atkins case Samuel morris and Elizabeth his wife plaintiff gyles burrow and  John burrow Samuel wollaston and mary his wife edward rise and Ann his wife  defendant February the rd SC post vol Eq Cas Abr pl S c vin Abr pl n SC a  father have five child three of age and two infant enter into a agreement with  they that he will come to London and take up his freedom provide they will  release any right or demand they may be entitle to in respect of the father  personal estate by virtue of the custom of the city of London a agreement draw  up and execute by the father and the three child who be of age the bill bring  by the plaintiff and his wife one of the daughter who be of age at the time of  the agreement for her customary share of the father estate he have in his life  time take his freedom by Geo c S it shall be lawful for all person who after  the first June shall become free of the city and for all who at that day shall  be unmarried and not have issue by any former marriage to dispose of their  personal estate John Burroughs have five child and live in the country enter  into the follow agreement with they which be draw up and execute by the father  and three if the child who be then of age the other two be infant and  therefore it be not execute by they the agreement date the that of September  recite whereas John Burroughs of Thames in the county of Oxford draper be of  opinion he may great improve his estate by follow his trade in the city of  London and for the better perform the same apprehend it necessary to buy his  freedom of the say city and whereas the say John Burroughs be inform that in  case he can purchase his say freedom he shall thereby disable himself from  absolute give or dispose of his personal estate by will or otherwise in such  manner to and among his child as he can now do not be a freeman and whereas we  who name be hereunto subscribe child of the say John Burroughs be desirous our  say father shall become a freeman of the say city in order to improve his  estate and be content and agree that our father shall have and retain to  himself full power and authority to give and dispose of his personal estate in  such manner as if he be not a freeman of the say city now know all man by  these present that we George Burroughs Elizabeth Burroughs and Phillis  Burroughs child of the say John Burroughs do hereby for ourselves executor  administrator and assign several and respective release discharge and disclaim  any right title interest claim and demand whatsoever of in and to all and  every part of the personal estate of the say John Burroughs that he shall die  possess of and they agree that if John Burroughs the father shall leave a will  they will not claim any other share of the estate than what shall be give  respective to they by such will but upon payment of whatshall be respective  giver they by such will they re atkins spectively and their respective  executor c will shake out or off a release of all claim c to any part or share  of the personal estate of their father whereof he shall be possess at the time  of his death John Burroughs the father remove to London and in become a  freeman and continue so to his death and have make a will thereby declare that  in case any of his child their husband or representative shall not abide by  his will but endeavour to have his estate divide accord to the custom of  London and shall atkins er p not shake out or off to his executor within six  month after his decease release of all claim to any part of his personal  estate under the custom of London that then the legacy thereby give for the  benefit of such child and to their husband child or child shall be void and  sink into the residuum of his personal estate he appoint gyles Burroughs among  other his executor who have alone prove the will the bill be bring by the  plaintiff and his wife one of the daughter of John Burroughs who be of age at  the time of the agreement and party thereto in order that the agreement and  will may be set aside in regard the plaintiff Elizabeth and her brother and  sister have no consideration for the agreement but be a mere voluntary act be  entire under their father power and also that gyles Burroughs may account with  the plaintiff for the testator personal estate and that he have give the  plaintiff Elizabeth no more than pound on her marriage which be far short of  what he give the rest of his child that the plaintiff may be at liberty to  bring their advancement into hotchpot and be pay their customary share of the  testator personal estate and also their share of the dead man part the  defendant gyles Burroughs admit he be advance in his father lifetime with  pound and submit whether by virtue of the agreement the testator have not a  power to dispose of his personal estate and that the reason the defendant and  his sister Ann rise do not execute the same be because they be both under age  at the time of the testator purchase his freedom the defendant John Burroughs  by his answer set forth that his father advance he pound pound and no more  over and above pound that his father make a present of to his wife soon after  the defendant marriage and which he insist ought not to be reckon any part of  his advancement nor what his father have make present of to this defendant  child the defendant Samuel Wollaston and mary his wife who be one of the child  of John Burroughs insist that a farm call Brill in Buckinghamshire purchase by  John Burroughs at the time of mary marriage and settle on Samuel and the use  of the marriage ought not to be consider as money advance by the father but as  a settlement of real estate and therefore be not to be bring into hotchpot for  