cage Tompkins versus Tompkins pale yellow Chan pale yellow Eq Rep S c a devise  pound apiece to his three daughter at their age of or marriage to be pay out  of his stock and devise the rend of his real estate to his wife for life in  lieu of dower and for the maintenance of his child and towards make up their  portion and after his debt and legacy pay devise the land to his son who  together with his wife he make executor the stock be but of pound value the  wife be dead and the two old daughter have have their portion pay they hold  that the land be liable in the hand of the son to the young daughter portion  piece to the plaintiff his the plaintiff father by his will devise pound  adaughter and to two other daughter to be pay at their respective age of year  or day of marriage which shall first happen the say portion to be raise out of  the say testator stock and then devise the rend of his real estate to his wife  for her life in lieu and satisfaction of her dower and for the maintenance and  education of his child and also for and towards the raise and make up the say  portion to his say daughter and then go on and after my debt and legacy pay  and satisfy I give and devise all my land tenement and hereditament to my son  one of the defendant and his heir make his wife and the defendant his son  executor and die leave in stock not above the value of pound the wife enter  and the two other daughter marry have their portion pay they precedent in  chancery this bill be now bring by the three daughter who have attain her age  of year and be unmarried to have her portion the wife have be dead some time  and the defendant the son and survive executor insist that his land ought not  to be charge with the raise of this portion in regard it be express direct to  be raise out of the stock and rend of the estate during the wife life and that  if the wife have exhaust or consume the surplus of the rend which shall have  raise the plaintiff portion she ought to fall on her asset or however that the  plaintiff can not lie the load on his estate if the wife leave no asset  precedent in chancery er p but the court be of opinion that in this case the  defendant estate be Chargeable to make up the portion to the plaintiff for the  several gradation in his will show that the portion be in all event to be make  good to his daughter and therefore he first charge they on his stock and after  devise they to be make out of the surplus of his rend during his wife life and  last give the land to his son subject thereto by devise they to he after have  debt and legacy pay which in a will amount to a charge on his land for the  payment thereof since the son by the will be not to have the land still after  the debt and legacy be pay brown Rep and therefore it be decree that a account  shall be take of the stock and what the proportion thereof after a  proportionable deduction for the other two legacy fall short shall be make up  out of the like proportionable surplus of the rend during the wife life and  what they f ell short to be supply out of the defendant estate but it be not  determine with any clearness whether if the proportionable part of the stock  and of the surplus of the rend which be appoint the fund in the first place  for the payment of these legacy be waste by the wife whether the loss  precedent in chancery thereof as to the plaintiff legacy remain unpay shall  fall on the plaintiff herself or if she shall by reason of such waste load the  real estate so much the heavy to make good her legacy though my Lord  chancellor seem to incline that her legacy must as this case be be make good  to her at all event out of the real estate in case the other fund provide for  it prove deficient or be waste at least so much thereof as by any  misapplication during her minority be lose and go of the other fund though he  say from the time of her attain her full age it may perhaps deserve another  consideration another point in this case be that the defendant the son have  mortgage this estate to some other of the defendant who have full notice of  the will as be prove in the cause and whether they shall be affect with this  legacy be the question though there be little say in defence of this point but  that the defendant be only executor of the mortgagee and know nothing of the  transaction in take the mortgage Mr Vernon argue that in case there can be any  doubt make of it as he think there can not yet that the defendant the son who  receive the money will be Chargeable therewith and that the plaintiff may in  the nature of a Cestuique trust prosecute he as a trustee for recompense  thereout till her legacy pay and cite the case of cherry and Ferrer in this  court to have be decree accord but my Lord chancellor seem to turn this reason  upon he that there the wife for the proportionable part of the surplus be but  in the nature of a trustee and the plaintiff must expect her recompense for  what she have waste out of her asset and not load the son therewith but it be  decree to a account as before be mention