry enter upon and become seize of  the say manor of Abbott Kensington and earl court Kensington in tail male with  the reversion to himself in fee the say pound with pound arrear of interest be  in the lifetime of earl Edward the father pay in to the trustee who no  purchase offer lie out the same on a mortgage whereon the same still continue  the say earl Edward Henry afterward in Trinity term levy a fine of the say  manor of Abbott Kensington and earl court Kensington and by indenture date the  d of may declare the use thereof to himself and his heir the appellant the  countess afterward intermarry with the right honourable Joseph Addison esquire  who some time afterward brown die leave issue by her the other appellant  Charlotte his daughter and only child on the that of August earl Edward Henry  die intestate unmarried and without issue whereupon the say manor of Abbott  Kensington and earl court Kensington descend in feesimple to the respondent  the lady Elizabeth Edward as aunt and heir of the say earl Edward Henry and  the appellant the countess have take out letter of administration to her say  son earl Edward Henry and have also in her custody the say deed of settlement  the respondent bring their bill in the court of chancery against the appellant  the countess and her daughter and also against the survive trustee Lord  Cholmondeley and Lord Newburgh in order to compel the lie out the say pound as  soon as may be in the purchase of land in feesimple to be settle and convey to  the use of the say lady Elizabeth Edward and her heir as she be the right heir  of her nephew the say earl Edward Henry and of her brother the late earl  Edward and that the security for the say pound and the deed and write relate  to the same may be bring before one of the master of the say court and for the  recovery of such part of the interest of the say pound as have incur since the  death of the say earl Edward Henry to this bill the appellant and the survive  trustee have put in their answer the appellant bring their cross bill against  the respondent and the say trustee pray among other thing that the pound and  interest may be raise and pay to the appellant to which cross bill the  respondent have put in their answer both cause be hear on the that of July  before the Lord chancellor Macclesfield who be please to declare that it plain  appear by the settlement of January that the say sum of pound be vest in the  defendant the earl of Cholmondeley and Lord Newburgh upon trust that they  shall with all convenient speed lie out the same in a purchase of land to be  settle to the same use and limitation as the manor of Abbott Kensington and  earl court Kensington be thereby settle and that there have be nothing since  do to alter the say trust and do therefore order and decree that the trust  shall be perform and that the say sum of pound when a convenient purchase of  land can be find out shall be invest therein accord and settle to the use of  the right heir of the say earl Edward Henry and the say pound be then place  out at interest it be further order and decree that the security for the same  and the deed and write relate thereto shall be bring before Mr Edward one of  the master of the say court and it be thereby refer to the say master to take  a account of the interest of the say pound which accrue due in the lifetime of  the say Edward Henry earl of Warwick and holland and also of the interest of  such interest and of what interest of the say pound have accrue due since the  death of the say earl and that what interest of the say pound shall appear to  have accrue due in the life brown er p time of brown he say earl together with  the interest thereof shall be pay to the defendant the appellant the countess  dowager of Warwick but that what interest of the say pound the say master  shall certify have accrue due since the say earl death shall be pay to the  respondent Francis Edward and the lady Elizabeth his wife and it be thereby  further order that the defendant the trustee shall be thereout pay their cost  accord to the course of the court but his lordship do not think fit to give  any cost to the other party from this decree the appellant appeal and on their  behalf it be insist t Lutwyche t reeve that by the fine which earl Edward  Henry have levy the estate tail in the premise comprise in the say marriage  settlement be well and sufficient bar and all the use limitation and  restriction concern the say pound be so effectual destroy or ought to be so  construe in a court of equity that earl Edward Henry after the say fine ought  to be adjudge in equity to be possess of the say pound or at least that the  trustee stand possess thereof in trust for he his executor and administrator  as his own absolute and unqualified property and personal estate free and  discharge from all other use trust limitation and agreement in the say  settlement and that upon his die intestate without issue the same belong to  and ought to be account for and pay to the appellant as his mother and sister  by virtue of the letter of administration and the statute of distribution and  this the rather because earl Edward Henry have a right to demand and have the  say pound without lie the same out in land and there be no estate now subsist  in the manor of Abbott Kensington c under the settlement the agreement for lie  out the say pound in the purchase of land to be settle to the same use have  cease and become absolute determine and not to be carry into execution by a  court of equity and therefore it be hope that the decree will be set aside and  reverse and that the trustee will be decree to assign over the security for  the say pound and interest to or for the benefit of the appellant on the other  side it be say p York W peer William to be the proper province of a court of  equity to compel a specific performance of agreement that in all case where  money be agree to be invest in the purchase of land for the benefit of any  person and his heir though such person die before the purchase make yet if he  shall have make no disposition of the money the benefit thereof shall go to  his heir in the same manner as the land will have go if the purchase have be  actual make and it be the strong in the present case because by the express  word of the settlement it be agree that until such purchase shall be make the  interest and proceed of the say pound shall go and be pay to such person and  person as from time to time shall be entitle to the rend and profit of the  settle estate and the person entitle to those estate and the rend and profit  thereof from the death of earl Edward Henry be the respondent lady Elizabeth  brown Edward that the late earl never make any disposition of this pound or  any part thereof and the fine levy by he of the settle estate be immaterial in  regard he have as good a power before levy this fine of dispose of the say  estate and the pound in money against all but his own issue as he have after  the fine be levy and as he never have any issue the fine make no alteration  that there seem to be no reason to say that because the fine comprise the  manor it therefore comprise the trust of the pound because a fine can be levy  of money or of the trust of money but if it be admit that the fine do extend  to the trust of this pound yet even in that case the use of it be declare to  earl Edward Henry and his heir the respondent lady Elizabeth be entitle to the  manor as his heir at law will for the same reason be entitle to the money and  last that in all doubtful case or construction in a court of equity the heir  ought to be prefer before a administrator or executor and as there be very  many determination in court of equity agreeable to the present decree it be  hope that the same will be affirm and the appeal dismiss with cost accord  after hear counsel on this appeal it be order adjudge that the same shall be  dismiss and the decree therein complain of affirm jour vol p brown er p