brown case Naphtali frank and other appellant joseph martin and other  respondent that march Mews dig twelve S c Eden a on the marriage of one of his  daughter covenant that she and her child shall after his death divide with his  son half a share of what he shall think proper to be inherit by the most  belove of his son a afterward make his will without leave any thing to this  daughter or her child hold that the covenant be intend to operate only in the  event of a intestacy decree of Lord keeper Henley affirm the question arise on  a Jewish contract of marriage and be curious from that circumstance but can  scarce be think to form a precedent Mr Moses heart be in the year and for some  year before deep engage in buy and sell of stock in which business the great  part of his fortune which be at that time very considerable be necessary  employ about this period Mr heart propose a match which afterward take place  between Mr Isaac frank who be then a considerable dealer in jewel and worth  about pound and his old daughter sincha or Frances who be then about fifteen  year of age brown er p Mr heart on the treaty about the marriagesettlement be  unwilling to brown part with any considerable share of his estate which be  employ in so lucrative way and therefore propose to Mr frank to give he a  present fortune of pound with his daughter together with pound for clothes and  to secure the payment of such additional fortune as be mention in the follow  article for the benefit of the intend husband and his wife and their issue Mr  frank accept the proposal and accord article of agreement in the Hebrew  language be enter into and execute by Moses heart Isaac frank and sincha heart  which article be translate by a notary public skill in that language be to the  follow effect on Tuesday the that day of the month Sivan in the year from the  creation of the world accord to the way of reckon we use here in the city of  London before we the underwritten witness personal come and appear Mr Moses  the son of Naphtali heart decease and Mr Isaac the son of Naphtali heart frank  decease who in order to confirm and corroborate these present do before we  sign the same as also the translation thereof which be make from the Hebrew  into the English language in presence of the notary public name Thomas Bake  Bocking both be of the same tenor and date the only difference be that the say  translation which they have likewise sign be write in the English language in  order for they the better to understand the true meaning of the content  thereof and these be the condition mention with truth and justice which be  make pursuant to the command and statute of our holy law and the institution  of our rabies of bless memory the first condition be as usual the gentleman  the say Isaac frank do declare before we that he do intend to marry the maiden  lady miss sincha the daughter of the say Moses with a wedding ring and under a  canopy accord to the law of Moses and Israel and do say by reason of the love  and affection he do bear for her he be Willing to make a addition to her  marriage portion whereupon we the underwritten witness take possession of he  the say frank by his sign these present and he do oblige himself to give unto  her the sum of nine thousand pound sterling and agree also that all her  paraphernalia be the same of silver gold or jewel for the use or ornament of  her person and all her wear apparel and the furniture belong to the house do  and shall belong unto her this be the first condition the second condition it  be declare and agree by and between the say party that if the say Isaac shall  happen to depart this life within the first year of his marriage without leave  any issue beget on the body of his say intend wife the say sincha daughter of  the say Moses then and in such case his say wife shall have but pound sterling  be the sum of pound sterling her father do give her and all the silver gold  and jewel belong to her as aforesaid and her wear apparel and furniture brown  belong to the house and if the say gentleman shall happen to die after the  first year of his say marriage then and in such case his wife the say sincha  shall have the sum of pound sterling and all the silver gold jewel wear  apparel and furniture abovementioned but if the say gentleman shall happen to  die after the expiration of two year to be account from the time of his say  marriage then and in such case his say wife shall have the sum of pound  sterling and all the silver gold wear apparel and furniture belong to the  house this be the second condition three if the say wife sincha the daughter  of the say Moses shall happen to die within the first year of her marriage  then and in such case the say Isaac shall be oblige to return the marriage  portion be the sum of pound sterling and all her wear apparel and  paraphernalia which her father the say Moses do give her and if the say wife  sincha shall happen to die in the second year after her say marriage then and  in such case the say Mr Isaac shall be oblige to return the sum of pound  sterling and all her paraphernalia and wear apparel which her father do give  her but if the say wife sincha shall die after the expiration of two year then  and in such case the say Isaac shall be free and shall not be oblige to return  to her father the say Moses his heir or assign any thing whatsoever