case Frederick versus Frederick Lord chancellor Macclesfield stram one for a  valuable consideration contract to be a freeman of London but die before he  have take up his freedom his personal estate shall be divide as if he have be  a freeman but his child not to be city orphan this bill be bring by Leonora  Frederick widow for the performance of her marriage agreement Thomas Frederick  esquire son of sir John Frederick knight late Lord mayor of London in January  apply to marry the plaintiff Leonora one of the daughter of Charles maresco  who be a orphan of the city of London be daughter of a freeman and the  marriage be agree upon between the relation on both side sir John Frederick by  indenture of lease and release settle diverse house of pound per annum to the  use of Thomas Frederick his son for life remainder to the plaintiff Leonora  his intend wife for life for her provision remainder to the first c son of the  marriage in tail male remainder to trustee for year for daughter portion if no  issue male and by another deed of the same date the sum of pound which be sir  John Frederick money and also pound compute to be the residue of the plaintiff  Leonora portion beyond pound which Mr Frederick the husband be to receive be  assign over in trust to be lie out in a purchase and to be settle on Mr  Frederick the then intend husband for his life remainder to the plaintiff  Leonora the intend peer William wife for her life with remainder to the first  c son of the marriage afterward and before the marriage the plaintiff Leonora  be a orphan and consequent the licence of the court of alderman who be  guardian of the city orphan be necessary to the marriage to avoid be liable to  commitment application be make to the court of alderman for their consent  whereupon a entry be make at a special court hold the that of February No that  at this court licence be grant to Leonora maresco one of the daughter and  orphan of Charles maresco late citizen and of London decease to marry Thomas  Frederick esquire son and heir apparent of sir John Frederick knight and  alderman provide that Mr common sergeant do approve of the settlement make  upon the say orphan and cc signify the same to this court and the say sir John  Frederick do there promise and engage that if the settlement shall not prove  satisfactory to the common sergeant and to the court that he will make up and  enlarge the same to the satisfaction of the court and the say Mr Frederick be  thereunto require do promise and engage and the say sir John do also undertake  on his behalf to take up his freedom of the city within one year next ensue No  at the same court it be agree that when any person not free of the city shall  address themselves to the court for a licence to marry any orphan of the city  they shall be first require and urge by the court to take up their freedom  before the court will give consent to such marriage peer William No at the  same court upon the humble desire of Mr Thomas Frederick son of sir John  Frederick knight and alderman of London and grocer be capable of freedom by  patrimony but desire to be admit by redemption into the company of it be order  by this court that he shall be admit to the freedom of this city by redemption  in the say company of he pay to Mr chamberlain for the city use S d Mr  Frederick perform no part of the agreement either in take up his freedom or in  lie out the trust money in a purchase march at the court of alderman No upon  some debate have touch Mr Frederick who have marry one of the daughter of  Charles maresco decease and have not take up his freedom of the city accord to  his promise make to the say court at the time when he have licence to marry  whereby she in case she survive he will not be entitle to the three of his  personal estate in like manner as the widow of freeman be it be by the say  court refer to Mr recorder and Mr common sergeant to peruse and consider of  the settlement make upon the say orphan as also the marriage agreement and to  see if the same be make accord to the direction and intention of the court and  Mr Frederick promise and to certify to the court peer William er p how they  find the same with their opinion therein at which last court sir John  Frederick sit as locum to hold for sir patience ware the lord mayor Mr  Frederick have two son and three daughter and by his will date the that of may  give to his old son John pound to his second son Thomas pound to his three  peer William daughter pound each and pound to his wife and devise such part of  his real estate as be unsettle to his second son Thomas in tail but give the  bulk of his estate to his three grandson be the child of his second son Thomas  Frederick after which the testator die his widow now bring her bill insist  that her husband have make the agreement ut above for a valuable consideration  videlicet that of marriage and to induce the court of alderman to consent to  his marry their orphan he ought to be take as a freeman and in consequence  thereof his personal estate to be distribute as such videlicet the widow to  have one three his child another three and only the remain three to pass by  the will the Lord