case march this day the Cause of Trafford versus boehm stand for judgement  Lord Hardwicke have take a few day to consider of it see boehm v clarke Ves  greenwood v Vernon king I by indenture of the that of November between clement  boehm of the first part and Dilke of the second and two trustee of the three  recite a marriage intend between clement and and and that she be seize of land  in hackney she with the privity of clement for the better provision for her  and her issue by clement grant and release the land to the trustee and their  heir atkins to the use of clement and and during their life and the life of  the survivor remainder to the trustee to preserve contingent remainder  remainder to the first son of clement by and in tail male remainder to the  second and every other son in tail male remainder to the daughter in tail  general remainder to the survivor of clement and and in fee and by the same  deed and assign pound in money to the trustee to be lie out in purchase land  in feesimple with the consent of clement and and and the survivor to the same  use as be limit of the land release by this deed and a proviso that the  trustee if require shall lie out pound part of the pound in the purchase of a  house to remain to clement and Ann or the survivor and by the same deed and  assign to the trustee pound due to her from the chamber of London to be lie  out in land to the same use clement covenant to leave and such part of the  personal estate as she shall be entitle to by the custom of London in case he  be a freeman at his death atkins er p there be issue of the marriage Sigismond  boehm afterward call Trafford the old son and the plaintiff late husband and  several other child upon the marriage of the plaintiff with Sigismond Trafford  her fortune be to be lie out by Henry Heathcote and Charles boehm the trustee  under the settlement before marriage in the purchase of land to be settle to  several use with a express proviso that Heathcote and boehm till a proper  purchase of land can be find shall by Sigismunds direction or consent invest  the trust money in government fund or other good security and there be a  recital in this settlement that Sigismond by virtue of his father marriage  settlement be seize in remainder of the land in hackney to he and the heir  male of his body and to the reversionary interest in the pound part of the  pound and in pound S d produce from the pound orphan stock and that he  covenant to convey if he survive his father the land in hackney the pound and  pound S d to the trustee for the more effectual raise so much as with the  atkins plaintiff fortune will purchase land of ayear for particular purpose  Henry Heathcote die and all the trust money remain in the hand of Charles  boehm the plaintiff fortune lie dead and no proper purchase then offer thereof  be by the direction of her father and her husband invest in the purchase of  pound Southsea stock three year afterward Southsea stock be great fall and the  plaintiff father and husband apprehend a further fall it be sell by Charles  boehm and the sum of pound S be lose by the difference of price in buy and  sell the Southsea stock clement boehm the father of Sigismond by his will date  the that of July devise to Sigismond the land in hackney and the two thousand  four hundred fiftyfive pound fifteen shilling and ninepence videlicet the one  thousand eight hundred fiftyfive pound ten shilling and ninepence and the six  hundred pound above mention and give to his son clement boehm pound and to  hisother child diverse legacy and the residue of his estate to his son Charles  and Edmund who he appoint executor and declare he have give all his child more  than be come to they by the custom of London and therefore will that upon  payment of every legacy a full discharge shall be give to his executor and in  case of refusal of such discharge he or she refuse shall have no more of his  estate than be due by the custom the testator die in June and the two follow  receipt be give by Sigismond and clement receive may the that of my brother  Charles boehm and Edmund boehm executor to my father decease the pound S d  pursuant to my father last will and in full of all claim and demand whatsoever  upon my father estate by virtue of his marriage contract or otherwise  acknowledge this receipt to be a full release and discharge to his executor  Sigismond trafford receive the d of November of my brother Charles and Edmund  boehm executor to my father decease the full sum of pound pursuant to my  father last will and accord atkins I quit claim for ever to any and all demand  whatsoever upon the estate of my father acknowledge and declare this to be a  full discharge to his executor clement boehm the plaintiff husband die the  saint of February without issue leave his brother clement boehm his heir at  law by his will date the that of march Sigismond give all his real estate to  the plaintiff for life without impeachment of waste and after her death and  failure of issue by he and payment of debt to his sister Theodosia Hopfer for  life with remainder to several other person for life remainder to his own  right heir and take notice of the settlement make on his marriage and that the  trustee be to la out the plaintiff portion in land and that he have no issue  he charge the reversion in fee of the land purchase or to be purchase with her  portion expectant on the deceases of the testator and the plaintiff and  failure of their issue with his debt and after payment thereof devise the same  to his brother and sister in such manner and for such estate as he have before  