case harvey against harvey a this case be transcribe from the manuscript of Mr  short ms a chancery Michaelmas term Geo if a power in which the intention of  the party be clear and evident be execute defective as to part and afterward  execute defective as to the whole of the interest court of equity will in  favour of a purchaser for a valuable consideration reject the first  appointment and supply the defect of the second S c atk S c bar c r S c Eq ab  Hardwicke Lord chancellor Edward Harvey the father of the defendant be seize  of several land for life under a marriagesettlement with his first wife  remainder to the defendant Michael Harvey in tail male these two be thus seize  in convey those land upon the marriage of Michael Harvey to the use of Edward  Harvey for his life as to part of his land to his wife for her jointure  remainder to the first and other son in tail male remainder over No recovery  be suffer so that the use do not proper arise at commonlaw in this deed of  settlement be reserve a power or proviso by which it be agree that if  Elizabeth Harvey the present wife of Edward shall die in the lifetime of  Edward and he shall marry another wife that Edward may settle so much of the  land on her as shall amount to six hundred pound ayear for her life by way of  jointure that Edward Harvey be to be consider as a purchaser for a valuable  consideration because be tenant for life of the whole he part with part of the  estate to the son in consideration of that agreement which be sufficient to  make good the settlement Edward harvey first wife die before he and he  afterward marry with the plaintiff mary Harvey then mary Carteret on who a  settlement be make in by which all the land comprise in this power which be  value at nine hundred pound ayear be convey to trustee and to their heir  during the life of the say mary Harvey then Carteret upon trust to raise out  of the rend and profit one hundred pound ayear for mary for pinmoney as long  as they both shall live and after the death of Edward Harvey to raise and pay  her two hundred pound ayear for her life as her jointure and to permit the  remainderman to receive the residue afterward Edward Harvey make a further  settlement of the say land to the same trustee and under the same trust to pay  her three hundred pound ayear more as a additional jointure some time  afterward in modern report another deed of settlement be execute by Edward  Harvey to the same trustee of the same land upon trust to raise and pay to the  say mary Harvey his wife six hundred pound ayear for her life which say six  hundred pound wonder S to be pay in lieu and satisfaction of all former  jointure and settlement except the one hundred pound pinmoney which be still  to be pay her during their joint life soon after this last settlement Edward  Harvey die live mary his wife who bring her bill here against the trustee and  the heir at law Michael Harvey to have this settlement put in execution and  the annuity of six hundred pound ayear pay her upon these settlement two  question will arise modern report er p first what be the construction of this  power second the several act that have be do by Edward Harvey towards the  execution of it it be a power give to Edward Harvey to charge so much of those  land by way of settlement on any aftertaken wife as will be sufficient to  raise six hundred pound ayear but the estate be not to be exempt from tax c  and to be convey only for the life of such wife whereas here the whole land be  convey to trustee for ever and a clear annuity of six hundred pound settle on  the wife then as to the several act of Edward Harvey here be first a  settlement for valuable consideration before marriage another after marriage  which be voluntary and a three which drown the other two and as for the whole  six hundred pound ayear by way of annuity now upon this case thus state and  upon consider the power it appear that the execution of it by the settlement  make in precedent to the marriage of Edward Harvey with his second wife be  void both in law and equity in law because the power give to Edward Harvey be  to settle so much only of the land as shall not exceed the yearly value of six  hundred pound whereas he have settle the whole land by the power he be to  settle it to her for her life c whereas he have convey it to trustee for ever  which be also have the power not be pursue then he be only to settle so much  of the land as shall not exceed the yearly value of six hundred pound but not  to be exempt from tax and other incident charge whereas he have charge they  with a clear annuity of six hundred pound which be also void in law in equity  it be also void because neither party can have that which be stipulate for  they but not so void as that the wife shall have no provision make for her  Edward Harvey can not charge the land with any annuity at all because the  remainderman be not intend to be affect with the charge for he can not tell  what profit the land will modern report produce a settlement make to trustee  and their heir in trust to raise a annuity for the wife life be not a complete  jointure for a jointure must be to the wife herself I will consider upon this  power what the wife be to have the remainderman be to have the estate over and  above the jointure take out of it whereas the wife by the settlement have a  clear annuity of three hundred pound ayear charge upon the whole of the estate  this be a very different interest than what he have stipulate for in the  marriagesettlement of his father consider the jointress can not stipulate to  have this three hundred pound ayear for Michael Harvey be not oblige to submit  either in law or equity the utmost the court will do will be to make the six  hundred pound ayear to stand as a security for the three hundred pound ayear  so that it appear neither of the party can have what be stipulate for they it  have be admit and very right for the defendant that this court do relieve  against defective execution of power and aid they on behalf of purchaser  creditor wife and young child a see Watts v Papal bull Peer wms Goodwin v  Goodwin vezey bias v bias vezey kettle v townsend salk Hawkins v leigh atk  cook v arnham Peer wms smith v baker atk Marston v gowan brown c c chapman v  Gibson brown c c a for wife and child in some degree be consider in equity as  creditor by nature but the wife in