chancellor after debate of this case at the bar take time to  consider of it and this day be the that of August decree the personal estate  of Mr Frederick to be liable to the custom of London and that he shall be take  as a freeman of London he have for a valuable consideration agree to become  such the demand be ground upon this rule that where one for a valuable  consideration agree to do a thing such executory contract be to be take as do  and that the man who make the agreement shall not be in a better case than if  he have fair and honest perform what he agree to this be to be take as a  contract make by the court of alderman with Mr Frederick himself and now the  question be whether he shall by will give away his personal estate contrary to  his own agreement when Mr Frederick engage to take upon himself the freedom of  the city it be the same as if he have agree peer William that the personal  estate which he may die possess of shall go accord to the custom of the city  of London one three to his widow and another three to his child object this be  no part of the marriage agreement there be on that occasion solemn deed one a  settlement of land and another of money to be lie out in land say to be a  provision for the wife in which no mention be make that the widow or child  shall have the benefit of the custom of London resp it may be admit that this  be the agreement and all the agreement that be make between the party  videlicet the relation on the man and on the woman side but still there be  other party to be consult who be guardian of the infant as be a city orphan  and the agreement between the relation can no way bind the court of alderman  be no more than a bare proposal as to they if the court of alderman have be  party to the agreement it have be something but they be not it be re inter  elsewhere acta and however it may conclude the relation can conclude the court  of alderman who be guardian of city orphan and without who leave no man can  marry such orphan under pain of imprisonment when the agreement betwixt the  relation be bring to the court of alderman and lie before they as a proposal  for it can be no more that court may have reject the whole alter any part or  have require a addition to it and this matter be before the statute of fraud  and perjury have the agreement be by parole only and without any write it have  notwithstanding be good peer William but do the court of alderman agree to  this proposal of the relation make with regard to the settlement on this  marriage No they do not they insist upon something far so that these  settlement be a agreement by those who have no authority whereas they who have  the authority and be guardian of the orphan do not agree but make other  additional term that Mr Frederick shall take upon he the freedom of London in  order to entitle his wife and child to the benefit of the custom and these  additional term be comply with by Mr Frederick and his father sir John I e Mr  Frederick the son and sir John the father on behalf of the son do agree that  he shall become a freeman of London within a year then next ensue which  agreement be enter among other the proceed and order of the court of alderman  and that court be a court of record be become matter of record it be as much  so as a fine will be if levy there for it be the concord between the party and  to prevent every thing which may look like take advantage of Mr Frederick in  gain this agreement from he after his affection be settle upon the young lady  therefore sir peer William er p John Frederick the father be make party  thereto and undertake the performance on behalf of his son so that there can  be no doubt of the agreement be make by Mr Frederick and his father that it be  part of the marriage agreement make in consideration of the marriage and of  the court of aldermens give their consent to Mr Frederick marry their orphan  to who they be a political guardian it appear to have be make upon a full and  valuable consideration and consequent ought as near as may be to be perform  peer William but it be object on the other side saint that this agreement be  not make for the benefit of the wife and child but of the city that Mr  Frederick who be rich by marry a city orphan entitle to a considerable fortune  and be the son and heir apparent of a very wealthy citizen who have be lord  mayor shall bear the burden of the city office which may be for the honour and  ease of the city resp this be a strange and monstrous construction that while  the court of alderman be do not only a honest act but a act of justice in make  term for the benefit of the orphan this shall be interpret as selfinterest and  knavery in take care to help themselves to proper person for supply their  burdensome office if such selfinterested and dishonest view have be entertain  by some of they still the rest can not have be presume to come into it but  suppose it to have be the intent of some of they it be present afterward  forget or rather appear never to have be their intent for by a subsequent  order of a court of alderman where sir John Frederick the father be locum to  hold of the then lord mayor it be take notice of that