devise his real estate with remainder to his own right heir atkins er p  clement boehm the brother of Sigismond die the that of September leave the  defendant clement Trafford a infant his only child and heir at law Lord  chancellor I be extreme well satisfy with the opinion I be go to give and  therefore do not think I ought to delay the party by put it off to a further  time the end of mrs traffords original bill be to have the benefit intend for  her from her portion and her husband covenant in the settlement previous to  her marriage the end of Charles Boehms cross bill three son of old clement  boehm and survive trustee under his brother marriage settlement be to have the  trust of that settlement perform and to have all just allowance and in  particular to be discharge of the pound S part of the trust money lose by the  fall of the Southsea stock and that the pound and pound S d make together S d  may either be apply to make good the trust of the settlement of the that of  November make on the marriage of old clement boehm or to make good the trust  of his brother Sigismunds settlement as the court shall direct under these  covenant and these trust several of the question arise atkins one question be  upon who the loss of the pound S shall fall and whether that loss have arise  from a disposition of the trust money accord to the term of the trust I be of  opinion the loss have not happen from a disposition of the trust money accord  to the term of the trust but that it have be lie out in a different manner  from what be intend by the trust to be invest till a purchase of land can be  find in government fund or other good security neither Southsea stock nor bank  stock be consider as a good security because it depend upon the management of  the governor and director and be subject to loss for instance it be in the  power of the Southsea company to trade away their whole stock while they keep  within the term of their charter vide Jackson v Jackson ante atk vol but  Southsea annuity and bank annuity be of a different consideration the director  have nothing to do with the principal and be only to pay the dividend and  interest till such time as the government pay off the capital and it be not in  their power to bring any loss upon they and therefore be only and proper good  security the word fund do not alter it because it must relate to such fund as  be a good and undoubted security there be no doubt but this court will  endeavour to deliver a trustee from any mischief that may happen from a  misapplication of trust money which bring it to the consideration how this  loss be to be make good to the trust estate now as to the manner of make it  good to the trust estate it must first come out of the estate of Sigismond  Trafford because do neither with his concurrence or subsequent assent for he  have pass the account with his brother Charles and constant receive the  dividend of the Southsea stock the rule of the court in all case be that if a  trustee err in the management of the trust and be guilty of a breach yet if he  go out of the trust with the approbation of the beneficiary and trust it must  be make good first out of the estate of the person who consent to it atkins  therefore Sigismunds estate must be apply in the first place the next question  be and the principal one in the cause as to the sum of pound S d arise out of  the fund which be part of the portion of old Mr clement Boehms wife whether it  shall be consider as real or personal estate upon the circumstance of the case  it must be admit that it be to be lie out in land and consequent on the foot  of the settlement in must be take prima fancy as land and go as real estate  will have do the question will be then whether the act since do be sufficient  to bar the entail as it be call or to discharge the transubstantiate real  quality give it in the consideration of this court it be a transaction of  fifty year stand and it appear too that the money though vest in trustee be in  the hand of old Mr clement boehm Sigismond have a expectation of this money  come to himself and by his settlement covenant that in case lie survive his  father he will assure and make over the pound S d atkins er p to the trustee  for the more effectual raise so much as with the plaintiff fortune will  purchase land of pound per and this be not make a part of the fund to be lie  out but a further sum for the purchase of land for the plaintiff benefit old  Mr clement boehm on the that of July execute a will and take upon he to make a  disposition of his estate among his child and give the pound S d to Sigismond  Trafford after his death the child accept their legacy and Sigismond and  clement sign receipt and discharge to the executor of old Mr clement boehm and  the other son give discharge for their legacy likewise upon this it have be  insist on the part of the plaintiff mrs Trafford that it be not now to be  consider as a debt and subject to be lie out for the benefit of the  remainderman in tail under the deed of because Sigismond Trafford the first  tenant in tail take the money with the consent of his other brother and  therefore be discharge from the entail two objection have be make on the part  of the defendant clement Trafford the son and only child of clement boehm the  young and consequent if a remainder exist in this money he be entitle to it  the first objection be that these act be do by the party subsequent to the  settlement in and be not sufficient atkins to show the intention of the party  that the entail of this money shall be bar the second objection if sufficient  to