atkins case gore versus nash and other October S c cite Ves the article make  previous to the marriage of Mr fag decree to be carry into execution for the  benefit of the plaintiff his old sister this cause come before the court on a  bill bring by sir Charles gore and his lady one of the daughter of sir Robert  fag the elder to have a specific performance of article enter into on the  marriage of Robert fag the young and to have the land specify in the article  settle to the use of lady gore in tail sir Robert fag the father have one son  and four daughter namely the plaintiff and the three defendant he have a  estate amount to pound per annum and on the marriage of mrs son October enter  into article between he and his son by which there be a agreement to settle  the great part of the estate eight hundred pound a year except by these  article the father and son covenant for themselves their heir executor c to  settle these land to the follow use as to one part of the value of pound per  annum to Mr Robert fag for life and after the determination of that estate to  raise a jointure of pound a year rentcharge for the wife and then to trustee  to preserve contingent remainder to son in tail male afterward to son by  another marriage and there be no other limitation then the article take up the  consideration of another part of the estate and the use of this be limit to  sir Robert fag the father for life remainder to Robert fag the son for life  remainder to his issue c the same person as in the first mention land with a  charge by way of additional portion of pound for sir Robert Faggs daughter and  after several limitation then come the limitation in question to the plaintiff  lady gore and her heir male unless sir Robert fag shall appoint other use  under his hand and seal then a limitation to the other daughter in tail then  to Mr fag of Grimsby then to sir Robert right heir sir Robert Fag the father  die in the son survive after the father death the son direct a draft to be  prepare to carry the article into execution but die before it be finish  without issue the legal estate in some of the land have descend on the four  sister in foe as heir both of the father and brother a bill have be bring by  lady gore to have the article carry into execution and to have the entail of  the estate so limit to her as aforesaid settle accord atkins Lord chancellor I  give order on the that of November that the master shall inquire what be the  value of the estate comprise in the article and what estate be descend the  master have make his report and the cause stand for further direction the  estate be of three kind first land comprise in the marriage article in which  the use be carry no further than before mention in value pound per annum  second the estate in the article which be claim as limit to the plaintiff in  tail the master have divide into two kind one of which it be state he can  determine whether it be limit or not and the other to be clear limit amount to  pound S d per annum three land which be unquestionable descend both in law and  equity amount to pound S per and upon this case the question be whether the  plaintiff lady gore be under these article entitle in a court of equity to  have they carry specifical into execution now the power of the court to carry  article into execution have not be doubt on either side for the specific  execution of article be the most adequate justice in general shall not be  leave to a action at law but notwithstanding this the defendant counsel have  take three objection on which they have principal rely first that the rule  have several exception and that it be discretionary in the court whether they  will decree a specific execution upon the circumstance of the case second that  the plaintiff be plain a volunteer and not within the valuable consideration  of these article three that great hardship will follow from such a decree for  that the defendant will in a manner be disinherit by it atkins er p atkins as  to the first it must be admit but then it ought to be understand in this  manner that it be discretionary on certain ground and not arbitrary but govern  by rule of equity the second objection and what have be principal rely upon be  that the marriage between Mr Robert fag and mrs Sarah ware be the sole object  and that the present plaintiff be only a daughter of sir Robert Faggs and not  the old and beside no party contract in the marriage article unless  presumption be take in to help it out this point have be clear and full argue  and the case of Jenkins v Keymiss report in lev and in Chan Cas have be moot  chief on both side and it have be insist that the plaintiff be not such a  person as be entitle to have the article carry into execution or who can  prevail against a subsequent purchaser which be the case of Jenkins v Keymiss  the strict measure which govern the court in a question between person who  come to carry article into execution and purchaser be not the rule of this  court for between family the court have consider whether it will be attend  with hardship or not or whether a superior or inferior equity arise on the  part of the person who come for a specific performance and this be the ground  Lord Cowper go upon in the case of finch v Lord Winchelsea p wms Lord Harcourt  have decree the agreement between the old countess of Winchelsea and the late  earl and Lord harcourt decree be affirm in the house of lord the earl of  Winchelsea after the agreement confess a judgement for just debt when Lord cow  t er have the seal a second time another bill be bring by judgement creditor  to be satisfy out of that estate he decree for the judgement creditor for  though it be a sufficient agreement to bind the several branch of the family  yet not adequate to bind creditor I mention this to show that the distinction  have be already take and that it be one consideration how far the court will  support agreement of this kind against relation in a family and against  purchaser and creditor the follow distinction seem to be the result of the  several determination on this subject in case of actual settlement before  marriage the rule be that the consideration of the marriage will not only  support the limitation to the immediate object of the marriage such as the  husband and wife and their issue but also all subsequent remainder which be  not direct within the contract or consideration of such marriage and that even  against purchaser or creditor Jenkins v Keymish lev Charles can Charles Rep  Hammerton v Mitton will Newstead v Searle atk Edward v countess of Warwick p W  ithel v bean Ves I mention the above rule as apply to actual settlement but in  the case of article before marriage to settle land or to invest money in the  purchase of land whereby the person in remainder be oblige to seek the  assistance of a court of equity there it seem clear from the word of Lord  Hardwicke in the above case of coring v Nash and those of Lord king in Vernon  v Vernon p W that the rule will not apply as against purchaser or creditor see  also finch v earl of Winchelsea p W Warwick v Warwick atk however even in the  case of article the rule be still applicable where the contest lie between  relation in the same family or mere volunteer Kettleby v atwood vern lancy v  Fairchild vern Vernon v Vernon p W gore v Nash above