case sir edward Seymour appellant dame letitia Seymour and other respondent d  February a on marry a second wife settle land to himself for life remainder to  the wife for life for jointure remainder to the issue male of the marriage  remainder over this settlement be defeazanced by a proviso that if a or his  heir shall within year next ensue settle other land of equal value to the same  use then from and after such settlement the use before declare shall cease and  the trustee shall stand seize to the use of a his heir and assign a live year  afterward but make no settlement the old son and heir of a within a year after  his father death claim the benefit of this proviso and he be hold to be  entitle to it on make a settlement of land accord this like too many other  case in this work seem entire of a private nature and to have depend upon  compromise and consent so as to form no general precedent prior to the  marriage of sir Edward Seymour with dame Margaret his first wife the appellant  father and mother which take effect in the year sir Edward in consideration of  pound I the lady portion settle the manor of maidenbradley in the county of  wilts and other land to the use of brown himself for life remainder to dame  Margaret for life for her jointure remainder to the issue male of the marriage  with other remainder over after the marriage and during the life of dame  Margaret sir Edward have occasion to make a security out of this estate for  pound which he owe prevail with his lady to join with he in make such security  upon a promise that he will resettle the estate to the same use as before  subject only to that encumbrance accord a fine and recovery be levy and suffer  and by deed declare the use thereof the remainder in the settlement be bar and  the encumbrance for the pound be let in upon the estate in may sir Edward in  performance of his promise resettle the land subject to that encumbrance to  the use in the first settlement and under the limitation of this resettlement  the appellant upon the death of his father and mother become entitle as heir  male of that marriage to the estate in question some time after the death of  dame Margaret sir Edward Seymour intermarry with the respondent dame Letitia  and in consideration of that marriage and of pound her portion sir Edward by  indenture of lease and release date the that and saint of February settle the  say manor of maidenbradley and other the land comprise in the resettlement to  the use of himself for life remainder to dame Letitia for life for her  jointure remainder to the heir male of sir Edward on the body of dame Letitia  to be beget remainder to the heir male of the body of sir Edward remainder in  fee to his own right heir but this latter settlement be defeazanced by the two  follow proviso first that if the say sir Edward Seymour or his heir shall at  any time during the term of year next ensue the date thereof settle and assure  manor messuagas land tenement and hereditament of the clear yearly value above  reprize of pound in any county within England to the use of himself for life  and after his decease as to pound yearly thereof to the use of the say Letitia  for her life for her jointure as aforesaid and the remainder thereof after her  death and also the remainder of the pound per and residue thereof after his  death to the heir male of the body of the say sir Edward Seymour on the body  of the say lititia to be beget and for default of such issue to the use of the  heir male of the body of the say sir Edward Seymour lawful issue and for  default of such issue to the use of the right heir of the say sir Edward  Seymour for ever that then and from and after such settlement all the use  before declare of and concern the say manor and premise shall cease and be  void and that John Lord powlett and Francis gwynn the trustee therein name  their heir and assign shall stand and be seize of all and singular the say  manor brown er p and promise to the use of the say sir Edward Seymour his heir  and assign brown and that then and from thenceforth it shall and may be lawful  to and for the say sir Edward Seymour by any deed or write under his hand and  seal to revoke the premise thereby grant and the use thereof thereby declare  and to limit new and other use thereof to such person and person and for such  estate and estate as he by such or any other deed shall limit and declare  second that the say pound the marriageportion of the say Letitia and all  security for the same shall be pay and assign unto the say John Lord powlett  and remain in his hand to be dispose of by he for or towards the purchase of  the say pound I per and thereby agree to be purchase by the say sir Edward  Seymour and to be settle as aforesaid and the interest in the in the mean time  to be pay to he or his assign and by this settlement sir Edward covenant that  he and sir Robert Clayton his trustee or one of they be seize in fee and have  good power to settle the estate to the above use and that the same be and  shall continue free from all former encumbrance do by he or his ancestor or  any claim under he or they in February sir Edward Seymour die intestate leave  dame Letitia and several child by her survive and she have get the  resettlement into her custody the appellant bring a ejectment against her for  recovery of the estate a draft of that deed have be find in the custody of sir  Robert Clayton but upon the trial of this ejectment at the bar of the court of  queen bench dame Letitia refuse to produce the resettlement and the appellant  not be able to make sufficient proof of it he be nonsuit whereupon he exhibit  his bill in chancery against dame Letitia and her child and other proper party  for a discovery of the deed and write and pray that if the limitation of the  resettlement shall appear to be bar he may be at liberty under the proviso in  dame letitia marriage settlement to redeem the say estate by settle land of  pound per and accord to the use of that settlement and that the pound portion  