case and Evelyn and others Appellants edward Evelyn and others Respondents  that may Mews dig ten see Ancaster v mayor bro Ch wood v Huntingford Ves where  portion for daughter be secure by a trust term to be raise by rend and profit  and no time be limit for the payment of they they shall neither carry interest  or be raise by sale or mortgage but by perception of the rend and profit only  decree of the English chancery affirm by agreement this be but one point of  many in this case which be ultimate conclude by a agreement confirm by act of  parliament as to the several point see the place in viner cite on the question  of portion the decision be thus state in p wms a term of year create to raise  portion for daughter in failure of issuemale as soon as convenient may be  after the father death but no maintenance or any express time mention when the  portion be Payable there be three daughter and the old but eight year old the  father be dead but the mother who have a jointure on the estate be live the  court will not raise the portion for daughter so young out of the reversionary  term  See ante note to can bro p c p wms viner vol p note to can not to can  can vol p can and note to can note to can note to can Eq can ab can George  Evelyn the elder esquire have issue five son namely John the old George the  respondent Edward Richard and William and be seize of a ancient family estate  part of it videlicet the manor of Walkamstead alias Godstone and other estate  brown in Surre in fee and as to the rest call Nobred and some other land in  the say county for life only with remainder to his old son John Evelyn in tail  male and remainder to his other son successive in tail male come to a  agreement with his old son John for make a new settlement thereof in order to  continue the same in his name and family accord by indenture tripartite date  the that of October make between George Evelyn sen of the first part John  Evelyn the old son of the second part and Richard Bromhall and Thomas  Bromfield of the three part it be witness that in consideration that the say  George Evelyn sen do agree to settle the manor of Walkamstead alias Godstone  in the county of Surre except so much thereof as lie within the borough of  Brindley heath with the quitrents of the say manor and the advowson of the  parish church of Godstone and the tithe of Godstone and Tandridge and coppice  wood in Godstone and wood land contain acre and other land in those two parish  particular mention of which he be then seize in fee to the same use and estate  and subject to the like proviso as the land and tenement therein after limit  to George Evelyn sen brown er p for life and after his death to his first and  other son in tail male successive be thereby limit and settle as also for bar  all remainder and in tail of the land and hereditament therein after mention  and settle the same to the use and subject to the proviso therein after  mention the say George Evelyn sen and John his son covenant with Bromhall and  Bromfield to suffer a common recovery of the message and land call Nobred and  of several land and wood in the parish of Godstone and Tandridge aforesaid to  the follow use videlicet as to the say message and land call Nobred and the  land and wood thereto belong and acre of the wood land to the use of George  Evelyn sen in fee and as to all the rest of the say land to the use of the say  George Evelyn sen for life without impeachment of waste remainder to John his  old son for his life remainder to trustee to support contingent remainder  remainder to his first and other son successive in tail male remainder to  George Evelyn jun the second son for his life sans waste remainder to trustee  to support contingent remainder remainder to his first and other son  successive in tail male remainder to the respondent Edward Evelyn the three  son for his life remainder to trustee to support contingent remainder  remainder to his first and other son successive in tail male with like  remainder over to Richard and William Evelyn the two other son of the say  George Evelyn sen successive for their several life and to their son  successive in tail male remainder to the heir male of the body of the say  George Evelyn sen remainder to he in fee provide that it shall be lawful for  George Evelyn sen by deed or will to charge by way of lease mortgage or  otherwise the land and premise so limit to he for life with the raise and  payment of any sum of money not exceed pound Payable brown as therein mention  or by lease or lease or otherwise to charge the premise with the payment of  any annuity for the life or life of any person or person to be compute at the  rate of ten year purchase and that not to exceed pound and that it shall be  lawful for George Evelyn sen with such of his son who shall be next in  remainder and after his death for his son when in possession of the premise by  virtue of the say limitation by deed to limit a jointure before or after  marriage to the wife or wife of the say son for her or their life or life of  all or any part of the premise after the rate of pound a year for every pound  portion provide also that it shall and may be lawful to and for the say George  Evelyn the father together with such of his say son as for the time be shall  be next in remainder after his death and after the death of the say George  Evelyn the father then to and for all and every the son and son of the say  George Evelyn the father several and successive when they shall be respective  in possession of the say message land tenement hereditament and premise by  virtue of any of the limitation aforesaid by any deed or deed write or write  under his or their hand and seal hand and seal sign and scale by he or they  respective in the presence of three or more credible witness to make any lease  or lease for year without impeachment of waste but without prejudice to any  jointure or jointure