brown case george bow appellant earl of shrewsbury and other respondent that  February Mews dig go twelve in what case money covenant by marriage article to  be lie out in land and not lie out shall still be consider as money and go to  the personal representative of the party entitle to the money in prejudice of  the heir a papist by marriagearticle previous to the disable statute that and  that will c repeal by and Vict c S covenant to lie out pound in the purchase  of land the money be never lie out and therefore shall be still consider as  money and go to the personal representative instead of the heir though that  heir be a protestant decree of the commissioner of the great seal affirm the  point on which case of this nature in some measure differ seem to be the  follow I e whether the mere circumstance of the fund remain in the shape of  money in the hand of the person absolute entitle to it in all event shall of  itself be evidence of the party intention to give it the quality of personal  estate for the case agree that any proof of such intention will conclude the  question and if not whether the heir have any equity brown er p against the  personal representative in this respect see Edward v Warwick countess p wms  and Mr Cox note thereon ante can of this title Chichester v Bickerstaff vern  Lingen v Sowray p wms Lechmere v Carlisle e p wms and Mr Cox note there Talb  Guidot v Guidot atk crabtree v bramble atk Bradish v gee Amb Hewitt v wright  bro c r Pulteney v Darlington e bro c r Rashleigh v master bro c r by article  date the that of march between Ann lady Belasyse relict and one of the  executor of John Lord Belasyse decease of the one part and John Talbot of  Longford in the county of Salop Esq of the other part recite that a marriage  be agree upon between the say John Talbot and the honourable Catherine  Belasyse one of the daughter of the say Lord and lady Belasyse and that in  consideration of such marriage and of pound secure to be pay as therein after  mention unto the say John Talbot for the marriage portion of the say Catherine  several of his estate consist of diverse manor land tenement and hereditament  in the county of Salop Gloucester Hereford Leicester and Warwick be by he and  other by indenture tripartite bear equal date with these article settle and  assure to himself for life and then as to part to the say Catherine for her  life in jointure with remainder over and further recite that Hugh Lord  viscount cholmondeley stand indebt to the estate of the say John Lord Belasyse  in pound Thomas broom whorwood Esq in pound and Thomas white Esq in pound upon  several mortgage she the say Ann lady Belasyse in consideration of the say  marriage covenant declare and agree to and with the say John Talbot his  executor and administrator that such mortgage for the say several sum amount  to pound shall from thenceforth be hold by the several person interest or  estate therein upon the follow trust videlicet as to pound parcel of the say  pound and as to the interest then due on all the say principal sum upon trust  for the say Ann lady Belasyse and the other executor of the say John Lord  Belasyse and as to the principal sum of pound brown residue of such pound and  the interest from thenceforth to grow due for the same pound in trust for the  say John Talbot his executor and administrator for and in satisfaction of the  say marriage portion to this intent and purpose nevertheless and under this  express agreement make between the say John Talbot and the say Ann lady  Belasyse that pound only of the say pound with the interest henceforth to grow  due for the say pound shall be take and apply for the sole use and disposal of  he the say John Talbot his executor administrator and assign and that the  pound residue of the say pound shall with what convenient speed may be be call  in and the say John Talbot do for himself his heir executor and administrator  hereby express covenant promise and agree to and with the say Ann lady  Belasyse her executor and administrator that he the say John Talbot his  executor or administrator shall and will with what convenient speed may be  after the say marriage shall be solemnized call in the say pound residue of  the say pound principal money and dispose the same whole in and for the  purchase of land which shall be situate within the county of Salop Gloucester  Hereford Leicester Warwick Chester Stafford or Worcester some or one of they  the title whereof shall be approve by the say Ann lady Belasyse her executor  or administrator or her or their counsel learned in the law and after such  purchase make shall and will settle the land so to be purchase to the use  herein aftermentioned that be to say to the use of the say John Talbot for and  during the term of his natural life without impeachment of or for any manner  of waste and after his decease to the use of the say Catherine for the term of  her natural life in augmentation of her jointure and after the determination  of the say several estate limit to the say John Talbot and Catherine to the  use of the say Ann lady Belasyse and Thomas earl falconberge and their heir  during the natural life of the say John Talbot and Catherine and the life of  the long liver of they upon trust to support and preserve the contingent use  and estate thereof hereinafter limit from be destroy or discontinue and for  that purpose to make entry as occasion shall require but