and as much more as will be requisite to make the purchase may be answer out  of his father personal estate and that a account may be take of such personal  estate and the plaintiff be pay his distributive share thereof to this bill  the defendant dame Letitia plead that she and her child be purchaser for a  valuable consideration without notice of the resettlement and by her answer  insist that the plaintiff be not entitle to any redemption because his father  have not take advantage of the proviso in any reasonable time after the  marriage and upon argue this plea it be allow on the that of June the cause be  hear before the Lord keeper Harcourt who declare that the only question then  proper before the court be on the settlement of February and that the  defendant have full prove their brown plea ought to have the benefit thereof  and of that settlement but a question arise on the proviso his lordship  declare that there be a beneficial power of revocation lodge in the plaintiff  father and his heir which be not forfeit or waive and there be no time fix but  a blank leave for the number of year limit for do it no other construction  ought to be make but that it shall be in a reasonable time after any of the  use in that settlement arise and as the plaintiff come within a year after his  father death to have the benefit of that power he be entitle to it if he make  a purchase and settlement accord to the proviso but such purchase ought to be  a convenient and reasonable purchase of land lie in such county as be as  valuable as the county in which the land in question lie and therefore the  plaintiff be decree to make such purchase within twelve month with the  approbation of a master and that on perfect and settle thereof accord to the  use aforesaid and payment of cost to all party the use in the defendant  marriagesettlement as to the estate in question shall cease and the trustee  shall stand seize thereof to the use of the plaintiff and his heir that the  tenant who have lease shall hold and enjoy under the same but the defendant  dame Letitia be not to make any new lease till the twelve month be expire as  to any account of profit the plaintiff bill be dismiss and if the plaintiff  make such purchase and settlement as aforesaid the defendant dame Letitia be  to produce upon oath all the deed and write relate to the present settle  estate which be to be deliver oyer to the plaintiff and as to the pound his  lordship be of opinion that the plain brown er p tiff ought not at that time  to have any benefit over for the same he be before the court only as heir at  law but when the purchase and settlement be make the consideration of what  satisfaction the plaintiff shall have out of his father personal estate for  what demand on perusal of the deed he shall think fit to make other than as  heir at law and touch his be reimburse what cost he shall pay to the other  party and all further direction touch the personal estate be reserve till  after the purchase and settlement make and if the plaintiff do not make such  new purchase and settlement his bill be to be dismiss with cost from this  decree both party appeal and in support of the original appeal it be urge I  Pratt p king that at the hear of the cause the appellant be take to be before  the court as heir at law of his father only and on that foundation the court  give judgement only on that part of his case whereas he full prove that the  resettlement be find in his father house and take from thence and wrongful  detain by the respondent dame Letitia and though the appellant offer not only  to prove the content of it by witness but to give in evidence the draft which  have be find in sir Robert clayton custody yet the court will neither permit  the appellant to give such evidence or compel the brown respondent dame  Letitia to produce the original deed but admit the appellant to be only before  the court as heir at law yet he ought in that capacity to have the benefit not  only of the pound but of the other personal estate of his father towards make  the new purchase and settlement accord to the proviso because his father have  express agree that such new purchase and settlement shall be make and that the  pound shall be apply towards make the same that since the full relief pray by  the bill will in a great measure arise from deed and write in the respondent  possession the court may and ought to have order they to be produce on the  appellant give reasonable security to make a new purchase and settlement  within such time as on a inspection of those write the court shall think just  and this the rather because no sort of damage or inconvenience can arise to  the respondent dame Letitia by produce the deed she have a effectual remedy  under the covenant of her marriagesettlement to have that settlement make good  to her out of the personal estate which be abundant sufficient for the purpose  while on the other hand by withhold these deed and particular the resettlement  the appellant be put under difficulty which render it almost impossible for he  to obtain that relief which injustice and equity he ought to have that by the  express word of the settlement of the appellant father and his heir have a  liberty of make the new purchase in any county in England yet the court have  decree it to be make of land lie in such county only which be as valuable as  in the county where the land in question lie and thereby the marriage  settlement be vary and alter that the tenant lease make since the death of the  appellant father be establish without any previous enquiry as to the reality  and consideration thereof and the appellant bill as to any account of the  profit of the present settle estate be dismiss so that he be to be bind by the  lease make since his father death and even pen this suit without know what  fine be receive for grant those lease some of which may have be make for small  fine in trust for the respondent dame Letitia or her young child that the  appellant ought either to have a account of