brown case thomas reresby and ux appellant thomas newland respondent that  February Mews dig ten the trust of a term be for raise a portion for a  daughter in default of issue male Payable at or marriage or as soon after as  the same may convenient be raise the mother die leave no son and only one  daughter hold that this portion can not convenient be raise by sale of the  reversion of the term in the father lifetime decree of Lord Macclesfield c  affirm the general rule that portion may be raise by the sale of reversionary  term in the life of the tenant for life can be get over though on the other  side there be case in which it have be refuse but this must depend upon the  circumstance of the deed and the intent of the party and first if a portion be  direct to be pay at or day of marriage and the term be absolute vest there the  daughter shall not expect during the life of her father but it may be sell in  the father lifetime although a term in remainder and not in possession second  if the trust of the term have be upon a condition precedent as to commence if  the father die without issue male by his wife in trust to raise portion for  daughter there if tile wife be dead without issue male leave a daughter though  the father be live the term have be decree to be sell for in equity the father  be take to be brown er p dead without issue when the wife be dead by who he be  to have issue all that be contingent there have happen by the death of the  wife without issue male and the husband must die and when he die it must be  without issue male by that marriage so that this be in truth a remainder and  depend no long on a contingency thus far the court have go for convenience  that young woman may have their portion when they most want they or else the  father may live so long that the portion may be of little service but three if  the agreement be that the portion shall be pay after his death it be hard to  make it Payable in his lifetime for it will be to no purpose for any one to  make deed if the argument of convenience or inconvenience shall prevail to  overrule they and the case on this head have go too far already and mangle all  estate and therefore the court will never decree portion to be raise in the  father lifetime where the deed can possible bear any other construction see  treat Eq lib c S cite Corbett v Maidwell salk vern grave v Mattison t Jones  Gerrard v Gerrard vern Staniforth v Staniforth vern butler v Duncomb p wms  vern all of which be also report in Eq ab title portion and the present case  of reresby v Newland Mr Fonblanque in his note on the above passage observer  that although the case refer to grave v Mattison Corbett v Maidwell Gerrard v  Gerrard Staniforth v Staniforth have never be direct overrule yet in  subsequent case they have be consider as determination in their principle so  replete with inconvenience that they ought to govern only case precise similar  in all their circumstance and refer to Sandys v Sandys p wms Kebblethwaite v  Cartwright forest and see Eq ab c hall v carter atk lion v chandos d atk smith  v Evans Ambl Conway v Conway bro c r in those case therefore which can be  distinguish from they the court will not decree the portion to be raise in the  lifetime of the father or mother as where all she contingency have not happen  butler v Duncomb p wms reresby v Newland the present case see sidenote post p  or where maintenance be provide out of the rend and profit after the term  limit to raise the portion shall take effect in possession broom v Berkley  post case of this title Stevens v Dethwick atk Goodall v river mosely  churchman v Harvey Ambl and see post Evelyn v Evelyn case of this title where  there be a power in a trust term to raise portion that the father with consent  of the trustee may revoke all the use this suspend the portion and it can be  raise until after the father death p wms viner vol p note to can can and note  can vol p can Eq can ab can can and note can and note by indenture of lease  and release date the that and that of November make previous to the marriage  of the respondent and mary his wife the father and mother of the appellant  mary and by a fine levy in pursuance thereof in consideration of brown the  then intend marriage and of pound the marriageportion of the say mary and for  the settle a jointure upon her and for the advancement of the issue male of  the say marriage and raise competent portion for the issue female in case of  no issue male William Newland and mary his wife the respondent father and  mother together with the respondent do convey to sir John matthews and John  gardener and their heir the manor of chamberlain and Challers in EastReed and  elsewhere in the county of Hertford with their appurtenance and other the  premise therein mention to the use of the say William Newland his heir and  assign until the solemnization of the say marriage and afterward as concern  the manor of chamberlain and Challers and the capital message of Newsills and  the premise thereunto belong and all other the manor message and land in brown  er p the say indenture of release mention except the land purchase of Gilbert  alias goodfellow and the cottage and close call Morriss to the use of the  respondent for life without impeachment of waste and after the determination  of that estate to the use of Richard Nicoll and his heir during the life of  the respondent to preserve contingent remainder and after the respondent death  upon trust that the say mary his intend wife shall during her life receive  thereout pound per and and as touch the freehold and inheritance of the same  premise charge with the say pound per and from and after the death of the  respondent to the use of the first and other son of the respondent on the body  of the say mary beget in tail male successive and for default of such issue  and in case the say mary shall be ensient of a child at the respondent death  then in trust for such posthumous child in case it shall be a son and to the  use and behoof of he and the heir male of his body and for default of such son  and the heir male of his body then to the use of the say Richard Nicoll and  Edward Rudge their executor administrator and assign for year upon the trust  aftermentioned and after the determination of the say term to the