show the intention yet can be a bar without a decree of this court I be of  opinion the act do by the party be sufficient to show it be their intention  particular of clement the father to bar that analogy to the real or that  entail quality in the money old clement give this very sum to Sigismond and  apprehend that he be dispose of his own estate and unless he have give he this  he have give nothing to Sigismond then follow the clause in the will relate to  the release it have be object that this be to be confine to the disposition of  his personal estate accord to the custom of London but it ought not to be  narrow in this manner for he intend clear to bar his child of all the claim to  every part of his estate by the legacy give to they what be do subsequent a  payment be make by the executor to Mr Sigismond Trafford of the pound S d in  satisfaction of all his claim he may have under the marriagesettlement and he  have give a receipt in full of all claim and all the child with notice of  their father will do the same therefore I be of opinion it be the intention of  the party that Sigismond Trafford shall have this money as his absolute  property take in the circumstance arise from the consent of the remainderman  the next question be whether the act do have discharge this money from the  transubstantiate real quality which the high power of this court give to money  what govern the court in this respect be that they consider thing contract to  be do as actual do and let they have all the consequence as if formal execute  therefore if there be a agreement to purchase land the court look on it as do  Guidot v Guidot ante atk but if the party interest have agree that the money  shall not have this quality that be to be entail it discharge it of the entail  crabtree v bramble post atk note atkins if a man be entitle to have money to  be lie out in land to be settle to the use of he and his heir there he shall  be entitle to the money in this court and if the party in his lifetime show  any intent to have it in money and die then the court will give it to his  executor and not to the heir see Seeley v Jago p W Cunningham v moody Ves if  money be direct to be lie out in land and limit to a in tail remainder to be  in tail remainder to c in tail the court will direct it to be lie out in land  if nothing have be do to bar the remainder see collet v collet ante atk vol h  but if a person be tenant in tail reversion in fee to himself the court will  give he the money because by a common conveyance he may bar the entail and  reversion and therefore the court will not put he to the circuity of have  recourse to a legal bar money covenant to be lie out in land shall descend as  land but he that be entitle to fee of the land when purchase may dispose of it  by a will though not attest by three witness also a parole direction for the  payment of it seem to be good so if the money be order or devise to be lie out  in land and settle to the use of a in tail remainder to himself in fee equity  will order the money to a otherwise if the remainder thereof be limit to a  three person also though by a voluntary contract money be agree to be lie out  in land the court will execute such agreement in favour of the heir Edward and  lady Elizabeth his wife versus countess dowager of Warwick p wms see note to  collet v collet ante atk vol atkins er p in Edward versus the countess of  Warwick p wms Lord Macclesfield have lie down the rule of the court in these  case the limitation here be to Sigismond Trafford boehm in tail remainder to  his brother in tail remainder in fee to himself this money have be pay to he  with the consent of his brother be there then any entailable quality remain in  this money suppose a bill have be bring by Sigismond Trafford boehm to have  the money pay to he instead of be lie out in land and his brother have by  their answer submit this money shall be pay to Sigismond can the issue of the  brother have insist it shall be lie out in land most clear not for their issue  be equal bar as if the brother have receive a part of the money themselves but  it be object there be no instance of this be do without a decree of the court  for that purpose atkins it be the first time I have hear it lie down that the  decree of this court be necessary and that the party must come here to have  the sanction of the court indeed if the tenant in tail or remainder in tail  have be a feme covert she must have come here that the court may have ask her  the question whether it be with her consent that the money be to be pay  instead of be Iaid out in land as in the case of a fine Oldham v Hugh ante vol  post it be say there be no precedent and indeed I can say that I have know  this court decree act of this kind to be good but I will make a precedent vide  chaplin versus Horner p wms where money be covenant to be lie out in a  purchase of land and to be settle on a in fee the heir and not the executor of  a shall have it but if a himself have receive any of this money this be a good  payment and shall not be repay by a s executor to his heir also if a in this  case die a s heir shall recover the remainder of the money not receive by a so  if a s heir be a infant and the remainder of the money be decree to be bring  into court it shall be look on as land chaplin versus Horner ux p wms bill be  general bring in case of this nature for the satisfaction and security of  trustee the court pursue the right of party and whatever a court of commonlaw  do by a judgement or this court by a decree be in affirmance of the right of  party and do not give they a right