the profit of the present settle  estate or a satisfaction in respect thereof out of the personal estate which  have be improve by interest since his father death and if the respondent dame  Letitia be to have those profit till a new purchase and settlement be make the  appellant ought to have what improvement shall in the mean time be make of the  personal estate or at least of so much of it as shall be apply in the new  purchase to all this it be answer t powys n Hooper that the respondent dame  Letitia be a purchaser without notice of the resettlement if any such there be  send have plead and prove herself so to be her title accord to the constants  know and uninterrupted course of justice ought not to be in any wise impeach  by the brown assistance of a court of equity that the appellant have fail at  law in prove the existence of this pretend resettlement and be nonsuit upon  sun evidence but suppose it to have be ever make yet his father be thereby  tenant in tail have it in his power to bar it by a common recovery as to the  not apply the pound in make the new purchase it be conceive that the brown er  p decree have carry that matter too far already and that the settlement of  ought now to stand absolute confirm and the appellant shall not be permit to  purchase and settle other land in lieu thereof but if he be to be at liberty  so to do he ought to do it out of his own estate and not with the pound or any  other part of his father estate who be under no obligation covenant or  undertake to make any such purchase or to invest the pound in land for the  benefit of his heir nor do he become in any manner indebt or Accountable to  his heir for not do it but as he have reserve to himself only a power or  liberty of do it if he think fit so he have waive and relinquish the exercise  of that power as it be lawful for he to do that it will have be high  unreasonable to compel the respondent dame Letitia a purchaser without notice  to produce her write and depend on a security for a settlement in lieu of her  jointure and equal so to oblige her to part with it without a equivalent as  upon any other construction of the proviso than what the decree have make the  new purchase may fall out to be of not more than half the value of the settle  estate and as to confirm the tenant lease dame Letitia have a power by the  settlement to make lease and if she have take small fine than may have be have  she alone be the sufferer and the appellant in no wise prejudice by her so do  in support of the cross appeal it be argue that although by the proviso in the  settlement of a power or liberty be give to sir Edward Seymour and his heir  within year to settle land in lieu of maidenbradley yet it be a power pure for  his benefit at his election whether to be exercise or not and therefore he may  have release waive relinquish or extinguish it whenever he please that as  there be several thing in this power which seem to relate to sir Edward  personal performance so there be also several fact in the case which show a  intent of wave the power particular his live year afterward without attempt to  exercise it and his take the pound portion out of the hand of the trustee  which be to have lie there for the purpose of make the new purchase and  therefore it be conceive that the decree ought not to have impeach the  settlement or have give the appellant after such a length of time and under  such circumstance power to disturb it under pretence of settle other land in  lieu thereof but to this it be answer that the acquiescence of the father can  be no just objection to the right of the son and heir who by the express word  of the proviso have as good a right to redeem brown the jointure as his father  ever have and apply proper to have the benefit of such redemption within a  year after his father death at the hear of this appeal the counsel for the  appellant insist upon read deposition to prove the use in the deed of  resettlement and after consideration of what be offer thereupon the house  order that the appellant counsel shall be ask whether sir Edward Seymour will  be content to be decree to confirm and make good his father last  marriagesettlement and that the deed of resettlement and all other deed and  write in the respondent custody or power shall be there upon produce and that  on consideration of the say deed of resettlement and other write and of the  last marriagesettlement the term of redemption or make void the use of the  last marriagesettlement be settle in chancery as that court shall direct and  the counsel for the appellant be acquaint therewith and consent thereto on his  behalf it be order that the cause shall be remit to the court of chancery and  that upon the appellant confirm his father last marriagesettlement as that  court shall direct the deed of resettlement and all other deed in the  respondent custody or power shall be produce as the say court shall direct and  that the say court on consideration of the deed of resettlement and other  write to be produce and of the say last marriagesettlement shall settle the  term of redemption or make void the use of the last settlement and shall give  such further direction in the cause as the say court shall think reasonable on  search the register office for the further proceed in this cause it appear in  lib b that by a order of the court of chancery date the that of February it be  order that the master shall approve of a deed of confirmation with a fine or  recovery as he shall think fit but that instead of the proviso in he last  marriagesettlement the master be to take care that the proviso in the deed of  confirmation shall be that if the plaintiff his heir shall perform the decree  journ vol p brown er p of the court touch the purchase and settle of pound per  and accord to the intent of the last marriagesettlement then the say deed of  confirmation be to be void and when that deed be execute the plaintiff be to  be at liberty to apply to have the deed and write produce and for such  direction as