brown case walter bagenal appellant and bagenal widow and other respondent  saint march Mews dig ten a term be create for the purpose of raise out of the  yearly profit several sum for the maintenance and education of young child  until their portion become due and then upon trust for raise such sum of money  out of the estate not exceed pound as the father and mother or the survivor of  they shall appoint hold that this pound shall carry interest from the time  that it may have be raise out of the yearly rend and profit of the land and a  enquiry be direct in order to ascertain that time decree of the Irish chancery  reverse in part see note to case and and ante case bro p c after publication  the plaintiff file a supplemental bill and examine witness to prove matter  which be in issue in use original cause hold to be irregular and the  supplemental bill dismiss Eq ab c vin go c twelve c if there be no proof to  the new matter in the supplemental bill it must be dismiss vin c cite ms Tab  viner vol p note to can Eq can ab can Dudley bagenal esquire decease the  appellant father be seize in fee of the manor town and land of Dunleckny and  other manor and land in the county of Carlow in Ireland do in the month of may  upon his intermarriage with the respondent Ann in consideration of pound her  marriage portion convey the say manor and land to trustee to the use of  himself for life and afterward as to a considerable part thereof to the use of  the respondent Ann as a jointure for her life and as to all the estate after  their death to their issue male with several remainder over subject to a power  of revoke or alter the say use and remainder except the use limit to the  respondent Ann the marriage take effect and the say Dudley have issue by the  say Ann the appellant their old son Nicholas George and Dudley bagenal junior  and Ann Helen Catherine and mary bagenal on the intermarriage of Ann his old  daughter with sir gervas Clifton bart it be by article date the that of June  agree that the say Dudley shall pay sir gervas pound as a portion videlicet  pound immediate which be accord pay pound more to be secure by mortgage of the  say Dudley estate and the remain pound on a contingency which never happen  Dudley bagenal afterward by deed of lease and release date the that and that  of October convey all his estate to trustee and their heir to his own use  during his life and afterward as to the say jointure land with a additional  jointure to the respondent Ann for her life and as to all the rest of the  estate after the say dudley death and as to the say jointure after the death  of his wife to the use of Walter butler and Patrick colclough other trustee  for year upon the trust therein mention with remainder to the appellant for  life remainder to his first and every other son in tail male with several  remainder over and with a power for those in remainder to make lease for any  term not exceed year at the full improve rend and without take any fine the  term of year be brown declare to be upon trust that the trustee and the  survivor of they his executor administrator and assign shall out of the yearly  profit of the estate raise and pay several yearly sum for the maintenance and  education of the say child until their portion become due and then upon  further trust for the raise such sum and sum of money out of the estate not  exceed pound as the say Dudley bagenal and Ann his wife or the survivor of  they shall limit and appoint which power be intend and reserve for pay the  pound agree to be pay to sir gervas Clifton and to be secure by mortgage of  the estate as aforesaid and for no other purpose and it be also agree that the  trustee or the survivor of they his executor administrator or assign shall  mortgage lease set over or assign the say estate for all or any part of the  say term for raise the sum of pound for the portion of the say young child and  the say Dudley and Ann his wife or the survivor of they shall appoint brown er  p Mr bagenal in pursuance of the marriage article of June do in or or at some  other time after the year execute a deed which be make to bear date the that  of October and thereby bargain and sell unto sir gervas Clifton all the say  dudley estate for year upon condition to be void on payment to sir gervas of  pound in a month after he shall settle pound per and jointure on his wife and  which deed be intend as a execution of the power reserve in the settlement of  the that of October for raise the say sum of pound as aforesaid the say Dudley  bagenal be afterward attaint of high treason on account of the rebellion in  and all his estate become thereby forfeit and vest in king William and queen  mary whereupon sir gervas Clifton present a petition to their majesty for  relief as to the say pound and interest and obtain a order for refer the  matter to the attorneygeneral who in the year make a report that his case be  very compassionate and the then lord deputy of Ireland have signify to the  lord of the council in England that he agree with the say report sir gervas  and the respondent Ann who be very active in manage this matter thereupon  procure a order to receive some money and do accord receive some money out of  the say forfeit estate but the most part of the pound still remain due and the  estate be by act of parliament vest in the trustee for sale of the Irish  forfeiture whereby sir Gervass order for receive the money become of no effect  and the appellant be Willing to make sir gervas what satisfaction he can  towards the same certain article be on the d of June enter into between the  respondent Ann of the first part the appellant of the second part and sir  gervas Clifton of the three part recite the article of the that of June that  sir gervas have settle the say jointure of pound per and on his wife and that  it be doubtful whether he can in law or equity by virtue of the article only  charge the say dudley forfeit estate for life brown with the say pound and  also recite that the say Dudley make the settlement of his estate in October  with a power