bertie ux content dom falkland term hill will III Lord chief justice holt  argument the case be Mr carry be seize in fee of the manor and land in  question upon the that of September make his will and thereby devise the say  estate to trustee therein name and their heir and direct the trust thereof to  be to the trustee and their heir in trust for mrs Willoughby who be also heir  at law to Mr carry for her life in case within three year after his death she  lawful marry the Lord Guilford and in case the say marriage shall take effect  to the old and other son of mrs Willoughby by the Lord Guilford in tail male  but if no such issue be have or in case the marriage shall not take effect  within three year after the death of Mr carry then the trust be devise over to  the Lord Faulkland after the that of the same month Mr carry recite the  bequest to mrs Willoughby make a codicil and thereby declare it to be his will  that if the say marriage between the Lord Guilford and mrs Willoughby take  effect before the age of consent of both or either of they it shall be of no  avail or signification unless it be confirm by both party at their age of  consent after in October follow Mr carry die and diverse transaction were  between the guardian of the Lord Guilford and mrs Willoughby and her friend  about the marriage who insist upon term and a settlement of a proportion of  the Lord Guilford estate upon her but the Lord Guilford do never make his  application to her about it but the three year after Mr carry case in chancery  death do expire several proposal within the three year we re indeed make b the  friend of mrs Willoughby to the Lord Guilford guardian but not accept of by  the guardian of the Lord Guilford and the three year after Mr carry death be  elapse the young lady marry the plaintiff the question be whether this appear  to be the case and no default or neglect appear in mrs Willoughby who as be  urge press the marriage as far as the modesty of her sex will allow of she  shall not have the aid of a court of equity and this do arise upon the  construction of the will diverse thing indeed be mention by counsel and proof  be make of diverse discourse and letter have pass by Mr carry express a  kindness to mrs bertie then mrs Willoughby his be niece but all those and  other the evidence that be produce be to be reject no notice case in chancery  er p be take of they in the bill to which they ought to be confine beside such  matter neither before nor since the statute of fraud and perjury will control  the will or if they will yet the will and codicil be the last Act of his life  do repeal all his other act he think upon consideration of the will there can  be no relief first because the estate be give to mrs Willoughby upon a  condition precedent which be that if she shall be marry to the Lord Guilford  within the time appoint it be give to her and such be the nature of a  condition precedent in point of law that no action interpose can be ground to  relieve upon if it be not perform so that be a condition precedent although  the Lord Guilford have die within the three year and so the condition have  become impossible by the Act of God it can not have help the lady it will not  be easy in a court of equity to show any precedent of a relief in case of  condition precedent as often happen in case of condition subsequent which not  be favour because they go in defeasance of estate this court may relieve if it  be perform in the substantial part though some of the circumstance be not  pursue the second reason be because it be not only so in point of law but also  by the express declaration of Mr carry the testator it be his purpose that the  marriage shall take effect for he do not give her the estate upon any Act in  her own power it be limit to her in case the marriage take effect to which  there be to be the consent of the Lord Guilford as well as of the lady the  marriage be appoint to be within such a time or else the estate to go over to  the Lord Faulkland beside the addition of the codicil although they shall  marry within age yet if both party do not confirm the marriage at their  respective age of consent it be the same thing and the lady to be exclude the  three reason be because it do appear by the will that the actual marriage of  the Lord Guilford to the young lady mrs Willoughby case in chancery be the  only consideration of the gift of the estate for he have a great kindness for  the Lord Guilford and do not give it to any heir that the lady shall have but  only to her issue male by the Lord Guilford it be urge that mrs Willoughby be  heir at law and therefore every thing shall be construe beneficial to her to  which it may be confess that heir at law be much favour if the word in a will  be ambiguous but that rule shall not extend to defeat a interest well vest  when the word of the will be very express and the construction can admit of no  doubt it be also insist by the plaintiff counsel that if the lady shall by the  will have a estate for her life a decree shall also be in favour of her issue  by the plaintiff Mr bertie but for that there can be no pretence it be so very  contradictory to the will and the intention of Mr carry then it be evident  that as the testator design a kindness to the Lord Faulkland so he have a  respect