the court on consideration of the resettlement and other write so  to be produce and of the last marriagesettlement shall think fit to give for  settle the term of redemption or make void the use of the last settlement That  in pursuance of this order the master have settle a deed of confirmation which  the plaintiff have execute and that a fine have be levy accord that the  defendant lady Seymour have stand out process of contempt before she will  produce the deed of resettlement and the other write in her custody that the  same be at length produce the cause be hear before the Lord keeper on the that  of July when after hear the several deed and write read his lordship declare  that the last marriagesettlement be but in the nature of a security for make a  settlement of land of pound per and upon the defendant lady Seymour and the  issue male of that marriage and that the plaintiff sir Edward can be admit to  the redemption of maidenbradley or to make void the use limit thereof by the  last marriagesettlement on no other term than settle a estate of the clear  yearly value above reprize of pound per and to the use mention in the proviso  of the say last settlement or upon make compensation to lady Seymour and Lord  Conway in lieu thereof and that such purchase of land of pound per and ought  to be a convenient and reasonable purchase and the inheritance thereof as  valuable as the estate and land in maidenbradley and a touch the question  whether the plaintiff sir Edward ought to have any brown aid out of the  personal estate of his father to enable he to make such purchase or  compensation his lordship be of opinion that the resettlement be not a  voluntary conveyance but make on valuable consideration and therefore decree  that the plaintiff sir Edward shall stand in the place of the defendant lady  Seymour and Lord Conway on the last settlement to receive a satisfaction out  of his father personal estate for make such purchase of pound per and or a  compensation for the same but sir Edward Seymour the father have since the  resettlement exonerate there the estate from a encumbrance of pound therefore  that pound with interest for the same since sir Edward death at the rate of  pound per cent be to be take as part of what the plaintiff be to have towards  make up the value of the pound per and and the master be to set a value upon  such a inheritance of pound per and of land as valuable as land in  maidenbradley and it be further order that the master shall take a account of  the personal estate of sir Edward Seymour the father and the usual direction  be give for that purpose and if such personal estate shall be sufficient to  make a full compensation for the say pound per and discount the pound and  interest as aforesaid then the same be to be bring before the master to make  such compensation accord but if the personal estate shall be deficient then  the plaintiff sir Edward be to bring before the master so much as will make  good such deficiency and from the time that the same shall be so bring before  the master the use in the deed of confirmation and in the say last  marriagesettlement be to cease and the use thereof be from thenceforth to be  to the plaintiff sir Edward Seymour and his heir and thereupon the say deed of  confirmation together with the several lease make by the defendant lady  Seymour and all other deed and write then before the master be to be deliver  up to the plaintiff and the defendant lady Seymour and Lord Conway and their  trustee be to reconvey and deliver the possession of maiden Bradley to he but  the plaintiff be to pay the defendant their cost to be tax by the master and  to have the same again together with his own cost of this suit out of the  personal estate of his father so far as the same will extend and as to the  account of the rend and profit of maidenbradley from the time of the death of  the plaintiff father the defendant lady Seymour be to have a month time give  her to answer whether she will go into that account or not and if she shall  not think fit to go into it then maidenbradley be to be take to be pound per  and for the time pass and the plaintiff sir Edward be to have satisfaction out  of the personal estate for that pound per and from his father death deduct  thereout only the like tax as be Payable for maidenbradley and what surplus  shall be remain of the say personal estate after such deduction and allowance  thereout as aforesaid brown er p be to be divide accord to the act for the  distribution of intestates estate and the defendant lady Seymour and Lord  Conway be to be at liberty to apply to the court for invest or settle the same  accord to the proviso in the last marriagesettlement or to have it apportion  between they as shall be just on the saint of the same month the cause come on  again when lady Seymour by her counsel declare that the maidenbradley estate  have not since the death of her late husband answer to her pound per and above  reprize and that therefore she can not take the same at that value the court  declare that the plaintiff sir Edward Seymour can not be admit to redeem or  make void the use of the last marriagesettlement but upon make good the say  deficiency as well as settle pound per and or make a compensation in lieu  thereof as aforesaid it be therefore order that the defendant lady Seymour  shall come to a account before the master for the rend and profit of the say  estate since the death of sir Edward Seymour her husband and if such rend and  profit shall not amount to the clear yearly sum of pound above reprize then  the plaintiff sir Edward be to make good the deficiency and such deficiency be  to be make good to he out of his father personal estate and he be also to have  a satisfaction thereout for so much as the clear yearly profit of the say  premise shall upon such account appear to amount unto since the death of his  say father but if such clear yearly profit shall be more than pound I above  reprize the defendant lady Seymour be to account for the same