agreeable  to our law which be that the husband do inherit the marriage portion bring by  his wife which say law be agreeable to the law receive on mount Sinai this be  the three condition the four condition the say Mr Moses spontaneous of his own  accord and without the least compulsion whatsoever but hearty with a Willing  mind and after mature deliberation do oblige himself say brown er p ing in  manner follow I do take upon myself as a absolute debt and will that the same  shall be upon I and upon my heir after I as a absolute debt that my child  after my decease shall perform all the article herein mention that my say  daughter sincha the intend wife of my intend soninlaw Mr Isaac the son of Mr  Naphtali heart frank decease he and her child beget by her say husband the say  Mr Isaac shall divide with my son half a share of a son that be to say all  what I shall think proper to be inherit by the most belove of my son my say  daughter and her issue shall inherit half a share of a son and my say intend  soninlaw shall be curator and guardian of her share which she shall so inherit  from I in his lifetime and after my decease I have condition and oblige myself  in this express manner that my daughter sincha and her issue and her say  husband shall inherit half a share of a son exclusive of the real estate house  and land which I have purchase to this day in which my say soninlaw and  daughter shall not have any share or inheritance but the same shall all belong  to my son only and my meaning and intention likewise be that if when God shall  be brown please to take I out of this world any of my daughter shall happen to  be spinster and unmarried then and in such case each and every of my say  maiden daughter shall first of all take their portion of pound sterling and  pound sterling more for clothes or apparel for her or their share out of the  whole estate which I shall die possess of and the reason why they shall so  take first the say sum be because I now give my daughter sincha the intend  wife of my say intend soninlaw Mr Isaac frank pound sterling for her  marriageportion and clothes or apparel to the amount abovementioned and after  my say unmarried daughter shall have receive the same then the rest residue  and remainder I shall die possess of shall be divide in manner follow that be  to say to my son two share and to the gentleman my intend soninlaw and my  daughter sincha and her issue and the rest of my daughter to each of they half  a share of a son as aforesaid exclusive of the real estate house and land I be  at this present time possess of and my meaning and intention also be that if  my say daughter sincha shall die without leave any issue then and in such case  my say intend soninlaw shall have no claim or demand upon I or upon my child  and if my say daughter shall die leave issue and afterward the say issue shall  also die then and in such case after the death of my say intend soninlaw Mr  Isaac frank the sum which my say intend soninlaw my daughter and her issue  shall have inherit shall be and belong to I and my child and heir for ever for  their inheritance and this be express so condition in order that my estate may  not be lessen upon that account all which say condition they the say party to  wit Mr Moses the son of Naphtali heart decease and Mr Isaac the son of Mr  Naphtali heart frank decease have bind and oblige themselves to perform and  thereupon we the say witness on the part and behalf of the say woman have take  possession of the say party by a proper instrument for take possession without  ambiguity or reservation and not as if it be a copy of a agreement but a  absolute one annul and make void any protest or write which do or shall  contradict these present in the same term our rabies make use of to annul  protest etcetera and all be right strong and bind two part of these article be  write in Hebrew and in the character make use of among the germane jews by  Aaron heart head rabbi of the germane jews synagogue in London and brother of  the say Moses heart who be a germane Jew upon paper duly stamp and be sign  seal and deliver by the party and Kinyan or possession take thereon which be a  ceremony use among the jews in the obligation which they mean to make the  strong and most bind and these deed be execute and the ceremony perform in the  presence of jehiel Michael the son of Moses Joseph reader to the synagogue of  London and Samuel the son of Judah Leb clerk to the say synagogue brown both  of who subscribe their name as witness to the say deed and the content of it  and one of the part of the deed remain with the father Mr heart and the other  with the husband Mr frank but the English translation refer to by the article  as have be sign by the party be not to be find and it be doubt whether any  such be ever sign or execute as a parchment engrossment unexecuted and with  many blank in it be find after the death of Mr heart among Mr Isaac Frankss  paper which seem to agree in substance with the translation since make of the  say article brown er p at the time the above article be enter into Mr heart  have only one son live name hyam who be then about ten year of age and four  daughter videlicet the say sincha or Frances his old daughter Judy Bilah and  Rachael Mr Moses heart be a germane Jew and Mr Isaac frank the son of a  germane Jew and the above contract