case Frances west and mary west by their father John west Esq plaintiff and  Frances ERISEY mary west and thomas barrable a infant by his guardian  defendant in scacc explain leg v Goldwise Cas t Talb discuss Robert v Kingsley  Ves sen distinguish partyn v Robert Amb Cordwell v mackrill Amb discuss Jones  v Morgan bro c c bold v Hutchinson de g m g Eastwood v lockwood lr Eq refer to  in re Martin l I Ch article on marriage to settle land on husband and wife for  their life remainder to the heir male of the body of the husband by the wife  remainder to the heir male comens er p of the body of the husband by any other  wife remainder to the heir female of the body of the husband by this wife a  settlement be make before the marriage and say to be pursuant to the article  whereby the land be limit to the husband for life sans waste and with power of  make lease remainder to the first c son of the marriage in tail male remainder  to the first c son of any other marriage in tail male remainder to the heir of  the body of the husband there be issue two daughter and the husband suffer a  recover and devise the premise to his sister the daughter may in equity compel  the devisee to convey the premise to they p wms Eq Abr pl bro p c S c a bill  be exhibit in September by which it be allege that on a treaty of marriage  between Richard Erisey and Frances the daughter of sir Peter killigrew it be  agree by article date the d of December between James Erisey uncle of the say  Richard and the say Richard Erisey of the one part and sir Peter killigrew of  the other part that in consideration of the say marriage and marriage portion  James Erisey will settle land in the county of Cornwall and Devon to the use  of Richard Erisey for life without impeachment of waste and to the heir male  of his body on the say Frances to be beget and for want of such issue to the  heir male of his body by any other woman and for want of such issue to the  heir female of his body by Frances and after to his heir female by any other  wife and for want of such issue to Charles Vivian c with diverse remainder  over and by the same article the land in Devon be to be settle to comens James  Erisey for life without impeachment of waste remainder in part to mary his  wife for life remainder of the whole to Richard Erisey as aforementioned and  by the same article it be agree that James Erisey may nominate counsel for  settle the say estate and jointure and that sir Peter killigrew may advice  likewise with his counsel so that the same may be effectual in law by a  indenture date the d and that of march James between James Erisey of the first  part Hugh Boscowen and another trustee of the second and Richard Erisey of the  three part James Erisey in consideration of love to mary his wife and for  confirm and set her jointure and for love to Richard Erisey and convey and  settle the land and tenement afternamed in his name and blood and in pursuance  and performance of the say article convey the land and tenement in the county  of Devon to the use of himself for life without impeachment of waste then as  to the barton of Erisey c to the use of mary his wife for her life for her  jointure and in satisfaction of dower and as to the say barton c after her  decease and as to the residue of the premise from and after his own decease to  the use of the say Richard Erisey for life without impeachment of waste and  from and after his decease to the use of his first and other son to be beget  on the body of Frances his wife in tail male and for want of such issue to the  use of his first and other son by any other wife in tail male and for want of  such issue to the use of himself and the heir of his body on the body of the  say Frances to be beget and in default of such issue to the use of the heir of  his body and for want of such issue to the use of Charles Vivian c and give  power to himself and Richard Erisey to make lease c and by a indenture of  lease and release date the that and that of march James which be the ensue day  James Erisey settle the land in Cornwall to the use of Richard Erisey in  possession for life without impeachment of waste with such remainder as before  and give he power to make a jointure for another wife and to make lease c and  James Erisey covenant for he and comens his heir that the trustee shall be  seize to the same use accord to the intent of such lease and estate and after  the determination of such lease and estate to the use of such person and for  such estate and in such manner as the same land be settle before in the deed  of this settlement produce several line be erase and memorandum make of it in  April the marriage take effect between Richard Erisey and Frances killigrew by  who he have issue mary only afterward marry to John west father of the  plaintiff for the plaintiff be daughter and heir of John west and mary his  wife the daughter and heir of Richard Erisey and Frances his wife and in two  year after the marriage Frances the wife of Richard Erisey absent herself from  her husband comens er p after the death of sir Peter killigrew and James  Erisey by indenture of the that and that of January W mary late wife of James  Erisey convey to Richard Erisey and his heir during his life the premise  settle to her for her jointure in consideration of a annuity for her life  pursuant to article between they date the that of January and afterward  Richard Erisey have the freehold of all the estate in he do by indenture of  lease and release bear date the that and that of April W grant and convey the  whole estate to two person to make they tenant to the praecipe in order for a  fine and common recovery and in easter term W a fine be levy and a common  recovery suffer accord and by that deed the use be declare to Richard Erisey  in