Stephens v trueman Ves  heart v Middlehurst atk in the case of Watts versus Papal bull p wms before  Lord keeper wright his reason be too large owe to his atkins be then new in  the court and pursue the maxim of law too far as to the consideration of blood  to raise a use for that will carry it to the remote blood that can raise a use  in law and which this court do not regard there the court make a decree for  supply a conveyance in favour of a half brother against a heir at law there be  a case before I of newstead versus Searle march t atkins I only mention it as  the bar take notice of it but not as any authority on this head of  consideration and how far the court have support agreement where the person  who come for a specific execution be not within the consideration of the  article I will mention a case for the sake of the reason only holt versus holt  p wms in the present case it be unnecessary to take up time in cite particular  case because I apprehend all the case be authority for what I shall now decree  all the decree for specific performance of marriage article on limitation for  young child be authority in favour of the plaintiff and where such article  have be decree at all they have be carry into execution even as to collateral  and not carry into execution in part only suppose in the present case a bill  have be bring by Mr Robert fag the son or the widow must not this particular  limitation have be decree to the plaintiff at the same time I shall in make my  decree rely on these ground first that the plaintiff be clear entitle to a  specific performance of part in these article second that the trustee will be  clear entitle to recover the whole value of the estate at law out of the real  asset three that this limitation be part of the provision make by a father for  a daughter as to the first I go upon two reason that the plaintiff be entitle  to be relieve against lady Faggs demand of dower and can compel her to be bind  by her agreement as to her jointure but if any cavil be to be raise on the  nature of this decree whether it shall be by injunction to restrain her atkins  proceed at law yet without controversy she be clear entitle to a decree for  raise of pound as a atkins er p additional portion for her out of the pound  charge upon the land comprise in the marriage article now there be no instance  of decree a partial performance of article the court must decree all or none  and where some part have appear very unreasonable the court have say we will  not do that and therefore as we must decree all or none the bill have be  dismiss instance have be mention of fraud or mistake in marriage agreement but  court will relieve there by strike out the mistake or set aside the fraud and  therefore in those case they go altogether upon another ground and relieve  against the settlement itself No body can tell what it be that party who be  dead have lie the great weight upon in come to agreement and therefore it will  be attend with bad consequence if agreement be to be split and one part to be  decree but not another in limitation of article in tale where they make the  old daughter in the nature of a old son though she be but part of a heir yet  the court will carry it into execution I mention this only as exemplify what I  have say with regard to the confusion it will make if the court decree these  agreement to be carry into execution in part only a objection be make that sir  Robert fag may have execute the power of revocation as well upon the foot of  these article as if they have be carry into strict settlement but he do not  execute that power which be a full answer the second special ground be that  the trustee will be clear entitle to the whole value of the land out of the  real asset if a action have be bring against the son by the trustee they must  have recover the whole value against he who have no power of revocation the  jury can not take it in consideration in damage this bring it near the case of  Vernon versus Vernon p W S c before Lord chancellor king for Mr Vernon be as  much a volunteer and be a more remote relation than the plaintiff atkins in  this case if the trustee have recover in a action at law out of the real asset  of the brother the defendant may come into this court for the specific land or  to have the asset lie out in the purchase of land now this will be such a  circuity as ought not to be allow in equity as it will be more adequate  justice to decree it immediate one objection make on the part of the defendant  be that here be a remainder in tail limit to Mr Robert fag the son before this  limitation to the plaintiff and that he may have bar the plaintiff by recovery  there be no doubt he may but as he have not do it it be no objection and be  the very case in Vernon and Vernon and the same argument make use of there  vide etian Ramsden v Hylton Ves I and as in this case he have do no act nay  strong have rather do a act which import a intention to carry the article into  it answer this execution by order a draft to be prepare for that purpose  objection the three ground be that this be part of a provision for young child  which be always favour here and carry into execution that they be consider as  purchaser by reason of the natural obligation of parent to provide for their  child and this court will supply for their benefit the surrender of copyhold  estate vide room v room atk pike v white bro Charles Rep c and one objection  have be make which deserve a answer that this be not within the common  provision for a daughter after several limitation as to that I be of opinion  that the father be a judge of the quantum of a provision and likewise of the  time when it shall take place limitation to they have be to arise frequent on  failure of issue male of a old son or son and yet in this court have be  consider as a provision and the time make no difference suppose the father  seize of copyhold land shall limit they to a first son in tail and a second  son and a three four and five son and there be no surrender and the second son  atkins bring a bill who be to take in possession to have it supply will not  the court decree it for the three four and five son as well as the second  atkins er p consider it as intend for a provision and in the same order the  father have leave it a general objection have be make of hardship as to the  other three sister and I own I think it a hard case and for this reason I send  it to a master to state the value and there be clear a estate of sixteen  hundred and twentyfive pound a year descend but a encumbrance of pound upon it  however as it be a old estate it will sell for pound and doubtful beside on  the master report whether another estate may not descend but if it shall not  they be ample provide for therefore it stand distinguish from the case of  Parry versus Hugh in in the court of exchequer for there it must have be carry  into execution for a total stranger the court have always decree the provision  make by a parent for a child to be as extensive as the parent intend it where  it do not introduce a hardship or leave the other child in distress for a  father may have a good reason to prefer one child to another whether he have  in this case I shall not inquire his lordship decree the article in to be  carry into execution for the benefit of the plaintiff Reg lib a fol