to his own name and more incline to support that than the lady be  interest for have he have any great respect to the lady he will not have put  such hard term upon her he have not give it to her heir male in general but  such only as she shall have b that the Lord Guilford he only give her a  conditional estate for life when otherwise after his death she will have have  the absolute inheritance and so the will be so far from be to her advantage as  to amount to a disinheritance of her who be the heir at law to Mr carry the  testator this be the state of the case what shall a court of equity do shall  it give her the estate though marry to another person this be not within the  word or equity of the will but in express contradiction to both of they if the  estate indeed be upon a subsequent condition equity may interpose where the  substance be perform though not in every matter literal pursue but where it be  in no part perform as in this case it can never help there be a case cite  between and the substance whereof be that r by will devise a estate to h p  upon condition that he shall convey two three of it over to another which if  he do not do the whole be to go over to a three person he do not exact convey  over these two three but do convey what be equal in value to the two three and  allow good because be as good in one place as in another but have it not be  perform and the value of the two three convey it must have amount to a  destruction of the estate case in chancery er p the case of fry and porter Mod  Rep in this court be much strong than this case for there the Lord Newport  devise NewportHouse to his lady for life and after to his grandchild whether  knoll and to the heir of her body upon the condition that she marry with the  consent of his wife and the earl of Warwick and Manchester or the major part  of they but if she marry without such consent case in chancery or die without  issue then he give it to Geo porter after the devisor die the young lady not  have notice of the will marry without the consent of any of the trustee the  estate be forfeit in law and after in this court by the advice of two justice  and upon a great debate it be hold she can have no relief although she be a  infant and have no notice and consequent do not know that she be under the  obligation of have the advice and consent of the trustee but yet she lose her  estate and can not have any relief that can it be pretend in this case for  this lady be acquaint with it she have notice and be Willing to comply with  the marriage the case also of my Lord bath and Montague be cite to show how  the term on a power of revocation ought to be pursue for those person that  derive a estate from another must take it upon those term upon which it be  convey it be object that this be a trust and this court may qualify a trust  and dispose of it in a different manner than of estate to which it be answer  that this court have as great a power upon a estate as upon a trust and may as  well transfer a estate as it may a trust it be the Groundof equity in one case  or the other that entitle this court to its jurisdiction the lady be under  this further difficulty that if three year be elapse and the marriage between  her and the Lord Guilford shall take effect that yet there will be no room for  any relief but that case be not this neither for here she marry when there be  a possibility of marry the Lord Guilford and so have destroy her equity quite  by disable her self for once disable and ever so so that if it shall ever  happen to be a match between this lady and the Lord Guilford it can never  secure the estate to her infancy will not secure her for where infant take by  will they be bind as strict as other person it be also insist upon that the  lady be manage by her trustee and if the trustee insist upon term it will be  hard that she that ought to be govern by her trustee shall lose the benefit of  the estate by their mean but how can it be help the trustee do it indeed out  of respect to the lady to get the best term they can but they meddle in a  matter they have nothing to do with they be trustee of the estate but not of  the person and have no authority to obstruct the marriage beside Mr carry do  not intend there shall be any settlement he leave her a fair fortune so as not  to stand in need of any jointure and when he do not expect such a provision  shall be make how come it to pass that the trustee shall interpose it be  unreasonable for the trustee to meddle in it for the marriage be design during  the minority of the Lord Guilford and the trustee of that Lord be not oblige  to charge their own estate and the Lord Guilford himself have no power to make  any settlement during his minority case in chancery then as to the order that  be obtain heretofore in this court they be not at the prosecution of the Lord  Faulkland who be a perfect stranger to all these proceed and therefore they  can be no injury to his Title wherefore he conclude that the plaintiff bill  ought to be dismiss and of such opinion be the Lord chief justice Treby who  argue the day before Lord chancellor summer that it be plain upon the devise  word of the will that by the intent of Mr carry the plaintiff lady be to take  nothing but upon a condition precedent the estate be limit to the