these case must be otherwise unprovide for  and here if mary Harvey can have the benefit of the first settlement accord to  the marriage settlement then she be to be consider as a wife unprovide for and  will be entitle to the benefit of the latter settlement I will suppose that no  settlement at all have be make upon the plaintiff before her marriage but  after her marriage a voluntary one and without any consideration and Edward  Harvey have make a execution of this power of the land of six hundred pound to  his wife defective and she have come here after his death to have that aid the  court will have do it to the whole extent of the land otherwise she will be  entire unprovide for and where that be the case the court never consider  whether there be any sort of excess in the quantity at the time of the  execution of the power for if modern report er p there be a power voluntary  execute for the wife she shall have the benefit of it unless there be suspect  circumstance that equity can lie hold of as any fraud undue influence or  imposition on the husband none of which appear or be surmise in the present  case there be many case of this kind in that of smith v Ashton b Chan case Eq  Abr b there be a provision mere voluntary and a defective execution of the  power and they come here to have it supply and the court do it the case of to  lift v to lift c Eq Abr Peer wms c at the roll that August be of the same sort  except modern report only that it be in the case of a will there George to  lift the father give the estate to trustee to the use of his son for life  remainder to trustee to support contingent remainder remainder to first and  other son in tail with remainder over and he give a power to his son by any  deed or write under his hand and seal to limit and appoint any part of the  estate for a clear jointure to any wife he shall marry after the death of the  father the son survive but be a infant and be intermarry with the plaintiff  and then make his will sign and seal by himself recite the power and give to  the plaintiff as a provision and jointure the estate in question in  satisfaction of her dower and their die leave the defendant a infant the widow  bring her bill to have the benefit of this provision upon which there be two  question whether the execution of the power be good in law and if not whether  it ought not to be make good in equity against the remainderman the master of  the roll be of opinion that it be not a good execution of the power at law  because it be to be execute by deed whereas this be by will and upon the  second point be think it ought to be supply though this be by will and mere  voluntary the cause stand over to have the will full prove and when it come on  again he be of this opinion the attorneygeneral when he cite this case say  that the master of the roll think the word deed to be a peculiar one and lie  it down as a maxim in equity that all defective execution of power shall be  supply in favour of a wife and young child and make a decree in favour of the  wife a see S c forester Rep a the case of carter v carter b case tempt Talb Eq  Abr b at the roll June be of a provision for young child where the power be  defective execute in law without any consideration of marriage and mere  voluntary and there be a decree to aid the case be thus t carter devise eight  thousand pound in trust to be lie out in land to be settle upon his nephew  George carter for life remainder to his first and other son in tail remainder  to trustee for fifteen year without impeachment of waste in trust to raise  portion for daughter to be pay at such time and mariner as he shall appoint in  write to be attest by two witness and there be several other limitation over  to William carter and his first and other son and power be also give to George  carter to make a jointure to his wife in William carter the next remainderman  after failure of issue male of George carter bring his bill against George  carter to have the eight thousand pound lie out George carter insist upon the  power he have of raise portion to the daughter by his own appointment and make  a jointure to a wife and say by his answer I do appoint all the rend and  profit of the land to be purchase with the eight thousand pound for fifteen  year shall be collect and apply for raise portion for my daughter but in case  of more then to be equal divide between they and the decree modern report be  make for lie out the money but before a purchase be make George carter die  without any other appointment of the power William carter bring his bill to  have the benefit of the decree for the eight thousand pound to be lie out in  land to have it himself because it be limit over to he in tail it be bring  against the daughter and widow of George carter and they by their answer  insist upon the benefit of the power and the widow insist upon the article  make in consideration of marriage and the agreement before and by virtue of  they it be covenant to settle the estate to be purchase to himself for life  remainder to her for life the daughter insist that she be entitle to the term  of fifteen year by virtue of the appointment by the father in his answer under  this agreement but if that be no appointment their she modern report er p  insist to have it by the will the master of the roll decree that the article  be to be consider as a good execution of the power of appointment of the  jointure the agreement before marriage do not appear but by recital the next  question be concern the fifteen year term whether that be to be for the  benefit of the daughter and the first question be that suppose there be no  execution of the power yet there shall be one for the benefit of the daughter  and second whether what be mention in the answer be a good execution of the  power his honour think that the answer be no execution of the power that the  fifteen year term shall be consider as for the benefit of the daughter and be  of opinion that it be not a good execution but ought to be consider as a  defective one in equity and therefore proper for the court to relieve and  decree accord and that as to the article for the execution of the power they  be to be consider as article in pursuance of a agreement before marriage in  write upon these authority and many other that may be cite there can be no  doubt but that a tenant for life with power to make