case Coomes versus elling and his wife march see Bruin v Knott sim a freeman  of London ten year before his death purchase a leasehold estate for the term  of forty year in the joint name of himself and his wife this be a fraud on the  custom and the leasehold estate be direct to be sell and apply in the like  manner with the rest of the freeman estate the plaintiff son of Joshua Coomes  a ancient freeman of London bring his bill for a account and satisfaction of  the plaintiff share of his father personal estate partly in his own right and  partly in his sister mary as orphan of the city of London mary die a infant  and unmarried and the plaintiff claim her share as her representative Joshua  Coomes ten year before his death purchase of the vicar of saint Martin a  leasehold estate for the term of forty year in the joint name of himself and  his wife atkins er p and be also possess of other personal estate make his  will and thereby give the plaintiff his orphanage part and likewise to his  daughter mary a six of his customary estate and direct it to remain in her  mother hand now the wife of defendant Elling till her age of twentyone or  marriage and then devise all the rest and residue of his estate to his wife  desire her to take the trouble and expense of maintain educate and provide for  his daughter mary till such time as she attain the age of twentyone or  marriage and appoint his wife executrix Mr attorney general counsel for the  plaintiff atkins the defendant seem to make a question by their answer whether  the orphanage part of the plaintiff sister she die intestate unmarried and  under survive to the plaintiff her brother or be to be divide between he and  her mother but as this have be settle by many resolution and particular in the  case of Harvey versus Desbouverie the that of August Cas in Lord Talbot time  that the orphanage part and portion of a orphan of London die in his or her  minority under if such orphan daughter so decease be unmarried at the time of  his or her decease by this custom of the city ought to come among his or her  brother or sister by the father survive as well advance as not advance in the  life of the father though the father of such orphan by his last will shall  otherwise dispose of the same or die without a will be so clear he will not  trouble the court with argue it he also insist for the plaintiff  notwithstanding there be a state account between he and his mother in yet in  regard he be entitle to his sister orphanage share and who be a infant have  never in her lifetime settle any account he be not bind by the account allow  and sign by he so far as it relate to the sister because claim under her right  he have the same liberty to open the account as she will have have if she have  be live for there be no ground to say it be a state account as to her and if  on open it with regard to the sister it shall come out there be more due to  her on account of her share of her father estate that will show there be a  error in that account throughout and then the plaintiff be entitle to be  relieve notwithstanding his release he insist in the three place that the  latter clause in the will desire the mother to take the trouble and expense of  maintain educate and provide for his daughter till c show the testator  intention that she shall maintain her out of her own pocket especial as it  immediate follow the devise to the mother of the whole testamentary part it be  implicit intend that she be thereout to maintain her and therefore the mother  be not entitle to any allowance for mary maintenance clothes board and  education he insist in the last place that the leasehold estate in saint  Martin lane ought to be deem a part of the testator estate and do not go to  his wife by survivorship and that it be equal a fraud upon the custom as if he  have take it to himself for life remainder to the wife for life for as it be a  jointtenancy she be as much entitle to the whole by survivorship as if it have  be limit to her in remainder only atkins Mr Noel and Mr clarke for the  defendant insist this be a new point and that there be no instance of a case  of this kind before upon the custom of London that this be a purchase make by  the testator when in health and ten year beforehis death and that his widow be  make a joint purchaser with he it be a interest absolute vest in her and such  a interest that he can not have dispose of unless he have survive her and  therefore she do not claim it as a gift now from her husband but by operation  of law the law accrescend Lord chancellor I be of opinion the account settle  between the plaintiff who be thirty year of age at that time and the defendant  his mother ought to stand and not be unravel but say he will give liberty for  any of the party to surcharge and falsify and direct accord as to the point of  maintenance I think it be not the intention of the testator it shall come out  of the pocket of the mother vide butler v butler ante atk to remain in her  hand till the daughter age of twentyone or marriage mean as the mother be  leave executrix that she shall not pay it till then and if his intention be  that she shall keep the daughter customary part and not pay it till the  contingency happen then he can not have it in his view that she shall pay  interest for it in the mean time atkins er p this clause at her expense c be  say to be a qualification of the legacy to herself and that he intend  therefore the mother shall maintain her person can speak the whole at once the  testator certain mean maintenance in the first instance shall come out of the  daughter orphanage part and if that be not sufficient then I apprehend he do  intend the rest of her maintenance shall have come out of the residue of the  legatory part his lordship therefore direct the expense of the sister  maintenance from the time of her father death to her own to be pay out of the  produce only of her capital of the orphanage part for the capital itself he  say can not be break into his lordship ask Mr recorder Stracey how the custom  of London be with regard to the funeral expense of a child of a freeman who  die after the father whether they ought to be pay out of the legatory part of  the testator estate or the child orphanage share atkins Mr recorder say he do  not know that it have ever be settle by the custom of London out of which fund  it shall be pay Lord chancellor say I think it very just and reasonable the  child orphanage share shall pay it and direct accord the mother shall be allow  what she have expend in her daughter funeral out of her capital with regard to  the leasehold estate buy by the testator of the vicar of saint marlin I be of  opinion there can be a clear case of a fraud on the custom there be several  case of fraud on the custom of London though not in specie with the present  case vide smith v fellow atk it have be hold if a freeman dispose of his  property in such a manner as not to take place till after his death it be a  fraud on the custom here the freeman possess of a personal estate lie out some  of it in a purchase of a leasehold estate for the joint life of himself and  his wife the consequence be the husband may have dispose of the whole it have  be say if the wife survive he the moment he die this be to be take out of his  personal estate for that it do not come to her by the gift of the husband but  by operation of law the law accrescend and yet it must be allow that in his  lifetime he have equal power to dispose of it as any other part of his  personal estate for the wife can during the coverture acquire any property  distinct from the husband suppose Joshua Coomes have take the leasehold estate  for himself and one of his child it have be a gift as to a moiety only and as  to the other moiety it will be a advancement to the child and must be bring  into hotchpot suppose he have take it entire in the name of his wife then it  will have be the estate of the husband and he may have dispose of it in his  lifetime equal as how indeed if the gift to the wife have be make by the  husband to trustee for the separate use of the wife in possession this atkins  may have b even of a different consideration and I shall be incline to think  such gift be good vide tailor v Jones atk but I will not give a absolute  opinion upon the whole I think the leasehold be ten so purchase must be  consider as part of Joshua Coomess personal estate Lord Hardwicke direct it to  be sell before the master and the money arise from the sale thereof to be  apply in like manner with the rest of the testator personal estate he direct  the widow three part of the customary estate and also the residue of the  testamentary part after debt and legacy to be retain by the defendant Elling  and his wife and as to the remainder of the orphanage part he declare the  plaintiff to be entitle to one three in his own right and the other three in  the right of his sister and direct it to be pay to he accord Reg lib a fol  atkins er p