nevertheless to  permit and suffer the say John Talbot during his life and after his brown er p  decease the say Catherine and her assign during the term of her life to have  receive and take the rend and profit of the same premise to his her and their  own use and use and after the several deceases of the say John Talbot and  Catherine to the use of the first son and of all and every other son and son  of the say John Talbot on the body of the say Catherine to be beget several  and successive one after another accord to their seniorities of age and  priority of birth and the heir male of their several body issue the elder of  such son and the heir male of his body issue brown be always prefer and to  take before the young of such son and the heir male of his or their body issue  and for default of such issue to the use of the say Ann lady Belasyse and  Thomas earl falconberge their executor administrator and assign for the term  of year without impeachment of waste upon the trust and as a supplemental  security for the better and more speedy raise of the portion and maintenance  intend for the daughter or daughter of the say John Talbot to be beget on the  body of the say Catherine in case there shall be a failure of issue male  between they as in the say indenture tripartite be mention and under the like  proviso and agreement touch the raise and payment of the say portion and  maintenance as in the say tripartite indenture be mention and after the  determination of the say year term to the use of the say John Talbot his heir  and assign for ever provide always and it be declare and decree by and between  the say party to these present that the interest henceforth to grow due for  the say pound principal money agree to be lie out and dispose for the purchase  of land as aforesaid until the same shall be dispose shall he have and take by  the say John Talbot and Catherine and the survivor of they and after their  deceases in case they shall both happen to die before such purchase make by  those to who use in remainder the land so to be purchase be to be settle as  aforesaid accord to the true intent of these present and as the profit of the  say land so to be purchase and settle be to be enjoy in case such land shall  be purchase and settle as aforesaid the marriage soon afterward take effect  and Mr Talbot by a write under his hand date that April acknowledge that the  say pound have be pay or secure to he to his content and good like and he  thereby release lady Belasyse and the other executor of Lord Belasyse from the  say pound and all demand concern the same but before a proper purchase of land  be find wherein to invest the say pound a act of parliament pass in the that  and that year of king William III whereby it be enact as follow videlicet that  from and after the that day of April every papist or person make profession of  the Popish religion shall be disable and be hereby make incapable to purchase  either in his or her own name or in the name of any other person or person to  his or her use or in trust for he or her any manor land profit out of land  tenement rend term or hereditament within the kingdom of England dominion of  Wales and town of Berwick upon Tweed and that all and singular estate term and  any other interest or profit whatsoever out of land from and after the say  that day of April to be make suffer or do to or for the use or behoof of any  such person or person or upon any trust or brown confidence immediate or  immediate to or for the benefit or relief of any such person or person shall  be utter void and of none effect to all intent construction and purpose  whatsoever it be a fact agree upon as well by the appellant as by the several  respondent to be allow and take for grant on both side in the present  controversy between they that the say John Talbot and Catherine his wife at  the time of the article be Roman Catholic or person profess the Roman Catholic  or popish religion and so continue till the time of their respective decease  Mr Talbot and his wife have issue between they several child who all die very  young in the lifetime of their father and mother mrs Talbot die on the that of  February Mr Talbot survive her and all their child upward of five year and a  half and die without issue and intestate on the d of June possess of a  personal estate to the amount of pound and upward but not of any of the  mortgage mention in the marriagearticle brown er p Gilbert earl of Shrewsbury  after the decease of Mr Talbot obtain administration of his personal estate as  his only next of kin and as such by the statute of distribution be sole  entitle to the whole of his personal estate subject only to his debt and  funeral expense earl Gilbert who be uncle of the present respondent the earl  of Shrewsbury soon after obtain such administration duly make his will and  thereby direct the surplus of his personal estate to be divide into moieties  and give one moiety to his nephew the present earl and his other nephew and  niece and the other moiety to the respondent Maire and make he sole executor  and soon after earl gilbert death Mr Maire prove his will and also obtain  administration de good non of the say John Talbot the earl of Shrewsbury and  his family though near relate to Mr Talbot be only of the halfblood and  therefore his lordship be not his heir at law and for a considerable time  after Mr Talbot death it remain uncertain who be such