fee after this recovery Richard Erisey alienate in fee several parcel of  the estate and by his will date the that of December devise the residue of the  estate to the defendant mary Erisey in fee James Erisey who make this  settlement have two brother Richard and William James die without issue  Richard have no comens issue male but leave a daughter mary then alive and  William have issue Richard Erisey upon who the settlement be make and now the  plaintiff Frances and mary infant exhibit their bill and by it pray that such  part of the estate as be not sell by Richard Erisey their grandfather may be  settle upon they accord to the intent of the article and that the defendant as  executrix and devisee of Richard Erisey shall make they satisfaction out of  her personal estate for the value of the estate sell by he in his lifetime the  defendant plead the marriage settlement the fine and common recovery the deed  which lead the use of they and the will of Richard Erisey in bar of the relief  pray by the bill but the plea be order to remain for a answer with liberty to  except to it and then the cause be hear upon the merit and it be insist for  the plaintiff that the intent of the article be that provision shall be make  for the issue male and female of this marriage that no provision be make for  issue female only by the limitation in the article to heir female of the body  of Richard Erisey and therefore when those article be put in execution the  settlement ought to have be make in such a manner that the issue female may  have the benefit of the provision intend for they and then the estate ought  not to have be limit to the heir female of Richard Erisey by which it be in  his power to bar his daughter by fine and recovery but shall have be to all  and every the daughter of the body of the say Richard Erisey on the body of  Frances his wife to be beget and then it will not have be in the power of  Richard Erisey to bar mary his daughter to who the plaintiff be heir that the  settlement be intend in pursuance and performance of the article and then when  the intent be not well pursue it ought to be rectify in equity and the  plaintiff who be entitle by the proper limitation may enforce the execution of  the article and it be the constant experience in court of equity that if the  settlement in pursuance of comens marriage article be contrary or defective  light shall be reform by the court Trevor p wms Mod Mod Eq Abr pl Eq Abr pl  bro p c infra p a and Trevor in chancery June and afterward affirm in the  house of peer Feb be a case express to this purpose for there by article in  make by sir John Trevor late master of the roll upon his marriage it be  covenant to make a settlement of land to the value of per and within two year  to the use of himself for his life without impeachment of waste and afterward  to the use of his wife for her life and then to the use of his first second  and other son by such wife in tail c and in case no settlement be make in two  year after the marriage the person seize shall stand seize to the same use  after the two year he suffer a recovery and dispose of the estate by will but  all be set aside and the construction make be that the article shall have be  execute so as not to have enable the master of the roll to defeat the child of  the marriage and although it be insist that by the covenant to stand seize the  estate be now execute to the limitation as express in the article it be hold  that ought to make no alteration but Pengelly chief baron hale carter and  comens baron hold that it be dangerous to set aside settlement make upon great  deliberation for though accord to the case of Trevor and Trevor if article be  make to settle a estate to a man and comens er p the heir male of his body a  settlement in pursuance of such article will be decree in equity to be make in  common form to he for life and to trustee to preserve the contingent use and  then to the first and other son successive in tail yet the rule do not bold  with respect to female who be less regard because the name of the family will  not probable be preserve by they and by these article the daughter of this  marriage be postpone to the son of a subsequent marriage so the bill be  dismiss without cost comens but upon a appeal to the house of lord the decree  of dismission be reverse in February principal because the settlement be  express mention to be make in pursuance and performance of the article show  that the party do not intend to vary the agreement and the lord hold that the  expression of heir female in marriage article shall have the same construction  in favour of daughter as heir male shall in favour of son especial as no other  provision be make by the settlement for daughtersThe same construction be make  in favour of female in the case of heart v Middlehurst atk and in the case of  Burton v Hastings pale yellow Rep vide p wms p in note in the case of Powell v  price p wms where a different determination be give to that in the present  case there be a diversity in the circumstance of the two which the judge  notice in the present case there be no other provision make for the daughter  in that of Powell v price portion be secure add to this the article in the two  case be different word p wms and the lord decree a conveyance to trustee to  the use of the appellant and the heir female of their body as tenant in common  with cross remainder to they in tail female and the appellant be to have a  account of the profit and of the purchase money for the premise sell and  interest the principal money to be lie out in land to the same use but the  interest to be pay to the use of the appellant all write to be bring into the  court of exchequer and possession deliver to the appellant comens de term  sanct hill geo I