so enter into between they be the usual  marriagesettlement between germane jews among who it be common on the marriage  of a daughter to secure to her or her issue a share of their fortune in  proportion or with reference to the share of a son so that in case of  intestacy the estate of the father shall be consider as divide among his child  in such manner that the son or son if any such shall be live at the death of  the father shall taker double the share of a daughter and if the father shall  by his will give to any son more than he will have be so entitle to in case of  a intestacy then the daughter or her issue shall have a moiety of such large  share and if there shall be no son live at the death of the father then she or  her issue shall be entitle to a equal share with the other daughter consider  the estate as to be divide among they on the saint of may the marriage be  solemnized by Aaron heart the rabbi the say Moses heart be brother and it be  usual to read over and explain such marriage contract in the presence of the  subscribe witness to the party who declare their assent or agreement to the  content thereof the same be do in the present case and the say Aaron heart who  write over the two part thereof to be execute be perfect skill in the Hebrew  language and Moses heart himself also understand that language and have a  counter part of the article execute by all the party in his custody from the  time of the execution thereof to the time of his death and the same be upon  his death find among his paper by his executor and be produce by they at the  hear of the cause aftermentioned there be issue of this marriage Henry Isaac  frank and the appellant Phila the only two child of the say Isaac frank and  sincha his wife in Judy Mr heart be second daughter intermarry with Mr Elias  levy to who he give the same fortune as Mr Isaac frank have with his wife and  in Bilah his three brown daughter intermarry with Aaron frank who be a  gentleman of large fortune and in great esteem Mr heart in order to engage he  to marry his daughter give he pound for a portion and some time after add  pound more to mrs levys fortune to make her equal with Bilah the wife of the  say Aaron frank but he give nothing more to sincha as she be go well provide  for under her marriage article in Rachael the four daughter intermarry with  Michael Adolphus but Mr Adolphus be a gentleman of no large fortune Mr heart  in order that his say daughter Rachael may live in the same rank of life as  his other daughter think proper to settle a annuity upon her for life of pound  per and to which he afterward make a addition the say Isaac frank who die in  October by his will give his say wife pound sterling and all her jewel not  exceed pound and all his plate linen etcetera in both his dwellinghouse and  also a annuity of pound during her widowhood and which by his will he declare  to be in satisfaction of all claim and demand she may have upon his real or  personal estate by virtue of a certain deed or paper write thentofore sign by  he in the Hebrew language meaning the say marriage article or otherwise  howsoever and appoint the say Aaron frank sole executor of his will who duly  prove the same and pay mrs frank her legacy and her annuity till she die in  January in hyam heart the only son of Moses die intestate and unmarried in  November the appellant intermarry and on the that of December follow Henry  Isaac frank be by a inquisition take upon a commission of lunacy find to be a  lunatic and the say Aaron frank be appoint committee of his personal estate  mrs Judy levy survive her husband Elias who leave issue by her only one  daughter who die intestate in mrs Bilah frank wife of the say Aaron frank  likewise die in leave Phila frank and Priscilla frank the infant her only two  daughter and no other issue mrs Adolphus be still live but have not nor ever  have any issue Moses heart die in November have on the d of April precede make  brown er p his will and appoint the say Michael Adolphus together with Joseph  Martin and Lazarus Simons executor thereof and he afterward make several  codicil and by his say will and codicil he confirm the settlement make on the  marriage of his say daughter Rachael and give life annuity to his three sister  Margoles the wife of Mr Lazarus Simons and the respondent Judith heart and  Jacobed heart spinster and several other legacy and annuity and Chargeable  therewith he give the residuum of his estate to his executor in trust for his  two daughter mrs levy and mrs Adolphus and the issue of the latter if she  shall have any and after the decease of his brown say daughter if mrs Adolphus  shall die without issue then in trust for his say three sister and the  survivor and survivor of they and after their deceases in trust for the  respondent Moses and Naphtali heart the two son of his half brother Solomon  heart and their issue and in default of issue by they then in trust for his  right heir but he do not in such will so much as mention the name of his grand  child Henry Isaac frank and the appellant Phila or either of they in one of  the codicil however there be the follow clause whereas I give so large portion  to my soninlaw and the immense sum they have get by my mean and also the large  estate they be and will be possess of be the reason of my not leave my dear  grandchild meaning the