heir but it be discover  that a ancestor of the appellant Mr bow about year ago intermarry with a  daughter of the Talbot family and there not appear any claimant who seem to  stand near in point of heirship the appellant in Trinity term bring his bill  in the court of chancery against the respondent insist that he be entitle to  the benefit of the say article and to have a specific performance thereof and  pray that the respondent Maire may lie out the pound in the purchase of land  and convey the same to he and his heir and pay he interest for the say pound  until such purchase or otherwise pay he the pound out of Mr Talbot personal  estate with interest from his death to this bill the several respondent put in  their answer brown admit that the pound have not be lie out in the purchase of  land and the respondent Maire admit asset and say that though he have hear of  no person who appear to he near than the appellant in point of heirship to Mr  Talbot yet do not know that the appellant be his heir at law and therefore put  upon he the proof thereof and all the respondent submit to the judgement of  the court in case the appellant be such heir whether he be entitle to have the  pound take from the personal estate and consider as land the appellant examine  several witness to authenticate his pedigree and in proof of his heirship but  no witness be examine on the part of the respondent because the appellant have  enter into a write agreement with they for admit that Mr Talbot at the time of  execute the article be a Roman Catholic or papist and continue to profess the  Roman Catholic or popish religion to the time of his death on the d of  February the cause come on to be hear before sir Sidney Stafford Smythe and  sir John Eardley Wilmot two of the lord commissioner for the custody of the  great seal when their lordship after long debate of the matter be clear of  opinion that the pound ought to be consider as money and not as land and that  the heir at law of Mr Talbot be not entitle to have it pay he or to have the  same lie out in a purchase of land and therefore dismiss the appellant bill  without cost from this order of dismission the present appeal be bring and on  the appellant behalf it be argue c York g perrott that by the marriage  agreement the specific money be make subject to the trust and in the judgement  of a court of equity acquire by force of the covenant the nature and property  of land from the very instant of execute the article that as money thus bind  by covenant to be lie out in land be consider as land many legal consequence  must necessary flow from that notion whether it remain in the hand of the  covenantor or be place under the direction of trustee the rule be the same the  remainder in fee will descend and be devisable as real estate though it be  never lie out during the life of the covenanter and though all the use of the  marriage determine by the death of the wife and issue and the covenanter  himself happen to be the sole survivor and entitle to dispose of the whole  either as land or money at his election yet it shall go to his heir and not to  his executor or administrator unless as owner of the remainder in fee he have  express declare his intention to vary the trust and add the money to his  personal estate but in the present case no express declaration of such intent  appear no act no word be prove which imply it all the brown er p issue of the  marriage die in their infancy the wife outlive her child and at last the  husband be the sole survivor but neither by deed execute in his lifetime nor  by will nor even by parole declaration do any thing to vary the trust if  however the disable statute of brown that and that William III which make  papist incapable of purchase land be the ground of the decree it be submit  that the statute can never operate to make void or impossible a antecedent  covenant or trust for the purchase of land enter into for valuable  consideration such a retrospect by construction will not only be cruel in  itself but contrary to the rule of law land actual purchase by a papist before  that law commence be clear not within it it will have be injurious to the vest  right of party and destructive of contract for sale and family settlement to  have act otherwise the like injury will be do to right vest before the act if  money bind by trust in equity to assume all the quality of real estate be take  to be within it and from hence it follow not only that a protestant wife and  protestant issue will be entitle to have the trust perform but that a papist  shall not lose the benefit for if a specific performance of the covenant or  trust must be decree it must by the rule of equity be decree in toto and be  lawful at the time when the covenant be create the subsequent prohibition  shall not disable the papist from perform that covenant though some of the  trust affect the land to be settle may be beneficial to himself and his heir  much weight be lie in the argument of this cause upon the word of the covenant  which give convenient time to invest the money in land and it be say that by  virtue of those word the covenantor have time during his whole life to make  the purchase and the disable act intervene before any purchase be make he be  absolute discharge by a parliamentary incapacity from the performance of his  covenant but it be submit that this reason can have no weight if the covenant  have direct the