that shall be make by virtue of the before mention  proviso for the raise a portion or portion for the daughter or daughter of  such son or son so make such lease or lease so as the portion or portion to be  raise shall not exceed the portion or portion fortune or fortune in money good  or chattel of the wife or wife that such son or son so make such lease shall  marry and so as such lease or lease shall not take effect till there shall be  a failure of issue male of such son or son so make such lease or lease proviso  for George Evelyn sen and for his son as they shall respective come into  possession to make lease of the premise for any number of year not exceed year  in possession and not in reversion at the best rend Payable quarterly or half  yearly without take any fine a recovery be suffer accord and by indenture of  lease and release make between the same party and date the saint and d of  October in consideration that the say John Evelyn have join with his father in  suffer the say recovery of the premise and settle the same to the use and  subject to the proviso in the say indenture limit and express and in pursuance  of the agreement therein mention for that purpose George Evelyn the father  grant and confirm to the trustee and their heir the manor of Walkamstead alias  Godstone and the brown er p tithe and other land and estate in Godstone to the  same use upon the trust and subject to the same power and proviso as be limit  and declare by the former settlement except that in the power to raise brown  portion for daughter the follow word be add videlicet and so as such lease or  lease be determinable upon the raise the say portion or portion and of the  cost and charge of raise the same George Evelyn sen in pursuance of the power  reserve to he by the last deed execute his power of raise pound as to the sum  of pound part thereof by make a mortgage of the premise date the saint of  April to one Thomas Gregg for year for secure pound and interest which  mortgage afterward by mesne assignment become vest in sir Thomas pope Blount  and remain a charger upon the estate in June George Evelyn sen die leave issue  the say John his old son George Evelyn jun father of the appellant his second  son the respondent Edward Evelyn his three son and Richard and William his two  other son and in John his old son die without issue and unmarried whereupon  the remainder limit to George the second son come into possession by indenture  of three part date the d of August make between George Evelyn jun of the first  part Thomas Garth and mary his daughter of the second part the respondent  James Worsley and other trustee since decease of the three part recite a  marriage intend between George Evelyn jun and mary Garth who portion be agree  to be pound for settle a suitable jointure on her and her issue male and that  pound shall on failure of issue male be secure to their daughter and recite  the say indenture of the that of October and the recovery thereon and the  indenture of the that and saint of October and the several proviso in the say  indenture it be witness that in consideration of the say marriage and marriage  portion of pound and in pursuance of the agreement make for settle a suitable  jointure on mary Garth the say George Evelyn the young by virtue and in  pursuance of the power and authority to he give as well by the say recite  settlement as by any other power and authority do assign limit and appoint to  the use of mary Garth for her life to take effect after the death of the say  George Evelyn the young as and for her jointure and in bar of dower the  message land tithe and tenement in Godstone Tandridge and Bletchingle in the  county of Surre not exceed pound a year be suitable to her portion And the say  indenture further witness that in consideration of the say intend marriage and  marriage portion pay and for the settle a suitable portion or portion on the  daughter or daughter of he the say George Evelyn to be beget on the body of  the say mary his intend wife in case of failure of issue male of his body upon  the body of the say mary to be beget or if the issue male between they shall  happen to die and there shall be issue of the body of the say George Evelyn on  the body of the say mary one or more daughter or daughter he the say George  Evelyn by virtue and in pursuance of the power and authority to he give as  well by the say recite settlement as also by brown virtue of any other power  or authority to he give or in he be do demise grant and lease to the  respondent James Worsley and the other trustee since decease their executor  and administrator all and singular the land and premise therein before mention  and limit to the say mary for her jointure and all other the manor land and  hereditament in the say recite indenture of settlement comprise and limit to  the say George Evelyn the young for his life to hold the say premise to the  say trustee their executor and administrator for the term of year to commence  and take effect from and after the failure of issue male of the body of the  say George Evelyn the young to be beget and from thence next ensue and full to  be complete and end without impeachment of waste but without any prejudice and  subject to the jointure of the say mary his intend wife at the yearly rend of  a peppercorn during the say term at the feast of saint Michael the Archangel  if the same shall be demand upon the trust and for the purpose and under the  proviso therein after mention videlicet upon trust that if there shall be  failure of issue male of the body of the say George Evelyn the young on the  body of the say mary beget and the same George Evelyn shall have one or more  daughter or daughter of his body beget on the body of the say mary his intend  wife that then the say trustee and the survivor of they and the executor and  administrator of such survivor shall and brown er p may out of the rend