use of the  respondent and his heir for ever and as concern the say except land to the use  of the respondent in fee and the say term be declare to be upon trust that the  say trustee shall out of the rend and profit of the premise so limit to they  or by sale demise or mortgage thereof or of a competent part thereof raise and  pay the several sum after mention as well for the maintenance and education as  for the portion or portion of the daughter or daughter of the respondent by  the say mary in case of failure of issue male of their two body videlicet  pound in case of but one daughter for the portion of such daughter and in case  of two daughter and no more pound apiece and in case of more than two daughter  pound to be equal divide among they for their portion and to be pay at their  respective age of year or day of marriage which shall first happen or within  as short a time after as the same shall or may be convenient raise the elder  of the daughter brown to be first pay and for the yearly maintenance of such  daughter or daughter until her or their portion or portion shall or may be  raise as aforesaid if there shall be but one the yearly sum of pound and if  two or more the yearly sum of pound apiece to be pay to such daughter or  daughter at the two most usual feast or term in the year that be to say at the  feast of saint Michael the Archangel and the feast of the bless virgin mary by  equal portion the first payment thereof to begin at such of the say feast as  shall first happen next after the death of the respondent it be the true  intent and meaning of the party that no yearly maintenance shall be due to or  raise for any such daughter or daughter during the life of the respondent  provide always and it be declare and agree by and between the say party that  after the say several sum or portion shall be raise and receive or if the  respondent shall die without any daughter by the say mary live at his decease  and she shall not be then ensient of a daughter which shall afterward be bear  and live or if all such daughter shall die before such age of or day of  marriage or if such person or person to who the immediate reversion or  remainder expectant upon the say term of year for the time be shall appertain  shall well and true pay or cause to be pay or sufficient secure or cause to be  secure the several and respective sum and sum of money before mention to be  raise for the portion or portion of every such daughter or daughter to be  beget as aforesaid to be pay to every of they within three month account day  to the month after their respective age or age of year or day of marriage  whichsoever shall first happen and also for heir and their maintenance and  education in the meantime as aforesaid or if all the daughter of the  respondent on the body of the say mary to be beget shall be by he prefer in  marriage with such portion as aforesaid in his lifetime that then the say  Richard Nicol and Edward Rudge and their assign shall dispose of the residue  of the rend and profit of the premise during the residue of the say term of  year to they limit as aforesaid and shall stand and be possess and interest  for and during the residue of the say term upon trust and for the benefit of  the person or person to who the immediate remainder or reversion of the  premise expectant upon the say term shall for the time be appertain and to go  with and attend the inheritance thereof accord to the limitation before  contain and shall assign surrender brown er p and yield up their estate and  interest accord upon reasonable request in that behalf yet nevertheless it be  declare by all the say party that in case all the issue male of the body of  the respondent to be beget on the body of the say mary shall fail before  either of the say son beget between they shall be prefer in marriage and  before such time as all the daughter of the respondent on the body of the say  mary shall be prefer in marriage that then the daughter and daughter so not  prefer in marriage shall have such portion or brown portion as be before  express and in case any sum shall be raise or receive for portion and all such  daughter shall die before the same ought to be pay as aforesaid that all the  money so raise and receive shall be pay to the person or person to who the  immediate reversion or remainder expectant upon the say term of year shall  appertain then follow a proviso for the respondent to lease for year at the  best improve rend subject to the say annuity of pound and another proviso that  it shall be lawful for the respondent and the say mary his intend wife and for  the respondent alone in case he shall survive her by and with the consent of  the say sir John matthews and John gardener or their heir or the heir of the  survivor of they and together with they or their heir or the heir or the  survivor of they by any deed or deed write or write seal and subscribe in the  presence of two or more credible witness to alter revoke frustrate determine  extinguish and make void all and every or any of the use and use aforesaid and  to limit or appoint any other use or use as the respondent and the say mary  and the respondent alone in case he survive her by and with the consent of the  say sir John matthews and John gardener or their heir or the heir of the  survivor of they shall think meet and shall by such deed or deed write or  write in such presence as aforesaid limit or appoint the marriage soon after  execute of the say indenture take effect and the say mary in some time after  die leave issue by the respondent one son name Thomas and one daughter the  appellant mary which son on the that of march die under age and without issue  the appellant mary have before her brother death attain her age of year and  thereby as be whole unpreferred and the only daughter and survive issue of her  say father and mother she become entitle to the sum of pound so limit and  secure to be raise and pay for the portion of such only daughter and the  appellant Thomas reresby have marry the appellant mary become entitle in her  right to the say portion together with interest for the same from the death of  the say Thomas the appellant mary say brother but the respondent have marry a  second wife by who he have several child insist that the appellant mary say  portion