appellant Phila and her brother and the daughter of  Aaron frank any legacy and I do hereby declare that I always have and have the  great love and regard for they and wish they health and long life that they  may live and enjoy their plentiful fortune the executor of Mr Moses heart  prove his will and codicil in the prerogative court of Canterbury and possess  themselves of his personal estate and as trustee under his will enter on and  receive the rend and profit of his real estate consist partly of freehold and  partly of copyhold exclusive of the real estate which he be seize of at the  time of enter into the marriage article and soon after Mr heart be death the  appellant apply to the executor for a account of the estate and satisfaction  of their claim under the say marriagearticle but which the executor refuse to  give on pretence that Mr heart be impose on in enter into the say article if  he real execute the same and that they be not bind on he or his estate  whereupon the appellant in Trinity term exhibit their original bill in the  court of chancery which be afterward amend against the respondent set forth  the say article and the several other matter before state and insist on a  satisfaction of their claim under the article out of the estate of Moses heart  who have it not in his power to dispose of his estate by will contrary to the  tenor of the say article so far as concern the right and interest of the  appellant under the same or so as to deprive they of the benefit thereof and  that he himself be sensible thereof and well know the same and have in his  lifetime produce the counterpart of the say article to one or more person and  speak and discourse of the content thereof and consider the same as bind on he  and never complain or pretend that he have be anywise impose on therein the  appellant therefore pray by their bill that a account may be take of the say  Moses heart be estate and that they may be pay such share thereof as they be  entitle to under the say marriagearticle and that the article may be establish  and carry into execution to this bill the respondent put in several answer and  such of they as be claimant under Mr heart be will insist that he brown be  unacquainted with the language and character in which the article be write be  in case he sign the same impose upon therein that he always understand the  article to be only a Ketuba which do not bind the father of the bride but the  husband only and that he have frequent in his lifetime declare that he have  power over his fortune and will dispose of the same as he think fit that it be  in his power to give and devise his real and personal estate as he have do by  his will and that the appellant or either of they have no right to any part  thereof under the say marriage contract the respondent Joseph Martin Michael  Adolphus and Rachael his wife Lazarus Simons and Margoles his wife Judy levy  Judith heart and Jacobed heart Naphtali heart and Moses heart think proper to  exhibit a cross bill against the appellant and the say Aaron frank and his two  daughter Phila and Priscilla frank thereby allege among other thing that Isaac  frank be at brown er p the time of his intermarriage with sincha possess of a  small fortune and that Moses heart not only give he pound as the portion of  sincha with proper and suitable clothes but do also at or about the time of  such marriage give or pay unto the say Isaac frank pound which appear by entry  make by Isaac frank in book keep by he and also by entry in book keep by Mr  heart be banker that Moses heart and Isaac frank profess the Jewish religion  and that it be usual for person profess such religion upon their marriage to  enter into and sign a write call a Ketuba in the Hebrew tongue that in  conformity to such custom there be on the marriage of the say Isaac frank with  the say sincha heart not only a Ketuba enter into by they in the ancient  Hebrew tongue but that there be also a agreement or proper deed of settlement  draw in the English tongue and sign by the party thereto or otherwise proper  acknowledge or agree to be the settlement make on the say marriage as a  provision for the wife and child of the marriage that if Mr heart do execute  or sign such Hebrew write or the duplicate thereof the same be a fraud upon he  and that he be impose upon therein and that such Hebrew write be deliver to he  as the Ketuba make on the marriage of his say daughter sincha and that he  believe it to be nothing more than a Ketuba never look upon the same in his  lifetime as contain any agreement therein which will be bind on his estate and  fortune and that in fact such Hebrew write if real execute or sign by Mr heart  which they do not admit do not as they insist contain any agreement whatever  which ought to bind his estate and that he have no valuable consideration for  enter into the same the bill also charge that the appellant or Aaron frank  have in their custody the English contract which have be enter into on the  marriage of the say Isaac frank with the say sincha and that be advice or  believe that neither the child of the say sincha or Bilah will be title to any  part of Mr heart be estate under the say brown Hebrew contract in case such  English agreement or any copy or minute or draft of such agreement be to  appear or be produce the appellant conceal the same and the say copy