a jointure if he execute  it after marriage and without a valuable consideration for a wife not  otherwise provide for that the defective execution of the power shall be aid  in equity and supply if so the wife here must be entitle to her jointure  contract for before marriage or to the provision make after marriage I think  mrs mary Harvey can have the provision make for her before marriage because  that be contrary to the power both in point of circumstance and substance for  instead of allot her six hundred pound ayear subject to charge and reparation  that charge be of a clear annuity of three hundred pound if I be to decree her  something contrary to the contract upon the reservation of the power by the  father and the son or contrary to the stipulation of the wife in neither of  these case shall I be justify and if I shall decree the six hundred pound  ayear to be a charge upon the land out of which the six hundred pound ayear be  give I shall decree something different from the power and from modern report  what be contract for if this execution of the power be void in law she be a  wife unprovide for and then the question be whether she ought not to have the  benefit of the settlement make for her upon her marriage and I think she be  clear within the authority of both the case I have cite and within the rule  lie down here for a wife unprovide for the present question differ from all  the other case cite and I do not know of any under these circumstance the  plaintiff rely upon the supply a defective execution of a power where it be  execute for a valuable consideration but if voluntary that it shall not be aid  and this general rule here be lie down in several case the determination of  Bayley v Montague a bro p c a be upon a different reason for there the court  rely upon the case of sir John Hussey v Lord falconer and that be a defective  execution of a power by tenant for life for a mere voluntary consideration the  case of Orby v lady Mohun c vern Eq Abr Freem Prec Ch Ch Rep c be a uncertain  execution of a power and impossible to be reduce to certainty there be no  creditor purchaser young child or wife unprovide for and it be not say where a  wife be in some degree provide for that a defective execution of a power shall  not be aid but the case import that the present plaintiff can have the benefit  of the first settlement and if so the wife be unprovide for by any contract  and therefore within the rule of supply defective execution for the benefit of  wife and child by will there have be many case where defective execution of  power have be supply where the wife or child have have other provision beside  what be give they by such execution as where there be a copyhold devise for  the benefit of young child who have have provision by marriagesettlement the  court will make good that defective devise where the heir at law have have a  reasonable provision so that it be no objection that the wife be in part  provide for in the case of week v eams the plaintiff be a creditor of sir a  son and heir of sir Charles and bring his bill to have a satisfaction out of  the real and personal estate of the defendant the daughter of sir Charles  insist as to some copyhold land that they be devise modern report er p to sir  a to his mother for life and then to they but that there have be no surrender  this be a provision for young child it be say the surrender shall not be  supply for the daughter have other provision in prejudice of creditor but the  court be of opinion that the defective surrender ought to be supply but decree  the mortgagee his mortgage there have be other case of this kind there be one  reason in the principal case that warrant I to do as I have do and convince I  that if I shall decree in any other manner I shall make such a one as will not  be reasonable and that be this that if the wife have claim the whole six  hundred pound ayear without any modern report consideration or marriage  provision but sole by a defective execution of the power it can be doubt but  that the court will have supply it and to say because she claim by a valuable  consideration in part that she shall not be entitle whereas if she claim  without any consideration the whole she will be entitle this to I be strange  and hardly reasonable therefore I think under these circumstance the case be  strong to supply the defective execution of this power if there have appear  any kind of imposition or ill practice by the wife or any advantage take of  her husband that will have be proper for the consideration of the court and  may have have great weight to prevent the aid of the execution of the power  but there be nothing of that kind in the present case Michael Harvey the son  estate be charge no further than what may be do for by the marriage of Edward  the father himself there be the like power to he to make a jointure upon the  marriage of his son and it bring it within the original intent and agreement  that this six hundred pound ayear ought to be admit by he as a reasonable  provision Lord Coventry case a comy Rep Eq Abr Mod pale yellow Rep Mod a be  much rely on as to the consideration of the article before marriage be  valuable but I do not know the court ever carry into execution these article  for the difficulty here be that there be no execution of the power not because  it be contract for the settlement of the land within the power but the court  think it be such a lie upon the land as they can decree the execution of the  power I will consider what be the operation of the declaratory clause in the  last settlement and I think this deed have introduce the incorrect execution  of the power it recite what have be before do and declare that this last deed  be make to secure to the wife after the decease of the husband a jointure not  exceed six hundred pound ayear accord to the power give to the husband the  party be Willing to waive all the proceed before and the intent be that the  wife shall have this annuity and I be of opinion that she ought and therefore  do decree that the plaintiff be entitle to the jointure of six hundred pound  ayear out of the estate accord to the power by the settlement and that so much  of the land and premise comprise in the settlement of be allot and set out  accord this decree be afterward affirm on a rehear of the cause at  LincolnsInnHall in the vacation of Trinity term