money to be lie out in land within six month or any other  short limit time after the marriage and that time have elapse before a  purchase make or the disable statute have pass the breach of it will have bind  the asset of the covenantor at law and the heir will have be entitle to damage  against the executor on the foundation of the covenant and though the present  covenant allow convenient time to the covenantor I e his whole life so that he  can not be charge for a breach of covenant at law yet it must be understand in  this qualify sense unless hasten by the request of the trustee eight or nine  year pass between the marriageagreement and the disable statute it be the  neglect of the trustee not to call for a performance before that law pass and  his negligence ought not to prejudice the beneficiary and trust or affect the  operation of the covenant in a court of equity but suppose the covenant may be  severable after the disable statute and be capable of be perform only in  favour of protestant and not in favour of papist by a actual specific  execution of the trust in purchase land under a decree yet still unless the  covenanter have do some act to declare his intention to discharge the brown  descendible quality which the trust have give to the money his heir may take  it quasi by descent and even if he be a papist the court of chancery may  decree the payment of it to he though that court will not aid he by the  sanction of a decree to lie it out in land and this without the possibility of  any inconvenience design to be prevent by the statute or apprehend in any one  case ever adjudge upon it if indeed after payment of the money under such a  decree the popish heir shall think fit to invest it in land he will do it at  his own peril and the disability impose by law will have the same force  against he as if the money have be original part of his own personal estate  and as there seem to be no ground for contend that the covenant be make void  or impossible by the subsequent disable statute at least to every purpose so  neither be there any colour from the disability impose on the popish  covenantor to raise a presumption of his intent to consider the money as  personal estate so far as concern the use which be within his own power there  be no instance in law where the imply consent of every subject to a act of  parliament have be hold to infer a mutual consent between contract party to  supersede actual precede contract or a intention in any person beneficial  interest in a particular trust to renounce or alter that trust without plain  word or necessary implication upon the act and in this case the policy of  brown er p the disable statute be not advance or support even if the appellant  have be a papist as he be not by change the settle course of equity in favour  of a heir against a executor without such express declaration or act of the  covenanter as will be expect in all other case it be therefore hope that the  order of dismission will be reverse and that the respondent Maire will be  direct to lie out the pound in a purchase of land or pay the same to the  appellant with interest from the time of Mr Talbot death on the other side it  be contend c Pratt r Clayton that Mr Talbot be not limit by the article to any  precise time for lie out the money in the purchase of land and the disable  statute have pass before the money be actual lie out he can not afterward  invest the same in land to the use agree upon and specify in the article that  the appellant can only claim by descent from Mr Talbot as his heir at law and  the ancestor be by the act disable from purchase land or take any interest  therein his heir can inherit nothing in right of such heirship nor take any  thing by descent from such ancestor it be a undoubted and invariable rule in  law that before the heir can in any wise be allow or admit to succeed or be  entitle by descent he must first show that his ancestor be actual seize and  die so seize that it be not necessary to show any express declaration by Mr  Talbot that the pound shall be consider as money and not as land for after  pass the act it become impracticable for he to convert it into land brown and  the operation of the act in disable he to purchase land and in alter the  nature of the estate be equal if not more strong and effectual than any  declaration which Mr Talbot can have make beside he must have think it  unnecessary to declare that it shall be money when the legislature have  already in effect enact that it shall so remain and be consider and shall not  be invest in or consider as land but if it be necessary to show any such  consent or intention of Mr Talbot in the eye of the law his consent as well as  that of all other subject be suppose and consider as give to every act of  parliament and therefore Mr Talbot by pass this act consent in the most bind  manner that the pound shall not be lie out in land but remain in money further  Mr Talbot from the time that the mortgage mention in the article be pay off  till his death never keep this pound as a separate fund but suffer it to be  mix and blend with his other personal estate which be a additional proof of  his intention that the same shall be deem money succeed to as such and go to  his personal representative after hear counsel on this appeal it be order and  adjudge that the same shall be dismiss and the order of dismission therein  complain of affirm jour vol p