and seat  up a claim under the Hebrew contract the bill therefore pray that they may be  decree peaceable and quiet to enjoy their several legacy under the will and  codicil of Moses heart free and discharge from all claim and demand to be make  on they by or under the say Hebrew contract that the plaintiff may have a  discovery of the several matter mention in their bill and that the Hebrew  contract may be deliver up to be cancel the appellant by their answer to this  cross bill deny the several charge therein and set forth a copy of the English  blank and unexecuted ingrossment find among Mr Isaac Frankss paper and deny  that they know or believe there be any English write enter into on the say  marriage or that they ever see any agreement or write make or intend to be  make on such marriage except the Hebrew contract and except that they have  find such English ingrossment as aforesaid which they have never see or hear  of till after the death of Moses heart they say they believe Mr heart  understand the nature and force of the say Hebrew contract and the language in  which it be write and that he can not be impose upon therein if he have be  ignorant of the language because the same be read and explain as usual at the  time of the execution that such contract total differ from a Ketuba which be  always in one form and be consider as a obligation upon the husband only to  provide his wife with a small sum of money that the Ketuba be a instrument  enter into accord to the Mosaic law by the husband and be necessary to make  the marriage valid and be execute by the husband only and deliver to the  father of the bride who never execute any duplicate thereof whereas the  contract in dispute be a obligation on the father as well as the husband and  be sign by both that Mr heart from the time of the marriage to the time of his  death look upon the say contract to be bind on his estate and fortune and have  make several declaration to that effect the appellant also state particular as  they have do by their original bill the nature of the Hebrew instrument in  question that the same be call a shtor which word in the Hebrew language  signify a contract and that as distinguish from other contract in general it  be call a shtor chozi chelec zachar which word in the Hebrew language signify  a contract for the half of a male share that the same be the common and know  description of such a contract and that such marriage contract when enter into  between germane jews as Moses heart be be always in the Hebrew language brown  er p both cause be at issue several witness be examine by all party in the  original cause but the respondent do not brown attempt to establish any of the  allegation of their cross bill nor do they examine any witness in the cross  cause most of the witness give a account of the nature of this deed and that  the same contain a contract call in the Hebrew language by such name and of  such import as aforesaid and that the same be the common and know description  among the germane jews of such kind of contract and the respondent witness as  well as the appellant agree that it be very frequent for germane jews follow  commercial business either in Germany holland Poland or England in order to  avoid the part with a large share of their estate in portion their daughter in  their lifetime to settle by contract of this kind half a share of a male out  of what the father shall die possess of on the daughter marry and her issue  and if a Jew enter into such contract have a son who afterward die which be  the present case the contract be still bind and that the shtord daughter or  her issue will still be entitle to the share stipulate by such shtor or  contract and the respondent as well as the appellant witness also say that  when a Jew enter into a contract of this kind he can not make any subsequent  will even in favour of his wife or child to the prejudice or injury of the  stipulation as in such contract and Abraham Elias one of the witness say he  give a shtor on the marriage of his daughter and Solomon Nathan another of the  witness say he receive a contract of the like nature on his marriage the  appellant witness also prove that Mr heart well know the nature and effect of  this contract and that the same be pen in the strong term that can be use be  write by the rabbi Aaron heart the brother of the say Moses heart and be  execute with all the formality and solemnities necessary to establish and  strengthen a Jewish contract that it be always usual before the execution of a  contract of this nature to read it over distinct and to explain the content  thereof to the party and witness and that the party declare to the witness  their assent thereto that there be two part execute one of which remain with  Mr Moses heart and the other with Mr lsaac frank the say Aaron frank examine  by order prove that Mr heart in his conversation with he on occasion of the  treaty of marriage between he and the say Bilah which be five year after the  death of hyam heart his son have recognize the say contract and admit that he  be bind thereby the plaintiff in the cross cause have give no evidence of any  imposition on Moses heart or of his ignorance of the nature and effect of the  say contract and the contrary have be prove by the appellant witness think  proper on the hear to waive their objection as to any