the plaintiff it be urge there be no colour that the word of release in the  agreement can operate as such atkins even though the father at the time of the  agreement have be a freeman there be no pretence of any right to any part of  the father estate vest in a child whereon the release can operate much less as  the father here be not so much as a freeman at that time nor can this  agreement be bind as such in a court of equity for want of a consideration and  likewise the inequality of the thing with regard to the child among themselves  that three of they shall thereby be deprive of their orphanage part and the  other two by that mean may have ingross the whole e contra it be insist though  this shall not be good as a release for the reason give yet that it be bind as  a agreement that this bill be bring to deprive the party of the legal remedy  which they have at law for breach of the covenant and be a very different case  from what it will have be if the bill have be bring to carry the agreement  into execution that here be a consideration move from the father the  disability he lie himself under with regard to any wife and two of his child  of dispose of his estate at his discretion that the father in confidence of  this agreement take up his freedom and the agreement be thereby execute on his  part there be no reason therefore why the child shall be this charge of their  engagement that on the marriage of the plaintiff Elizabeth and pound give her  as a marriage portion the father very probable will have take care to have  declare and settle that on her express in exclusion of her from any orphanage  share if he have not apprehend she be before bar of any claim that the  plaintiff can now object to the infancy of the other child be as full apprise  of that at the time of enter into the agreement Lord chancellor as to the  objection that this be a voluntary agreement a court of equity will not  interpose it be certain a general rule where it have be enter into without any  fraud but be not applicable to this particular case for here the bill be bring  to have a distribution of the orphanage share which the plaintiff be entitle  to and be a legatee likewise under the will of her father and the whole matter  appear on the face of the proceed the plaintiff therefore have a right in one  capacity or the other to part of the personal estate of the father and have  take a proper method atkins er p in apply to this court for the recovery of it  and I must of necessity determine the merit of this case one way or other and  as incident thereto must enter into the nature of this agreement and consider  the validity of it without have any regard to its be voluntary or not this be  frequent do in similar instance in the case of a equity of redemption no  decree can be make without determine first in who the right of redemption S  the same likewise where the benefit of a trust be in controversy between two  volunteer as to the agreement the question be how far it be bind and in the  first place if it may operate as a release f it have be atkins right give up  at the bar that it can for want of a interest in the child for any release to  operate upon because the child have neither law in re nor ad remember the  whole be in the father during his life though it can not operate as a release  yet it may as a agreement if make upon a valuable consideration Blundell v  Barker p W Cox v Belitha p W Lockyer v savage stram Metcalfe v Ives ante and  this point have often be determine where a release have be give by a child to  a parent though a freeman at the time a strong ought the rule to hold here it  be say the act of the father in take up the freedom be a consideration move  from he towards the child but the father do not so much as covenant by the  agreement to take up his freedom the recital be that the father be of opinion  lie can improve his fortune by so do but whether he will do so or not be a  matter altogether in his discretion so that he may have take it up at a period  of life most agreeable to himself or not at all nor can that act of his at  that time be consider as a thing beneficial to the child for suppose the  agreement to be bind whatever acquisition he make will have be entire at his  own disposal he may spend every shilling of it may invest it all in land in  order to evadeathe custom so that any advantage accrueing to the child must be  mere contingent and accidental but the most material part of this case and  what I lie the great stress upon S that the end proposed by the agreement be  nugatory and can not possible be obtain on ei her side four want of make all  the child party to the agreement which can not be do here two of they be  infant this affect the consideration of the agreement with regard to the child  among themselves for if the two who be infant do not consent when they come of  age they then may have engross the whole orphanage part in exclusion of the  rest the agreement be find likewise manifest on a mistake of the father and  must in the nature of the thing be altogether ineffectual the father be under  the same difficulty of dispose of his estate as he will have be though no such  agreement have be make agreement of this kind ought certain to receive no  encouragement or favour and it be a rule in equity to relieve against such as  be find on mistake the custom of London itself admit of no bar of this kind  nothing but a actual advancement of a child by a father will have that effect  where the money be declare to be give as such and the quantum of money not  ascertain court of equity have indeed go further that when a father on the  marriage of his daughter have give her a portion and that be