issue  and profit of the say message land tenement hereditament and premise to they  limit for the term of year as aforesaid or by sale mortgage or lease thereof  or of any part or parcel thereof for all or any part of the say term or by all  or any of the say way and mean or by any other way or mean as to they in their  discretion shall seem meet as soon as convenient may be after the decease of  the say George Evelyn the young or in his lifetime if he shall think fit to  have the same soon raise and so direct levy and raise the sum of pound for the  portion or portion of such daughter or daughter to be pay to her or they and  equal divide among they if more than one share and share alike With a proviso  that the say term of year shall in no sort prejudice the jointure and that  immediate after the raise pay and discharge the say pound together with all  cost and charge which shall be expend in raise the same the say term shall  cease and determine the marriage take effect and on the that of June George  Evelyn jun die intestate without issue male but leave mary his widow and the  appellant his only daughter whereupon mary the widow who afterward marry  Charles boon esquire procure letter of administration of her say husband  George evelin personal estate and enter on the estate limit to her in jointure  and the respondent Edward Evelyn enter upon the rest of the estate limit in  jointure but comprise in the say term of year for raise the daughter portion  and become brown seize in reversion of the estate limit in jointure on mrs  boon after her death for such estate as be limit to he by virtue of the  settlement in October in Michaelmas term the appellant exhibit their bill in  chancery against the respondent and also against Thomas Garth James Worsley  and Thomas Gregg the then survive trustee in the settlement of August pray  that the trustee may execute the say trust by raise the pound in such manner  as by the say settlement be direct for the appellant portion and that the same  may be place out at interest and such interest apply for their maintenance to  which bill the defendant Garth and Gregg put in a joint answer and the  defendant Garth thereby submit to act in the trust but the defendant Gregg  desire to be discharge thereof and the defendant Worsley do the same by his  answer but the defendant Edward Evelyn insist by his answer that this pound be  only to be raise out of the rend and profit when the term come into possession  soon afterward the respondent Edward and James Evelyn his son exhibit a  crossbill against the appellant and against the say mary boon the widow and  administratrix of the say George Evelyn jun and the trustee and also against  sir Thomas pope Blount the mortgagee of the say estate for pound in order to  have a account of the say George evelin personal estate and the the surplus  thereof after his debt pay may be apply in exoneration of the say mortgage of  pound and to have a discovery of the settlement and write of the family come  to the hand of mrs boon after her late husband death these cause be at issue  come on to be hear before the master of the roll in the absence of the Lord  chancellor upon the that of may when it be declare that the power in the deed  of the that and saint of October be well execute and it be order that it shall  be refer to the master to inquire into the value of the estate in jointure to  the defendant mary and the value of the estate not in her jointure and his  honour reserve all further direction till after the master report the master  by his report date the that of December start the yearly value of the estate  limit in jointure to amount to pound a year for some part whereof the tenant  be to pay tax and that the annual payment thereout amount to pound S a year  and that the estate not in jointure amount to pound S a year only afterward  the respondent Edward Evelyn and James his son apprehend that the declaration  which have be insert in draw up the decree make by the master of the roll that  the power be well execute may be construe to mean not only that the term in  the deed of the d of August be well raise but that the trust of it be well  declare be advice to prefer their petition of appeal to the Lord chancellor  against that part of the decree and they accord obtain a order for rehear both  the cause as to that particular at the same brown time that they be to be hear  on the master report for further direction brown er p the cause come to be  hear before the Lord chancellor king on the that and that of July when his  lordship be please to desire the assistance of the Lord chief justice Raymond  and the master of the roll and accord on the that and that of October follow  the cause be hear before the Lord chancellor assist as aforesaid when after a  full hear the court declare they will take time to consider of the matter in  question which they do till the that of February when the cause stand in the  paper for judgement the Lord chancellor the Lord chief justice Raymond and the  master of the roll declare their opinion unanimous that the pound mortgage be  original a charge on the real estate the personal estate of George Evelyn the  son ought not to be apply to pay off the say mortgage and that the pound claim  by the appellant ought not to be raise by sale or mortgage of the say term of  year grant by the say settlement off the d of August of the say trust estate  but only out of the rend and profit arise out of the say trust estate and  thereupon it be among other thing order that so much of the respondent  crossbill as relate to the exoneration of the say mortgage on the real and to  have the same pay out of the personal estate shall be dismiss with cost and  decree that the say pound for the appellant portion shall be raise out of the  rend and profit of the trust estate and the defendant James Worsley the  survive trustee in the settlement decline to act the master