which they have not before why do the court  decree the money because the person be entitle to it and the court be of  opinion the party have the right be the ground on which the decree be make but  where the money be in the hand of tenant in tail with remainder in fee in  himself if he be to bring a bill to have a declaration of the right of the  party it will be dismiss for this court do not make a declaration of the right  of party but decree upon the right of the party as they appear in themselves I  mention this to show that all the court do be in consequence of a antecedent  right of the party and there be no occasion for a decree in this court unless  there be a incapacity of the person as I say before in the case of a feme  covert it I as be say that the money still retain the real quality and  therefore must be lie out in land Sigismond Trafford boehm show his election  to have it in money destroy that transubstantiate real quality for he have  accept it as money under the will and give a discharge for it atkins to the  executor and by a subsequent settlement in have take upon he to make a  security oh it as money I be of opinion therefore this sum be n t liable to  any entail nor to be lie out in land or consider as a debt upon the estate of  Sigismond Trafford boehm the next question be as to the limitation of  Sigismond traffords estate under his win whether the limitation to his sister  in failure of issue by he be a good limitation I have a good deal of doubt  with myself in this point but there ita plain reference to the deed of  settlement execute before and show he intend to give this as a reversion after  the limitation of his settlement be determine but suppose there have be no  reference if a man limit ten thousand pound in failure of issue of the body of  husband and wife to any other person in tail the remainder will have be void  as a executory devise be too remote as it be upon a die without issue general  of the husband and wife but here as be just observe in the cause all the  limitation by Sigismond be for life therefore it be a reasonable atkins er p  construction to confine it to a failure of issue during the life in be which  have be hold in the case of executory devise to be a reasonable construction  if it fall within the compass of ever so many life in be at the same time see  Hodgeson v Bussey ante atk vol beauclerk v dorm ante atk vol his lordship  decree therefore the limitation under the will of Sigismond to his sister  Theodosia Hopfer one of the defendant in the cause to be a good limitation as  to the seven acre of land in hackney the estate of old Mr clement Boehms wife  before her marriage and limit to several person under the deed of his lordship  be of opinion that no consent or agreement of the remainderman where there be  a feme covert unless there have be a fine can bar the entail nor be it in the  power of a court of equity to carry such agreement into execution as to a  legal estate and therefore must take its course accord to the legal intent and  go to the person who be entitle at law Reg lib b roll vide ante atk atkins  hear before the master of the roll sit for Lord chancellor march case ground  and Elizabeth his wife young daughter of Nathaniel Rokeby plaintiff Edward  executor of Rokeby and mary his wife old daughter of Rokeby and other  defendant sum of money give to the daughter of a freeman of London after her  marriage by the father where they do not appear to be on account of the  marriage and as a advancement will not bar her of a share in the orphanage  part of his estate so Jenks v Holford vern fowke v lewen vern hear v barber  ante Elliot v collier post will S c Nathaniel Rokeby about fifty year ago  become a freeman of London and have issue by his wife only two child the  defendant mary and the plaintiff Elizabeth in the plaintiff intermarry without  the consent of Elizabeth father or mother but the father be soon after through  reconcile to the plaintiff Elizabeth never have any advancement from her  father but the defendant mary have upon her marriage with Edward two thousand  pound pay to he in part of her portion and advancement and a bind be enter  into by Rokeby previous to this marriage condition that his executor shall  upon his death or soon after pay the further sum of two thousand pound to be  lie out in land or otherwise as a provision for mary and her issue the bill be  bring for Edward to account with the plaintiff for the personal estate of  Nathaniel Rokeby it be insist for the plaintiff that mary have be advance by  her father with pound and pound she ought to bring the same into hotchpot and  the orphanage part of the testator estate shall be divide into moieties  between mary and Elizabeth it be insist likewise by the plaintiff that  notwithstanding after their marriage Nathaniel Rokeby do in his lifetime give  the plaintiff some small sum of money by way of present on particular occasion  and some other sum as a recompense and satisfaction for his own his wife  friend and family board and lodging with the plaintiff and be entertain by  they very often for a considerable time together the whole of which present  amount only to pound yet that they be free gift only of the father and ought  not to be consider as a advancement atkins on the other side it be say for the  defendant Edward and his wife that as Nathaniel Rokeby do after the  intermarriage of Hume with his daughter Elizabeth to they several considerable  sum of money and a great quantity of household and other furniture amount to  more than pound he design it as a advancement of his daughter