case Andrew wither and other appellant William king respondent that march Mews  dig xiv S c king v wither can t Talb I r a devise land to his son b but if he  shall die without issue male of his body then live or which may be afterward  bear that then his daughter m shall receive at her age of or day of marriage  which shall first happen pound over and above pound before give her and in  case the contingency of his say son die without issue male shall not happen  before his daughter say age or day of marriage that then she shall receive the  say pound whenever such contingency may happen and the testator charge this  legacy or portion on his real estate m have attain marry and die in the  lifetime of her brother b who afterward die without issue male hold that the  husband and administrator of m be entitle to this legacy and that it be a  subsist charge on the testator real estate win forester gilbert Rep precedent  in Chan viner vol p can vol p can Eq ab can Eq ab can fearne contingent  remainder p Charles wither the father have issue by Dorothy his wife one son  name Charles and one daughter Henrietta maria the wife of the respondent dr  king and be seize of a real estate of pound per and and possess of a  considerable personal estate and intend to provide a portion for his daughter  and likewise to make a additional provision for her in case his son shall die  without issue male live at his death do by his will date the d of June inter  alian give and bequeathe unto brown er p his daughter Henrietta maria at her  age of or day of marriage which shall first happen pound and declare his will  to be that if his say son Charles shall die without issue male of his body  then live or which may afterward be bear that then his say daughter shall have  and receive at her age of or day of marriage which shall first happen the sum  of pound over and above the before mention sum of pound and in case the  contingency of his say son die without issue male shall not happen before  brown his say daughter age of or her day of marriage that then she shall  receive and be pay the say sum of pound whensoever it may after happen and the  testator appoint his say wife Dorothy the appellant Andrew wither his brother  and John white Esq his uncle his executors The testator then devise all his  land and tenement in the county of Southampton and elsewhere except his  freehold land and tenement in the parish and tithing of Kingsclere in the say  county to his say son Charles and the heir of his body remainder to the  appellant Andrew wither and his heir and direct that while his say son shall  be under age his executor shall receive the profit of his say estate towards  the performance of his will he also declare that the land and premise  immediate before devise shall be liable to and Chargeable with the payment of  the say pound thereby will to his say daughter whenever it may become due and  payable And to the intent that all his debt legacy and funeral expense may be  just pay and his ill punctual perform he devise all his say several freehold  farm and all his land and tenement in Kingsclere to the say Dorothy his wife  and the appellant Andrew wither and to the say John white and their heir upon  trust to employ the yearly profit thereof towards satisfy his debt and  performance of his will and thereby empower his executor as they shall see  occasion to mortgage or sell all or any part of his land and premise in  Kingsclere for the more speedy execution of his say will but that such part  thereof as shall not be dispose of shall after the fulfil of his will be to  the use of his say son Charles and the heir of his body and for default of  such issue to his brother the appellant Andrew and his heir for ever and the  testator by his say will authorize his executor to cut down and sell any of  the timber tree grow on any of his land in the county of Southampton or  elsewhere except such tree as shall be a ornament or defence to his capital  message of hall or any other of his message or house and declare that whereas  it be his intent and meaning that upon default of heir of the body of his say  son Charles his say brother the appellant Andrew wither shall inherit and  enjoy all his copyhold message and land in the tithing of Itchenswell in the  say parish of Kingsclere or elsewhere and all his other land and premise  wherein or to which he have or may have at his death any right title or  interest either fn law or equity if therefore his say daughter Henrietta maria  her heir or assign shall not at the proper cost and charge of the appellant  Andrew wither surrender the say copyhold land and premise to the use of the  say Andrew wither and his heir and make such other conveyance in the law which  the appellant Andrew wither shall be advice to for the better secure and  settle of the say copyhold and other the say land and premise accord to the  true intent and meaning of such his will that then the say legacy of pound  shall determine and be void and he give the residue of his brown personal  estate after payment of his debt and legacy to his say son Charles soon after  make this will the testator die leave the say Dorothy his wife the say Charles  his only son and the say Henrietta maria his only daughter whereupon all the  executor prove the will and possess themselves of the testator personal estate  and enter upon all the real estate and receive the rend and profit thereof and  continue so to do till Charles wither the son attain his