fraud or imposition on  Mr heart therein on the that that and that of may both cause come on to be  hear together before the Lord keeper Henley when his brown lordship be please  to order and decree that the bill in both cause shall stand dismiss without  cost from this decree or order of dismission the plaintiff in the original  cause appeal insist c Pratt t jewel that this be a marriage contract by which  the lady father stipulate to give something more at his death than the portion  then advance and for the performance of this agreement undertake that this  future or additional portion shall bind himself and his child after he as a  absolute debt so that this further provision whatever may be the quantum of it  have the sanction of a solemn bind and be ground upon the high consideration  that of marriage that this additional portion be to take place of every  testamentary provision for when the shtor say the daughter and her issue shall  inherit half the share of a son which be twice repeat it be the same thing as  if it have say shall receive the same at the time of the father death the word  inherit not be use to denote the mode of descent in which sense it will be  improper if apply to the course of descent accord to the law of England but  only to mark the time when the daughter be to take this share out of her  father inheritance and the witness all concur in say that the principal view  of such a instrument be to secure this future portion by control the father  power of dispose of his whole fortune by his will that by the Jewish law a  marry daughter have receive a portion at her marriage be total exclude from  any share of the father estate if he die intestate and therefore this  instrument be equal necessary to secure the share in case of a intestacy as  against the disposition of a will the only seem brown er p difficulty in this  case be to ascertain what that share be which by the shtor be call half the  share of a son as to which it be conceive saint that the shtor itself have  direct and plain describe the quantum of this share in one case videlicet if  there have be any son actual exist at the time of the testator death for in  that case after the unmarried daughter have take the like portion out of the  estate which mrs frank have receive the residue be to be divide thus two  sharer to the son and half a son share to each of the daughter here therefore  the half share of a son be clear describe and the rule be lie down in one case  express will be a rule to find out what this half share of a son must be in  every other case which happen not to be particular express d that in the case  which have happen of no son live at the time of the father death it be  apprehend that mrs frank become entitle to a equal share of the whole with the  rest of the testator daughter consider the same as to be divide among they  because the shtor declare there be to be a strict equality among the daughter  as between each other and as mrs frank be to take a equal share at least with  the sister against the claim and interest even of a son a strong she ought to  take a equal share with they when that more favour object who be to be first  and brown more ample provide for be remove but d if the true spirit of the  deed can not in this case prevail against the letter and a equal share with  the daughter of the whole there be no son can not come within the description  of half the share of a son then in order to divide the estate accord to the  letter a son must be suppose and the estate divide accord and mrs frank issue  be entitle to the same share as if a son have actual exist at the father death  this be the small share that mrs frank can be reduce to for if she be not  entitle to this she be entitle to nothing and then the contract on Mr heart be  part must have this strange meaning that he will give his daughter a  considerable part of his estate beyond her present portion even though the  necessary provision for son may make it inconvenient but that in default of  son when that inconvenience be remove he will give her nothing but this be a  proposal which no father in his sense will offer and which no husband will  accept but it be say that this be a deed of jealousy only to operate in case  of a will actual make in favour of son and to guard against the father  partiality to his male issue particular to a belove son the true reason  however of put that case be to obviate a doubt which may have arise if Mr  heart have give a large portion to one of his son than he be empower to do by  the rule of equality in the Jewish law and have give less to the other for in  that case the shtor may have be evade to prevent which the father engage in  favour of mrs frank to give her even more than the common half share of a son  in this view the case of a will make a extraordinary provision for a belove  son be so far from be the only case in which the deed be to operate that it be  a strong case to show that this half share of a son be in all event and in  every case whatsoever to be secure in favour of mrs frank and her issue but if  the meaning of the deed be otherwise and as the respondent contend the chance  and engagement will be quite nugatory and the daughter share will be more or  less or nothing accord to the pleasure or caprice of the father for accord to  this the father must have son he must make a