Mr Frederick be not  become a freeman whereby the orphan Leonora Frederick will lose her three  which show that the intent of put Mr Frederick to accept of his freedom be  that his wife may have her three and it be therefore refer to the recorder and  common sergeant of the city to see what provision have be make for mrs  Frederick the orphan object the court of alderman refer it to the common  sergeant to approve of the deed of settlement make by sir peer William John  Frederick upon his son marriage and it be to be presume that the common  sergeant do approve of they which deed be say to be a provision for the wife  but mention nothing of Mr Frederick agreement to take up his freedom of the  city resp it shall seem as if only the validity of the deed of settlement and  not the value of the estate settle be refer to the common sergeant for as to  the value the court of alderman can as well judge of that as the common  sergeant neither be it proper or usual for counsel to give their opinion upon  the value of estate which be no matter of law but admit that both the validity  and the value of what be settle be intend to be refer to the common sergeant  yet the agreement of Mr Frederick to take up his freedom be a additional part  of the provision insist upon by the court of alderman and submit to by Mr  Frederick object if the benefit accrueing to the wife and child by the freedom  of the city be part of the agreement and the intent thereof why be there a  year time give to Mr Frederick to take up his freedom which may have be do in  a day and there be the delay of a year Mr Frederick may have die within that  year by which mean the advantage intend to accrue to the wife or issue by such  freedom will have be lose resp it may be reasonable to allow Mr Frederick some  time to take up his freedom but it look as if he be not determine of what  company he will be free and as the old son or daughter if no son be provide  for by the marriage deed so it be not likely that within the first year there  will be any young son less likely be it that peer William within so short a  time as the first year Mr Frederick will have differ with his wife or have be  prejudice against any infant child so that if Mr Frederick have die within the  year leave a will it have probable be in favour of his wife and child or if he  have die intestate his personal estate will have fall to his wife and child by  the statute of distribution object so great a length of time have intervene  since the marriage between forty and fifty year and it appear that the court  of alderman do afterward pay the residue of mrs Frederick portion to Mr  Frederick it may therefore be presume that this agreement for Mr Frederick  take up his freedom be waive resp who can waive it the wife who be a feme  covert all the while can not and it can be suppose that the child without the  wife who be under the command of their father and with who the agreement be  not make can peer William er p waive it nor be it pretend that they have do so  and as to the mayor and alderman they themselves neither have nor can waive it  because from the time of make this agreement they be but trustee and their  release will have be a plain breach of trust which will not have bar the  beneficiary and trust nor can it have be available to those who be party to  such breach of trust and as there can be no waiver so can there be no laches  in the party now claim the benefit of this agreement for as to mrs Frederick  the wife who be to have her three by the custom in case of Mr Frederick become  a freeman she be all the while under coverture and the child the great part of  the time infant peer William object but Mr Frederick not be call upon all this  time to take up his freedom have occasion his die possess of a great personal  estate than otherwise he will have do for if he have be call upon to do it he  will probable have lie out the great part of his estate in land and so have  disappoint the custom resp the effect of this argument be that if Mr Frederick  have have notice or have think of this he will have cheat his wife and child  but not have have notice nor think of it he have not cheat they as matter have  be manage a fair experiment have be make what personal estate and to what  value Mr Frederick will think fit to die possess of what personal estate to  invest in land and like wise what to keep subsist at his death it have be a  harsh thing though perhaps lawful vide ante babington v greenwood for Mr  Frederick to have invest his personal estate in land on purpose to avoid his  own agreement and disappoint the custom all that can be say on this head be  that a man who as the other side suppose will not if he have think of it have  keep his agreement have not think fit to avoid it if a man covenant on good  consideration to lie out a sum of money in a purchase of land to be settle on  himself and the heir of his body by his wife and be afterward differ and fall  out with his child and declare that they shall have no benefit of this  covenant and die before he have lie out the money yet a court of equity will  out of his asset decree this money to be lie out in land and settle accord