agree between the  parent and child to go in satisfaction of any demand the child may afterward  have on the father estate this have be hold to amount to a bar of a that claim  of that kind and be so determine in the ease of Metcalf v Ives vide ante  atkins it be so hold also in the case of blundel v barber p W at the roll  though on appeal to ld Macclesfield the matter be never final determine lucas  case in law and equity and there be a great deal of reason this shall be so  for the child have no right till after the death of the father his advancement  of a sum of money for their preferment in marriage be a meritorious act in the  father and a valuable consideration move from he I shall think likewise if a  father shall give money to put a son out apprentice or advance he in life by  set he up in trade c that will have the same effect hall v hall vern see smith  v fellow post vol but as the parental authority be great to prevent any undue  influence it may have in prejudice of the child there must in all instance of  this kind be a valuable consideration move from the father and be actual  benefit accrueing to the child see heron v heron post vol however in the  present case what I ground my opinion upon be that that e child be not nor can  they all of they be make party to the agreement if they have be all of age and  have enter into this agreement such a case may fall under vele different  consideration but two of they be infant leaves it open to several chasm and  absurdity atkins er p as to what be insist on by the defendant woollaston he  have sign a note give to the father to this effect receive c pound S be so  much more money advance for my wife fortune and by his answer confess that  pound the purchase money of the estate so settle be include in the pound S  Lord chancellor hold clear that transaction be to be consider as money advance  by the father and must be bring into hotchpot it be resolve in this case  likewise that where a wife be compound with on marriage by have a jointure  settle on her in lieu of her customary share or have some other equivalent  give to bar her of such claim the husband in such case be not to be deem a  purchaser of b er three so as to have a right of dispose of it in prejudice to  the child and they to come in only for a three part as their orphanage share  but it be to be consider as if there be no wife in the case at all and the  orphanage share then become a moiety of the father estate Metcalf v Ives ante  note it be likewise resolve that where money be express to be advance in part  of a fortune though of small amount yet it must be look upon as a advancement  but if petty sum be give at different time by a father to a child and not say  to be as a portion but by way of present or otherwise they be not to be bring  into hotchpot and so determine in the case of Whitcombe v Whitcombe at the  roll with which the Lord chancellor concur see Hume v Edward post vol and p W  n Elliot v collier Ves post vol S c the father in this case have reserve a  annuity to himself out of the estate purchase by he and settle on the marriage  atkins of his daughter to one of the defendant as before mention and on the  question whether in the money to be bring into hotchpot a regard ought to he  have to that annuity so reserve and the defendant for that reason not oblige  to bring the whole money into hotchpot Lord chancellor hold clear that the  whole must be bring in and it be agree to have be so determine in the case of  Edward v freeman Eq ab pt p W S c that all must be bring in which the child be  entitle to at the death of the father for at that time the annuity cease the  child who be infant at the time of the agreement but be now of age have a  large share of the father estate under the will be very ready and Willing to  acquiesce under the agreement but it be hold clear the validity of the  agreement must depend on the circumstance of thing at the time the agreement  be make and can be make better or worse by any subsequent fact there be a  provision make by the will that any legatee controvert the disposition the  testator have thereby make of his estate shall forfeit his legacy this be hold  clear to be in terror only and that no such forfeiture can be incur by contest  any disputable matter in a court of justice so mosely v mosely Charles Rep  Powel v Morgan vern Loyd v spillet p W post vol SC contra where there be a  devise over upon breach of such condition cleaver v spurling p W vide web v  web Cox p W note the plaintiff must renounce the legatory part for there can  be no take by the custom and under the will too in any instance whatever pugh  v smith post vol his lordship declare the agreement of the that of September  be voluntary and under the circumstance of the present case ought not to be  consider as bind between the testator and his child and that the plaintiff be  entitle to their customary share of the orphanage part of the say testator  estate which be a moiety of the clear personal estate but that they elect to  claim by the custom of London be not to have any benefit by the testator will  and that pound pay by the testator for the farm at Brill in Buckinghamshire  for the defendant mary woollaston be to be look upon as so much money pay  towards her advancement and therefore order a account to be take of the  personal estate of the testator come to the hand of his executor and after  such account shall be take the defendant gyles and John Burroughs mary  woollaston and Ann rise the child of the testator be to be at liberty to make  their election as between themselves whether they will take by the will of the  father or by the custom of London Reg lib b fol atkins er p