will and the daughter share must  be govern by the share which he shall think fit to give to some of his son by  that will now beside the absurdity of such a engagement which be not to take  place if there be no son or no will or where the son be disinherit the value  of such a contingency be too inconsiderable and the benefit of it too  precarious to be the object of a marriage settlement as to the dismission of  the cross bill without cost it be apprehend there be not the least reason or  foundation for bring it all the matter put in issue by that bill be full in  issue in the original cause the several fact allege and rely upon in the cross  bill and particular the charge of fraud and imposition and there have be a  English contract enter brown into between the party which will supersede or  take away the effect of the Hebrew contract in question be false and  groundless in themselves whole unsupported by any proof and so far as they be  capable of be contradict by any direct and positive proof be full contradict  by the proof on the part of the appellant the only part of the relief brown er  p pray by this bill which be proper for a decree if the fact have warrant it  be to have the contract deliver up to be cancel for fraud and imposition but  this total fail and be desert independent of this what be further pray by way  of relief be not only unnecessary but in its nature improper for a decree  consider therefore as a mere bill of discovery the plaintiff ought accord to  the course of a court of equity to pay the defendant their cost especial in  the present case where they have not avail themselves of any discovery against  the defendant but the same have turn whole against themselves on the part of  the respondent the executor of Moses heart it be argue e will g perrott that  on the contingency which have happen in his family the four article of the  Hebrew instrument on which the appellant find their claim can have no effect  or operation the provision therein in favour of mrs frank be to take place  only in case Moses heart shall leave issue male to which event the clause  throughout be plain relative it be a natural jealousy to be entertain by Mr  frank that Mr heart will in case he have son be incline to give the bulk of  his fortune to they and for this reason it be stipulate that mrs frank her  husband and issue shall have half the share of what he shall think proper to  be inherit by the most belove of his son this instrument therefore seem  calculate only to prevent the partiality which Mr heart in conformity to the  Jewish law may show in favour of son to the prejudice of daughter for it be  observable that Mr heart do not mean to give any advantage to mrs frank over  the rest of his daughter they be all put upon the same foot in case there  shall be son and if there be no son Mr frank do not apprehend that any  partiality may be show as between the daughter in that event Mr heart be at  liberty to dispose of his fortune as he please mrs frank trust that she shall  be able to preserve and merit as great a share in her father affection as any  of her other sister suppose however that this shall not be the true  construction but that Mr heart ought to be consider as have enter into a  agreement for the distribution of his whole estate among his child yet this  stipulation must be understand as intend to take place only in case of his  intestacy for it can not be imagine that Mr heart who have then a son and four  daughter the young only two year old and may probable have have many more  child shall mean to preclude himself from make such a provision for they as  their conduct of which he can then have no experience may deserve he have also  at that time several poor relation brother and sister brown who be support by  his bounty and who at his death may be leave total destitute of subsistence if  he have restrain himself from make any provision for they by his will beside  Mr heart be riches be all of his own acquire and his child have not any claim  thereto as a patrimony descend to he from their ancestor this instrument  therefore may be a proper division of his effect in the case of his intestacy  but can never be intend to control any future disposition which he may make of  his fortune by will but suppose neither of these to be the true construction  yet in every sense which the appellant attempt to put upon this clause it will  appear to be a unreasonable agreement preclude Mr heart from the future  disposition of his estate and render his child total independent of he the  instrument also be of so complicate a nature and so obscure word that neither  the Jewish rabies can give it any precise denomination nor be the court able  to put any construction upon it agreeable to the pretention of the appellant  which will not be liable to infinite difficulty absurdity and contradiction it  be therefore conceive that as the appellant bill be bring for the specific  performance of a agreement so circumstance the court do right in dismiss it  and more especial because if they have any right they may still have their  remedy at law on behalf of the rest of the respondent who be legatee under Mr  heart be will it be contend c York a forester that the several settlement make  by he on the marriage of his other daughter to some of who he give better  fortune than to his daughter sincha and his