age of and apply the  say rend and profit towards payment of the testator debt and legacy John white  one of the executor afterward die whereby the executorship and trust estate  survive to the say Dorothy and the appellant Andrew wither the say Charles  wither the son intermarry with the appellant Frances and the respondent dr  king with the say Henrietta maria the testator daughter after she have attain  her age of who afterward and in the lifetime of her brother die leave issue by  the respondent dr king several son and daughter on the that of November the  say Charles wither the son die leave the appellant Frances his widow and the  appellant Dorothy Henrietta maria and Ann his three daughter and coheir at law  but without leave any issue male of his body brown er p live at his death or  in ventre sa mere before his death he make his will and thereof appoint his  wife the appellant Frances sole executrix who prove the same and possess his  personal estate Charles wither the son be dead without leave any issue male of  his body live at his death and die seize and possess of a considerable real  and personal estate the respondent dr king on the that of April take out  letter of administration to his late wife and thereby become entitle to the  additional portion or legacy of pound Payable upon her say brother die without  issue male live at his death but the appellant refuse to pay the same the  respondent in easter term fill his bill in the court of chancery against the  appellant insist that the say contingency have happen he be entitle to the say  pound with interest from the death of the say Charles the son and that not  only the say Charles wither the father personal estate but also his real  estate be charge with the payment thereof but in case the court shall be of  opinion that the real estate of Charles wither the father ought not to be  Chargeable with the payment of the same by reason of the respondent wife die  before the contingency happen yet he insist that the personal estate must in  all event be liable to such payment and that if the same or any part thereof  have be exhaust in payment of debt he will be entitle the rule of the court to  stand in the place of such creditor who debt have be so pay and to have a  satisfaction out of the say Charles wither the father real estate by his will  subject to brown the payment of his debt so far as such debt have be pay out  of such personal estate so that every way the real estate of the say Charles  wither the father be and ought to be liable to the raise and pay the say pound  and interest to the respondent the respondent therefore by his say bill pray  that he may be pay the say additional portion or legacy of pound so give to  his say late wife with interest and that a account may be take of the personal  estate of the testator Charles wither the father and of the rend and profit of  his real estate and of the value of the timber fall therefrom and also a  account of the personal estate of Charles wither the son and that the  respondent may receive a satisfaction for the say pound and the interest  thereof from the death of the say Charles wither the son either out of his  personal or real estate the appellant by their several answer to this bill  insist that the respondent be not entitle to the say legacy in regard his wife  die in the lifetime of Charles wither the son and that it be the testator  intention appear from the word of his will that such increase of portion shall  be pay to his say daughter upon the death of Charles wither the son without  issue male if she shall be then live and not otherwise inasmuch as the  testator by his say will do not direct the same to be pay to her executor or  administrator and also in regard that Charles wither the father do not leave  personal asset sufficient to pay the same so that such increase of portion if  to be raise at all be to be raise out of his real estate by his say will  particular charge therewith on the that of July the cause be hear before the  Lord chancellor Talbot who declare that the will of the testator Charles  wither the father be well prove and be of opinion that the sum of pound be a  subsist charge on the say testator real estate and decree that it shall be  refer to a master to take a account of what be due to the respondent for the  say principal sum of pound with interest for the same at the rate of pound per  cent per and from the death of Charles wither the son and that the master  shall likewise take a account of the personal estate of the say testator  Charles wither and of the rend and profit of his real estate which be devise  by his say will and become due during the minority of the say Charles wither  the son and of the money raise by sale of timber from off the say estate which  be receive by the executor of the say Charles wither the father or by the say  Charles wither the son respective or by their respective representative and in  take those account the master be not to unravel the account which have be  state between the executor of the say Charles wither the father and Charles  wither the son and what if any thing upon take the say account shall appear to  have be so receive more than sufficient to pay the testator debt and funeral  expense and the other legacy give by his will be to be apply towards  satisfaction of what shall be find due to brown the respondent for the say sum  of pound and interest and in case the money before direct to be apply for  payment of the