of pound be not Payable unless she survive he and therefore the  appellant in Michaelmas term exhibit their bill in the court of chancery  against the respondent and the representative of the trustee pray that the  appellant mary say portion of pound with interest for the same from the death  of the say Thomas Newland her brother may be forthwith raise by sale or  mortgage of the say term of year and pay to they appellant and that the  respondent and the trustee may be restrain from revoke the use of the say  settlement the respondent by his answer to this bill admit the say brown  indenture of settlement that the say marriage take effect that his say late  wife die about year ago that he have issue by her six son who all die before  the age of unmarried that he have no daughter by her except the appellant mary  that the appellant Marys say brother Thomas Newland one of the say six son  survive his mother and also all the other issue male of the say marriage and  die about the that of march under age and unmarried and that the appellant  mary have before his death attain her age of year and be not prefer with any  portion but he deny that the appellant mary thereby or otherwise become  entitle to the say pound portion to be raise forthwith or that the same ought  to be raise and pay with interest from the death of the say Thomas Newland her  brother and say he be advice that by the tenor and construction of the say  deed the say pound do not become due to the appellant mary upon her say  brother death nor can be due to her or ought to be raise until after his the  respondent death in case she shall be then live and that in case she shall be  then dead the same will not brown er p be raisable nor ought to be raise nor  will the estate be in such case Chargeable therewith he also deny that he ever  threaten to procure the consent of the trustee to revoke or alter the use of  the say settlement on the that of February the cause be hear before the Lord  chancellor Macclesfield when his lordship upon the construction of the  settlement declare he see no cause to relieve the appellant as to the raise of  the say pound in the lifetime of the respondent and therefore order that the  bill so far as concern that demand shall stand dismiss from this decree the  appellant appeal insist t Lutwyche S Cooper that accord to the tenor and true  meaning of the settlement the right to the appellant mary portion actual vest  in her at the time of her brother death she have then attain her age of and be  whole unprovide for at which time or marriage or in as short time after as the  same can or may be convenient raise the say portion be on failure of issue  male express to be pay that by the express word also of the deed it be declare  that in case all the issue male of the body of the respondent to be beget on  the body of the say mary shall fail before any or either of they shall be  prefer in marriage and before all their daughter shall be prefer in marriage  that then such unpreferred daughter or daughter shall have such portion and  portion as aforesaid and there be no negative put upon the payment of the  portion as there be on the maintenance during the respondent life demonstrate  it to be the intent of the party that the portion shall be pay at the time  before appoint and not that the daughter shall wait for the payment until  their father death or that the right to the portion shall depend on the  contingency of the appellant mary be live at her father death it be therefore  conceive that the appellant brown mary immediate upon the death of her brother  Thomas become entitle to the say pound portion and that the same ought to have  be forthwith raise and pay accord but if this portion be not raiseable till  after the respondent death yet even in that case the bill ought not to have be  dismiss but shall have be retain until it shall be know whether the  contingency happen on the other side it be say p York c Wearg that from the  whole scope and tenor of the settlement it appear not to have be the intention  of the party that the daughter shall be enable to compel the raise of their  portion during their father lifetime for the word be very express that no  maintenance be to be pay during his lifetime nor any portion but to such  daughter as shall be live at his death that all possible care be take in this  settlement to oblige the respondent child as well son as daughter to their  duty and obedience to their father and for this reason it be not only declare  that the daughter shall have no maintenance during their father life nor any  portion unless live at his death but there be also a power leave in the father  with the consent of the trustee to revoke all the use of the settlement and  therefore to give the appellant mary her portion in her father lifetime will  be to make a new settlement and to render his power of revocation and the  provident care he have take to keep his child in their duty fruitless and  ineffectual that if settlement make with great consideration and prudence be  break into in such instance it will tend to the ruin of family not only by  make daughter independent of their father and thereby more liable to become a  prey to design person but also by bring heavy load upon estate by the sale or  mortgage of reversionary term which be never intend nor can be do but at a  great disadvantage that no right to this portion be yet vest for the meaning  of the clause so much rely on by the appellant be only to ascertain that in  case of such failure of son a unpreferred daughter shall have the like sum for  her portion as if there have be no son bear of the marriage but  notwithstanding that her portion will still depend upon and be subject to the  same contingency videlicet her be live at the respondent death and his not  revoke the use of the settlement the declaration of the trust of the term be  entire and to be construe and take all together it be therefore hope that as  the appellant have commence their suit when they have no right accrue nor any  demand in equity the dismission of their bill be just and ought to be affirm  accord after hear counsel on this appeal it be order and adjudge that the same  shall be dismiss and that so much of the decree as be therein complain of  shall be affirm jour vol p brown er p