trustee for  three year and the profit be to be apply for several purpose during that time  it be contingent who shall take at the end of the three year if my lady marry  the Lord Guilford within the three year she be to take for life and after her  issue male by the Lord Guilford but if she do not marry within three year  after the devisor death it be to vest in the Lord Faulkland it be say by the  defendant counsel that the word do not imply a condition precedent but if they  be to advice how to make a condition precedent they can not frame one strong  than the word set down case in chancery er p to say that if the lady be lawful  marry be the same thing as if she be Willing to be marry be a strange  construction and a manifest violence to the plain word it be not possible that  any other part of the will can make a different construction from the devise  word nothing can be infer from her be heir at law for the frame of the will be  such as to exclude her from claim as heir at law for though she comply with  the term of the will she be to have no more than a estate for life as to the  intention of Mr carry in expression precedent that can make nothing in the  case for he may change his mind as often as he please some letter of Mr carry  to the lady be object which have they read or prove will have be of little use  because it be not pretend that he be at all after surprise in the make or pen  of the will the precedent intention be as full prove in fry and porter case as  in this and yet there it prove ineffectual it be say that it be not the  testator design to exclude the young lady without her default it be most  evident that it be his intent to disinherit her for he give her only a estate  for life by will in case she do comply with the term of it but nothing if she  do not upon consideration of the word of the will he have as greata  consideration to the Lord Guilford as for this lady the remainder be limit to  the issue of the lady by the Lord Guilford then whether it ought to make a  difference that the interest dispose of by Mr carry be not a legal interest  nothing be sure case in chancery better settle in this court then rule of  property if the same word be use can have different signification in several  court although court of equity may and do relieve against point of law in case  equitable consideration do arise thereupon it be insist that although it be  admit that the condition impose be not literal perform yet if it be comply  with in equity it will suffice and that it be so they urge that if the lady do  all in her part to be perform she shall not lose the estate that this be the  favourable case of infancy and the case of forfeiture that the lady make such  advancement as the modesty of her sex will admit of that she send proposal  such as be condescend on her part to consummate the marriage and stay till the  Lord Guilford come to his age of consent before she marry as to the late part  of the case he say he do not doubt but that if the defendant the Lord  Faulkland who be to have the advantage of her not marry have by any underhand  act of his put a stop to the intend marriage there equity will have interpose  for the benefit of the lady but whether any other Cause whatsoever that do do  arise from the Act of those that be to take advantage by it will be sufficient  to excuse a nonperformance will be hard to maintain if the Lord Guilford have  die within the time or refuse to marry her she have not be in a better case so  if he have marry her and have after dissent at the age of consent though in  such case it will be hard it be Mr carry disposition and can be help this  court can make a new will but a man that have a estate have the full power  over it and Mr carry may annex what condition he lease to his own estate  beside the lady and her trustee be not whole to be excuse for upon the  December the trustee of the Lord Guilford desire a present marriage to which  she answer in write to her the proposal be make and the answer that she when  he attain the age of consent will give her answer be a refusal for that time  then further step be take the lady send her proposal in to the Lord Guilford  to which his guardian answer that he be ready to consummate the match but can  not enter into the consideration of the proposal make the next step be make by  the guardian of my Lord Guilford signify that he have arrive to the age of  fourteen and be ready to perform the marriage the answer to which in write be  that she will first expect her proposal to be comply with the father of the  Lord Guilford die before Mr carry the testator so that Mr carry may have  inform himself of the Lord Guilford estate how it be leave case in chancery er  p and whether any settlement may be convenient make by he in upon the match  but the testator do not impose any term or require any thing to be do by that  Lord but that he shall marry the young lady Mr carry know the age of both the  party and restrain the marriage to the three year case in chancery after his  death at which time no settlement can be make because of the infancy of the  Lord Guilford infancy can be no excuse for the nonperformance of the condition  because it be plain the condition be to be perform when a infant or else it  can never have be perform in fry and porter case the