say pound and brown er p interest shall not be sufficient to  pay the same then it be further order that the master shall inquire what real  estate the testator Charles wither the father die seize of in feesimple in  possession or reversion and whether such reversion have be bar or not and as  to such estate whereof he die seize in feesimple in possession or in reversion  whereof the reversion have not be bar the master be to see such convenient  part thereof sell or mortgage as will be sufficient to raise the deficiency  and the money arise by such sale or mortgage be to be apply accord in which  sale or mortgage all proper party be to join as the master shall direct and  the master be to tax all party their cost of suit which be to be pay to they  out of the say testator estate from this decree the appellant appeal and on  their behalf it be argue d rider n fazakerley that the additional portion of  pound be give to Henrietta maria the respondent late wife upon the contingency  of Charles wither the son die without issue male and of her marry or attain  both those contingency ought to have happen in her lifetime before such  additional portion can vest in her so as to be transmissible as a charge on  the real estate to her administrator and as both these contingency do not  happen in her lifetime the additional portion ought not in favour of the  respondent as her administrator to be raise out of the real estate to the  prejudice of the appellant the coheir at law but ought to sink into the  inheritance agreeable to those determination in court of equity where portion  have be give to young child Payable out of land at a future time before which  time such child have die such portion have not be hold to have vest and ought  not to be raise for the benefit of the executor or administrator of such child  but to sink for the benefit of the heir or remainder man that in the present  case the additional portion not be give or make Payable by the will to the  executor or administrator of Henrietta show clear the testator intention that  it shall not be pay out of his real estate which he have entail in his family  to a stranger who have before receive a portion of pound with her but have  make no additional settlement in prospect of this pound nor can be oblige to  make any distribution thereof among the child of Henrietta in case the same  shall be pay to him As to the objection that Henrietta have a contingent  interest or a possibility vest in her with regard to this additional portion  of pound though she die before both the contingency actual happen and that  contingent as well as vest interest be transmissible to representative it be  answer that there be no instance where a executor or administrator have have  any advantage against a heir at law to charge his estate upon such a  contingent interest or possibility though there may have be brown case in  which a executor or administrator have have the benefit of such a contingent  interest or possibility against a executor or administrator and that many case  have be determine upon that precise distinction between a contingent charge on  a real and on a personal estate it be therefore hope that the decree will be  reverse on the other side it be say I will I strange that the single question  seem to be whether as Henrietta die in the lifetime of her brother Charles the  additional portion or legacy of pound give her on the contingency of his die  without issue male live at the time of his death belong to her representative  or become a lapse legacy by her die before her brother as to which it be  insist to be plain upon the face of the testator will that his intention be to  make a provision for his daughter not only by give her a portion of pound  Payable at of marriage but likewise the additional portion or legacy of pound  Payable on the contingency of her brother Charles die without issue male then  live that henrietta die in her brother lifetime be not any objection against  the respondent right to this additional legacy because it be express direct by  the will that though the contingency shall not happen before her attain or  before her marriage yet the say additional portion or legacy of pound shall be  pay whenever the say contingency shall afterward happen without annex any  restriction thereto of the daughter be then alive and in another part of his  will the testator express declare his meaning to be that the land and premise  thereby devise to his son Charles with remainder in fee to his brother Andrew  shall be liable to and Chargeable with the payment of the say pound whenever  it may happen to become due and Payable which show the strong intention in the  testator that this pound shall be a charge on his real estate brown er p upon  the death of his son Charles without issue male whenever that contingency  shall happen whether his daughter be then live or not that the several part of  the testator will be thus take and consider together it be hardly possible for  he to have express himself in clear or strong word to prevent any doubt  concern the respondent right to this legacy which be in its nature one of the  consideration for henrietta advancement in marriage the respondent conceive  himself to be clear entitle thereto as her husband and administrator and  therefore hope that the decree will be affirm accord after hear counsel on  this appeal it be order and adjudge that the same shall be dismiss and the  decree therein complain of affirm jour vol p