case WHITHILL versus Phelps post Eq Abr S c pale yellow Eq Rep S c wms wms  vezey atk atk atk a freeman of London in consideration of pound covenant that  if his wife survive he his executor or administrator shall pay her pound out  of his personal estate his be such a composition as will exclude her from any  part of the customary share the case upon open appear to be thus one mary  Phelps widow of Charles Phelps have a considerable fortune and several child  on treaty precedent in chancery for a second marriage with one John Whithill  agree he shall only have pound of her fortune and the residue to be settle for  her separate use and after her death the benefit of her child and accord a  indenture be prepare and execute before marriage whereby she with his assent  assign over her fortune to trustee in trust that she shall receive the profit  of it for her own separate use during her life and after her death that the  same shall go and be divide equal among her child and Whithill in  consideration of the say intend marriage and marriage portion of pound make a  settlement on her and at the end of the deed covenant that if the say mary  shall survive he then his executor or administrator shall pay and deliver to  the say mary pound out of his personal estate the marriage take effect  Whithill die without issue in and about a year after mary make her will and  the defendant her son executor and die the defendant likewise obtain  administration to Whithill the husband but that be afterward revoke and grant  to the plaintiff his mother who bring this bill for a account and distribution  of the intestate Whithills estate the defendant by his answer insist that  Whithill be a freeman of London and therefore on his death the widow be  entitle to the pound in the first place pursuant to the marriage agreement and  to a full moiety of the remain personal estate as his widow by the custom of  London and to a moiety of the remain moiety by the statute of distribution and  now she be dead the defendant as her executor stand in her place and have the  same right as she herself have it be argue for the plaintiff that this pound  which the husband have covenant shall be pa d her by his executor in case she  survive must be take to be in satisfaction of her customary part though there  be no word to that purpose that this be a compound for such customary part and  be before marriage by precedent in chancery the custom of the city bind her  from demand any more that in this ease she have waive any right under the  custom by make this particular provision beforehand and Mr Vernon on cite a  case of lee and pet decree by my Lord chancellor Cowper where a man and a  woman before marriage agree by article to settle pound each upon themselves  and their issue and a covenant from the intend husband that if the wife  survive she shall have pound to be at her own disposal the wife survive and  the husband be a freeman this pound be decree to be not only in satisfaction  of or as a composition for her customary part by the custom of London but also  to exclude her from any share upon the statute of distribution the husband  there die intestate and that this cause stand now in the paper to be reheard  and though perhaps the court may not go quite so far now yet certain it ought  to exclude her from any customary part on the other side it be endeavour to  distinguish this case from that which be cite that here it be only her pound  back again that this can be no composition for any share she may be entitle to  of her husband personal estate for then it ought to have come out of the  husband personal estate but here it be only give her back her own again my  Lord keeper decree it to be in satisfaction of her customary part and take  notice that the deed be express word in consideration of the marriage and  marriage portion so that he be absolute master of that pound and therefore it  must be look upon to come out of his personal estate but as to a moiety of the  other moiety upon precedent in chancery er p the statute of distribution there  be no question make of it but that the widow will be entitle thereto and a  account be decree accord note for the other moiety which belong to the  intestate the custom of London give no direction precedent in chancery where  there be no child and therefore that be whole under the direction of the  statute of distribution but the custom of the province of York extend to give  such moiety to the next of kin to the intestate and in the principal case the  master of the roll be of the same opinion and take notice that the deed be  express mention to be make between the party citizen of London so that the  custom of London may well be suppose to be in their view and therefore this  compound for pound in all event exempt her out of the reason of the custom  which be to provide for those who will be otherwise leave without any  provision and here she will not trust to any as to the customary provision and  therefore ought to have no benefit of it