be to appoint new  trustee and the defendant Worsley be to assign to they with a power for they  to cut down timber from the premise with the master approbation and the  respondent Edward Evelyn be to account before the master for the rend and  profit of the trust estate in his possession and what upon the balance of such  account shall appear to have be receive by he he be to pay the same to the new  trustee towards satisfaction of the say pound and deliver possession of the  trust estate to they and they be to receive the grow rend and profit thereof  and also of the estate in jointure to mrs boon when they shall fall in during  the remainder of the say year term till the remainder of the say pound be  raise thereout and all party be to be pay their cost in the original cause out  of the profit of the trust estate from so much of this decree as declare that  the pound ought not to be raise by sale or mortgage of the year term but only  out of the rend and profit of the trust estate the present appeal be bring and  on behalf of the appellant it be argue c Talbot t Lutwyche that the pound for  their portion become clue upon the death of George Evelyn the son without  issue male and be no more than their mother portion that there be no  particular method of raise the same prescribe by the power in the settlement  of October any otherwise by give a power to George to brown make lease without  impeachment of waste for raise portion for daughter but the settlement do not  direct that these portion shall be raise by rend and profit or in any other  particular method and therefore the trustee be leave to do it in the most  effectual way and since no particular method be thereby direct the method  which be particular mention in the execution of the power by George Evelyn the  son be very reasonable that in case where portion have be express direct to be  raise by rend and profit of a term for year court of equity have frequent  direct the term to be sell or mortgage for the raise such portion especial if  they can not be raise in a reasonable time by any other method and in this  case there be but pound S per and not cover by the jointure there be no  probability of raise the portion under a great number of year and but by small  sum that there be no difference between the power in the settlement of the  that of October and that of the saint of October save only that in the latter  it be add that the lease shall determine and be void upon raise the portion  and from thence it be infer that the portion can not be raise by mortgage or  sale because as soon as the money be pay the lease will be void but it be hope  that no such inference can reasonable be make from these word and that the  meaning of they can only be when the land or the reversion have answer the  portion for if the sale or mortgage be defeat the portion can not be say to be  raise if however this be a objection to the land comprise in that settlement  it do not hold as to the land comprise in the other nor prevent the portion  from be raise by sale or mortgage of those land that the daughter have no  maintenance provide for they and therefore their portion ought to vest and be  immediate raise upon their father death without issue male that brown er p  portion ought regular to be raise in entire and gross sum to answer the end  for which they be give whereas in the present case they be decree to be raise  by small sum out of rend and profit so that the appellant may be force to  spend the principal for their bare subsistence and may very probable wait so  long as never to have the real use and benefit of they which can never be the  intention of the marriage agreement or of the power vest in and execute by  their father it be therefore hope that the decree will be vary in the  particular complain of and that the portion of pound with interest for the  same from the time of George evelin death will be direct to be raise by sale  of the land comprise in the year term or a sufficient part thereof in support  of the decree it be contend p York d rider that there be no ground to raise  these portion by sale or mortgage either upon the foot of the original power  reserve by the deed of October or even of the execution of those power by the  deed of August for with respect to the jointure land which be almost brown the  whole of the estate the term of year be a mere reversionary term to take  effect after the death of a young jointress and a sale or even mortgage of it  at present in which case the interest will be add to the principal during all  her life will with the pound mortgage possible swallow up the whole value of  the term and leave only a naked reversion in the heir male never to take  effect in possession till after the expiration of year and therefore nothing  but the plain intention of the party who have the absolute power of dispose of  this estate can warrant such a proceed but instead of any such apparent intent  a contrary one be manifest upon the very face of the deed that the only method  prescribe by the deed of October for raise the portion be by make lease  without impeachment of waste the most natural meaning of which be to raise  they out of the rend or by fall timber but there be no word which import that  they shall be raise by sale or mortgage or any general word which be common  insert as word of course where a general power of raise be intend and be  express so in these very settlement as to the method of raise the sum of pound  for George Evelyn the elder which be intend to be raise in all event if he  please that in this case there be no particular time appoint when the portion  be to be raise which therefore be leave to be determine by the nature of the  estate and the necessity of the child the old of the appellant be under five  year old when the bill be bring and it can hardly be imagine to have be the  intent of the grandfather who be take so much care to secure