Elizabeth Hume  and therefore be not entitle to a account of Rokebys personal estate Elizabeth  be full advance in his lifetime and it be insist further that if the account  be decree they be not oblige atkins er p to account for four eastindia bind of  Nathaniel Rokeby because in his lifetime he write a letter on the that of  November to the defendant John Edward and desire he will dispose of four India  bind the defendant then have by he of Nathaniel Rokebys and buy the house in  savage garden which he thereby write he make a present to the defendant mary  his daughter that the four bind be accord dispose of on the that of December  follow for pound S d and the house agree for and purchase by the defendant and  convey to trustee for the use of the defendant and his heir in case his wife  die in his lifetime but if she survive he then to her and her heir the  defendant insist that as this be direct to be lie out in the purchase of a  particular freehold estate by the father Nathaniel Rokeby and be lie out  accord from the time of its be invest in land it be no long subject to the  custom of London and therefore be not oblige to account for these eastindia  bind the counsel for the plaintiff as to the India bind argue it be give only  so much money to mary and the subsequent word buy the house in savage garden c  be a designation only by Nathaniel Rokeby but not a positive direction to lie  it out in land and therefore the property be not alter but continue personal  estate and dividable accord to the custom master of the roll William fortescue  Esq the bill be bring by Hume and Elizabeth his wife to be let into the  orphanage share of Nathaniel Rokebys estate when he marry Elizabeth it be  against her father consent which be itself a bar to the orphanage share  fawkner v Watts atk if the father have not be reconcile but as that appear  full in proof the only question be whether the sum receive by the plaintiff  the husband after marriage shall be consider as a advancement and bar her of  her orphanage share wheresoever there be a advancement in marriage it shall be  a advancement in full unless the father of the child by atkins his last will  and testament or some other write by he write and sign with his name or mark  shall declare or express the value of such advancement Eq Cas Abr chase and  box vide fawkner v Watts atk in the case of Fouke versus lewen vern there be a  qure whether any provision make by the father for his child be a advancement  or whether only such a provision as be make on the marriage of the child but  hold in the case of Jenks versus Holford vern that sum of money give by a  freeman of London to a daughter if not give as a marriage portion or in  pursuance of a marriage agreement be no advancement in the case of chase  versus box Eq Cas Abr the certificate mention that a advancement to exclude a  child must be in consideration of marriage and there be no case that a sum of  money give by a freeman to his daughter upon any other consideration be a bar  of the orphanage share therefore the plaintiff be not bar by any of the sum  give after marriage as it do not appear to be on account of the marriage and  as a advancement the next question be what the plaintiff shall bring into  hotchpot now upon the authority of Jenks versus Holford whatever the father  give to such child must be bring into hotchpot but there be a exception in  this case to the general rule because the father live frequent a fortnight or  three week with the plaintiff and his wife it be reasonable they shall be  allow something for the father live with they for some time it be a sort of  natural debt from he to a child and therefore I shall not send it by way of  quantum to deserve to a master because I think what present the father make  shall be consider only as a recompense and satisfaction for their trouble  morris v burrow atk but refer it to he only to see what the sum be t hat be  give by way of satisfaction and compensation for the expense that the father  put they to the next consideration be what must be bring by the defendant  Edward and his wife into hotchpot the pound give in marriage and the pound  secure by bind must unquestionable be bring into hotchpot the only question  then be whether the eastindia bind shall be bring in atkins it be a general  rule that settle land that a freeman on a child be not such a advancement as  shall be bring into hotchpot atkins er p it be insist upon by the plaintiff  that this be the same as give money and not a absolute direction of the  freeman to invest it in land and therefore must be bring into hotchpot on the  other hand it be insist by the defendant and very right that this shall be  look on as a purchase for the estate be buy in the lifetime of the freeman and  though settle on one of the child yet it shall not be bring into hotchpot for  the money be the father and lie out by his direction in the purchase of land  the same rule which make it liable while money to be divide accord to the  custom take it out of the custom when invest in land another objection be that  this land so purchase be not settle accord to the father intention who design  it for his daughter benefit and her separate use but whether so or not be of  no avail because be lie out in land take it out of the customary estate and  therefore not subject to be bring into hotchpot and if improper settle the  court will take care to see it carry into execution accord to the intention of  the party see annand v Honywood Charles Rep babington v greenwood p W his  honour decree a account of the testator Nathaniel Rokebys personal estate