nor  will it be any excuse to say that if it have be lie out it will have be a  estatetail in he which he peer William afterward may have bar though he can  not bar the estatetail till the money be lie out and the estate settle after  the purchase thereof Benson v Benson ante object as to this right of the wife  and child to their share of Mr Frederick personal estate she or they that will  make title thereto must bring themselves within the custom and equity be not  to enforce or aid the custom or to intermeddle with the matter resp sure if  there be a contract for a valuable consideration that such a one will take up  his freedom in order to entitle his wife and child to the benefit of the  custom equity will enforce the performance of this as well as of any other  contract it be thus equity every day relieve against fraud in endeavour to  avoid the custom by assignment of lease or personal estate which be all in aid  of the custom vide vern object if there have be a suit against Mr Frederick to  have compel he to take up his freedom and a decree for that purpose and he  have stand obstinate and will not have perform it this will not have entitle  the widow and child to their three by the custom because Mr Frederick be not  actual a freeman accord it have be compare to the case where tenant in tail  make a mortgage and covenant to levy a fine to the mortgagee the mortgagee  bring a bill against the tenant in tail to compel he to levy such fine which  be decree but the tenant in tail be obstinate be imprison for not perform the  decree and die there the mortgagee have no benefit of the decree but peer  William lose his money by the issue in tail avoid the mortgage and if the  widow and child will not have be entitle though there have be a decree in  their favour much less can they be so here where there be none this be the  case of weal v low cite vern and pre Charles resp it be very true that in case  of a decree against tenant in tail to levy a fine who die before he have  perform the decree the issue be not bind because he claim paramount the tenant  in tail and per form do but in the principal case Mr Frederick be not by this  agreement bide his issue in tail but his executor and sure it will not be say  that a man can bind his executor on the contrary they be bind of course  without be name though the heir be not object by the same reason that Mr  Frederick shall in equity be take for a freeman peer William er p of London by  virtue of this agreement so also shall his child be orphan and under the  guardianship of the court of alderman as they will have be if Mr Frederick  have be actual free resp the guardianship of a child be only a trust see the  case of the duke of Beaufort and berty ante and no profit and therefore not  within the reason of that part of the custom which entitle the widow and child  to their three beside the guardianship only concern the court of alderman who  by their nonclaim may have bar themselves of their right though they can not  bar the infant of what belong to they object Mr Frederick death alter the case  for he can be make a freeman after his death and so the act of God make it  impossible that this agreement shall be specifical perform peer William resp  it be the substance and the chief end of the agreement that equity will  enforce videlicet that the widow and child shall have their three of the  personal estate which be not impossible to be perform this though Mr Frederick  be dead a court of equity may and I think ought to see execute Mr Frederick  unkind usage of his wife and child it appear by the proof that never have a  man a more dutiful wife and child nor ever a wife or child a more unkind  husband or father and not one witness be examine on the other side plain  entitle they to the compassion of the court as do the extreme severity of the  will and the very narrow provision make for they thereby it be far observable  that by the article of separation between Mr Frederick and his wife and child  they be not to come within so many yard of his house under certain penalty and  therefore can be blame for go from the testator in his lifetime and in his old  age without his leave and against his consent when by those article they be  not to come within so many yard of his house without a forfeiture see Mr  Frederick will upon the whole matter Mr Frederick have upon good consideration  make the agreement to become a freeman of London within a year and have  survive that year he shall in equity be take for a freeman and his personal  estate distribute accord videlicet one three to the wife another three to the  child and the will to operate only on the dead man three the wife to have the  benefit of her chamber and paraphernalia but the legacy give by the will to  the child to be void they not be give out of the dead man part quaere et vide  ante babington v greenwood in the note but out of the whole personal estate  and so to be void unless the child release their right to the rest of the  estate and abide by the will peer William this decree be afterward affirm in  the house of lord with pound cost bro p c and Edward I bro p c where the case  and argument be report at length