a family estate  in the male line that all his care shall be defeat and the estate take away  from the family as it certain must in effect by a sale or mortgage of this  reversionary term in order to raise portion for granddaughter who do not yet  and possible never may want they and which if they shall happen to die while  incapable of dispose of they or intestate will go to the mother or her second  husband that no time be express appoint for the payment of these portion the  consideration of the estate from whence they be to arise point out the time  videlicet when that estate natural furnish a fund for it that be when it shall  come into possession that by the express word of the proviso in the second  settlement of the term to be create for raise the portion be to cease and  determine as soon as the portion be raise but this can not be if after those  sum be raise and the child pay the term be still to subsist for the benefit of  a purchaser or mortgagee neither be it possible for the term to cease upon  raise the portion in any other sense or way than by raise they from out of the  grow profit and this proviso be express insert in the settlement of and extend  to the whole term beside the daughter be not even now unprovide for for they  have two three of their father personal estate which by the schedule annex  brown to the mother answer appear to be considerable and they will also on the  foot of the decree as it now stand have the grow profit of the residue of the  estate not in jointure beside the support and assistance of their mother who  have a ample jointure it be therefore hope that the decree will be affirm and  the appeal dismiss with cost after counsel on both side be partly hear upon  this appeal they inform the house that all the party capable of consent be  come to a agreement and that the same be put into write and sign by they and  it be submit to their brown er p lordship if the same be think proper to  dismiss the appeal but without prejudice to the bring another in case a act of  parliament can not be obtain as in the agreement mention whereupon the write  agreement be deliver in and read by the clerk as follow agree that the whole  estate comprise in the recovery and deed of the that of October to lead the  use thereof and in the deed of lease and release of the that and saint of  October mention in the plead in this cause whereof the great part be settle on  mrs boon in jointure and in her possession and the residue be pound S per and  in the possession of Mr Edward Evelyn together with the advowson of the parish  church of Godstone in the county of Surre be sell to Mr boon for pound to be  pay as soon as a act of parliament can be obtain for confirm this agreement  and proper conveyance of the say estate to Mr boon and his heir shall be  execute by all proper party that out of the say sum of pound Mr boon and mrs  boon his wife shall be allow pound for her jointure and the appellant shall  have pound equal to be divide between they in satisfaction of their portion  provide by the settlement of the d of August make on their father and mother  marriage and the same shall be place out on government or real security for  their benefit during their respective minority or until they shall several  marry and shall then be pay to they respective and if all or any of they shall  die before her or their age of year and unmarried the share of such daughter  or daughter so happen to die shall be pay to her or their respective executor  or administrator and that the sum of pound shall be allow to Mr boon for the  mortgage make by George Evelyn the appellant grandfather on the say estate  which be vest in sir Thomas pope Blount by mesne assignment and be now vest in  trustee for Mr boon pound more of the say pound be lie out in land and settle  on Mr Richard Evelyn for life with remainder to his first and other son in  tail male with remainder to William Glanwill esquire in tail male with  remainder to Richard Evelyn the father and the heir of his body for his  consent to the sale of the say estate remainder to the say Edward Evelyn and  his heir that the profit of the say land brown of pound S per and in the  possession of Mr Edward Evelyn as aforesaid and which have be receive by he  since the death of the appellant father or which shall be receive thereout  till the say sale shall be complete be apply towards the cost of all party and  if the same shall not be sufficient for that purpose that so much as shall be  want shall be pay by the say Edward Evelyn and that the residue of the say  purchase money be invest in a purchase of land and tenement of inheritance to  be settle on the respondent Edward Evelyn for life remainder to trustee to  preserve contingent use remainder to his first and other son in tail male with  such remainder over and under and subject to such power clause proviso and  agreement as be mention and contain in the say deed of the that and saint of  October touch the say estate hereby agree to be sell and in the mean time till  a proper purchase be find be place out at interest in the name of trustee upon  trust to be lie out in such purchase as aforesaid and in the mean time the  interest to go to the same use as the profit of the land to be purchase ought  to be apply that all party concern do join in use their best endeavour to  procure a act of parliament for sale of the say estate to the say Mr boon for  the say sum of pound and for apply the say pound to the use and for the  purpose aforesaid that in the mean time application be make to the right  honourable the house of lord that the further hear this cause upon the appeal  may be adjourn to the next session of parliament it be however order that the  appeal shall be dismiss but without prejudice to the bring another in case the  say agreement shall not be perfect the agreement be afterward confirm by act  of parliament Geo Cox p wms n jour vol p brown er p