lady be a infant and be a  hard case than this because there be no notice of the will at all but where a  infant be bind to perform a condition he be bind to it as strict as other  person of full age as to the proposal in behalf of the lady make they be to  put the young Lord in a worse case than be design by the will of Mr carry  beside that the Lord Guilford be not to take any estate himself by that will  only the issue male he shall have by mrs Willoughby then if the Lord Guilford  may have go further than he do if he have please yet that be not to be the  measure of justice in case he go as far as hp be oblige to do if the proposal  on the part of the young lady be never so reasonable and the lord guardian be  very unreasonable that do not relate to the person in remainder without any  default of the Lord Faulkland the trust be vest in he and what equity be there  to take it from he who be no confederate nor party to any contrivance to  defeat the lady there be no suit at all against he he be a infant and not  privy to any ill practice the condition be not perform and thereupon his  interest commence the case of the Lord Salisbury and Bennet go upon different  ground from this case because there be no disposition of the money over and  then the rule admit it shall be only token in terror the sum of money in the  case mention be to be divide among the daughter if they marry with consent of  their two ant under their hand and seal the one of the ant agree to the  marriage of one of the daughter tinder hand and sea the other aunt be attend  about it but hesitate upon the matter and tell the intend husband that she be  go out of town and advice he to pursue the design by which she do not absolute  refuse he but until she come to town where such thing as be to be perform may  be value as convey a estate or pay money there this court do give relief  because it can make amends for want of time and other circumstance so two case  of condition subsequent equitable consideration may govern but otherwise in  case of condition precedent where nothing ever vest if condition subsequent  annex to estate become impossible by the Act of God the party shall have the  estate but otherwise in case of condition antecedent whereas it be pretend  that the marriage of the lady to Mr bertie shall be a equivalent to her  marriage with the Lord Guilford that can be warrant for though both the person  case in chancery be of equal honour and estate yet the intent of Mr carry be  to be consider who have a eve to the Lord Guilford and therefore this be not  to be resemble to the conveyance of a estate or payment of money where such  equivalent may be allow and Mr bertie counsel be in this bill at a loss what  conveyance of the estate to ask then the last thing to be consider in the case  be how far the proceed in chancery may influence it it be urge that several  order have be make in this court in opposition to the proposal of the guardian  of the Lord Guilford by the Lord chancellor jefferies that no marriage shall  be have unless a compliance be first make to the lady be offer that the will  direct the account to be take in chancery and that this court have the care  and order of infant to which he answer that true it be that several thing be  trust with this court it have jurisdiction of infant idiot and charitable use  several statute have alter matter in the power of this court and so far they  be alter and no far the court of ware and livery with respect to infant and  idiot be take out of this court and transfer in some measure to that but by  the dissolution of that court return to this again that guardian be appoint by  Writ for infant and one case in chancery er p or more guardian joint that the  law be favourable to infant no decree of this court shall he have against they  but what they may show Cause against when they come of age this court will  make stranger Accountable to infant in case they take the profit of their  estate and though a particular person be appoint to take a account this court  can direct it shall be take before the court this court upon application make  to it by guardian have settle the maintenance of infant but in case of infant  this court will never dispense with a condition precedent or take away the  right of one infant as the Lord Faulkland be and give it to another or can it  ever bind those party that be never party to the suit the order obtain of the  Lord chancellor jefferies be upon misinformation and false suggestion they  tell he that good term may he have for the lady in case they be insist upon it  be suggest that she be ill provide for and the end of the petition do not  agree with the suggestion of it that therefore the Lord chancellor not be  inform of the true circumstance of the fact the order ground upon such false  suggestion can not be at all bind wherefore he decree that the plaintiff bill  shall stand dismiss freeman er p freeman chancery report volume report of case  argue and determine in the high court OF chancery principal between the year  and but include some early decree of that court and a few case decide on the  equity side of the court of exchequer by the Hon richard freeman late Lord  chancellor of Ireland second edition by John EYKYN Hovenden barrister atLaw  freeman de term paschae in curian porter