procure the obscure Hebrew  instrument in question the very name of which be not agree upon by the Jewish  witness to be translate into English a little before his death and a  declaration that the suppose incapacity he labour under of dispose of his  fortune by will be contrary to his intention manifest prove that he be not  only not master of the content of that instrument brown er p but that he never  mean to make so improvident a bargain as by stipulate to Isaac frank and his  child a certain sum out of his fortune equal to a moiety of the best belove  son to tie himself up in all event from provide for his wife or other relation  and this for no other consideration move from Isaac frank than a eventual sum  of pound to the wife out of his estate in case he die after the expiration of  two year from the marriage word must be very clear and positive indeed to  enforce the belief of so irrational a agreement that the most consistent and  rational construction of the four article seem to be this that it be adapt to  the event of Moses heart be leave male issue who by the father partiality may  inherit or by will succeed to his whole fortune without the hope of any  accession to Sinchas portion notwithstanding his estate may be great improve  before his death it be therefore a stipulation to prevent the effect of such  partiality if Moses heart shall make a testament in favour of a son or son  brown this instrument provide a addition to her fortune equal to half the  share of the most belove son but in case he shall die intestate the instrument  lie down a rule of distribution videlicet that after deduct a portion of pound  for each of his unmarried daughter equal to that portion with which he have  advance sincha in marriage the residue of his estate shall be divide between  his son and his daughter by a peculiar rule of distribution under the  instrument correspond neither with the Jewish law or the law of England  videlicet that each daughter shall take only a moiety of that provision which  be give to a son this rule do not correspond with the Jewish law because in  case of leave son daughter be entire exclude nor be it agreeable to the law of  England which distribute personal estate equal among all the child and  transmit the real estate by descent to a old or only son without admit the  daughter to share in it but this construction necessary suppose that the  clause in question be adapt to the event of Moses heart be advance a son in  the world during his life or leave issue male at the time of his death if he  shall leave no son the instrument be not intend to operate at all the cause of  jealousy and suspect partiality natural cease and it be not to be presume that  in case his daughter only shall survive he he will prefer any of the young and  their issue to sincha who be the old child it seem therefore the most probable  construction to say that Moses heart the father do not intend by the clause in  question to lie down a immediate absolute rule for the disposition of his  fortune to control all future will which the situation of his family may  induce he to make but mere a contingent relative rule apply to the probable  event of his son life and a suppose partiality in favour of his male issue  that every construction attempt by the appellant be attend with insuperable  difficulty the pretence that the four article fix his daughter Sinchas share  to half the share of the most belove son and take from the father the power of  make a will be inconsistent with the instrument itself for if the father power  of show love and affection to any son be take away the measure of the daughter  share be go the next pretence that though he can not bar the interest of this  daughter by will he may bar that of his other child be equal inconsistent with  the instrument which provide pound for such unmarried daughter for no other  reason than that he have give to this daughter that value and as express give  each of his other daughter half a share of a son as he do to sincha hereby  establish among they a equality of fortune and a equality of right also if  this instrument can give any and the last pretence that the half share of a  son relate not to any act of love or preference in Moses heart but to the  right of primogeniture under the Mosaic law be no less contradictory to the  instrument than the two former since it establish a equality between the son  by give they two share and thereby brown exclude the Mosaic right of  primogeniture so that from whatever part of the four article of this  instrument the appellant draw a argument in their favour that same or some  other part of this article overturn and contradict it but the respondent need  not labour to give this instrument a meaning it be enough that the appellant  who claim under it can not give it a rational one and as Moses heart have die  without a son there be a end of every thing they can urge the share of a son  be the measure for determine Sinchas half share and there be no son to inherit  a share either by the predilection of his father or the Mosaic right of  primogeniture no measure for determine her share ever exist and consequent her  and her child pretention such as they be never arise brown er p after hear  counsel on this appeal it be order and adjudge that the same shall be dismiss  and the order therein complain of affirm jour vol p