for he and his wife or the survivor of they to charge the same  with a sum not exceed pound and further recite that during the say dudley life  by his attainder they become incapable of execute the say power but that if  the say Ann survive she may charge the say sum on the estate for the benefit  of the say sir gervas and that the say Ann and the appellant think themselves  oblige to do what they can to secure the say pound or part thereof and in  consideration of S pay her pursuant to a agreement make between her and the  appellant the respondent Ann thereby agree that if she shall survive the say  Dudley she will within a month after his death charge the term of year with  the say pound as require by sir gervas and for his use or with so much thereof  as shall be then deficient without interest and the appellant do thereby also  agree that if though say Ann shall die before Dudley so that the say pound can  not be charge for sir gervas that then the appellant will secure the sum of  pound to sir gervas as council shall direct and in case the respondent Ann  shall live and charge the estate with the say pound that sir gervas shall give  four year for the payment thereof without interest but if he shall recover the  pound out of the say dudley forfeit estate then this agreement be to be void  the appellant claim his remainder in the estate under the aforesaid settlement  before the trustee of Irish forfeiture and be decree to the same accord the  respondent Ann also claim and be allow her jointure and the say Nicholas  George Dudley and Helen be then all minor by their guardian claim and be allow  their interest in the premise and John butler executor of Walter butler the  survive trustee of the year term claim and be decree to the same sir gervas  Clifton also be allow his claim to the pound and afterward receive the same  out of the estate during the life of Mr bagenal the father in full  satisfaction of the pound wherewith the estate or the term be Chargeable the  say Dudley bagenal and the respondent Ann his wife by deed date in December  apportion the pound in manner follow videlicet to Helen then marry to sir John  hale the sum of pound to dame Ann wife of the say sir gervas be provide for  before pound to mary and Catherine pound each to Nicholas and George pound  apiece and to Dudley junior pound brown er p the forfeit estate for life of  Dudley bagenal continue in the trustee of forfeiture and their purchaser till  his death which happen in July before which time all his child arrive to their  respective age of and all their portion be then Payable and the appellant  thereupon become entitle to all the estate except what be limit to the  respondent Ann for her jointure sir John hale and his wife and George bagenal  press for payment of their portion the appellant procure Thomas brown Acton  esquire to advance and pay they the same upon the appellant join in a  conveyance of their share and interest in the pound and the year term but the  respondent Nicholas have be find a lunatic and the care of he commit to the  appellant he maintain he for the space of fourteen year and expend therein and  in endeavour his cure the sum of pound the appellant also pay his sister mary  and Catherine their several portion of pound each the appellant be Willing to  have all these portion raise and pay endeavour so to do by make lease of part  of his estate out of the say term of year at the same rend which the tenant  then actual pay upon lease make about six year before and by sell the surplus  advance rend at or year purchase and he accord make agreement with some of the  tenant for that purpose and request John butler as the representative of the  survive trustee of the say term to join and concur with he in those measure  but butler colluding with the respondent Ann not only refuse so to do but  bring a ejectment for recovery of the appellant estate by virtue of the term  and in Michaelmas term judgement be obtain thereon and possession take from  the appellant accord soon afterward butler assign over the term and his trust  to the respondent Benjamin Burton who also refuse to execute the trust by  raise the portion accord to the direction of the settlement of but continue in  the receipt of the rend and profit of the estate on the that of April the  respondent Ann Nicholas and Dudley bagenal together with Philip savage esquire  prefer their bill in the court of chancery in Ireland against the appellant  and the respondent Burton the respondent Ann and the say savage thereby pray  to be decree the sum of pound and interest out of the appellant estate allege  that the respondent Ann have charge the same by deed of the that of February  to be pay to the say Philip savage accord to the power in the settlement of  for that purpose and the respondent Nicholas and Dudley pray to be decree  their say several portion the appellant by his answer to this bill declare his  willingness that his brother and sister portion shall be raise and pay accord  to the settlement but as to the pound allege to be charge for the benefit of  the respondent Ann the appellant insist that she be not entitle thereto that  money have be intend for sir gervas Clifton and he have receive the same out  of dudley forfeit estate as aforesaid and the respondent Burton also answer  and admit the trust term to have be assign to he on the that of may follow the  appellant prefer his cross bill against the respondent and other to compel the  respondent Burton to join in make the lease out of the say term or otherwise  by mean thereof to raise the say sum of pound for the portion and for relief  against the respondent Ann demand brown both cause be at issue and witness  examine be hear before the Lord chancellor of Ireland on the that of may when  his lordship be please to decree the payment of the say pound with interest  from the date of the deed by which the same be charge on the say estate and  that the respondent Nicholas and Dudley bagenal shall have their portion with  interest from the death of their far soon after this decree the appellant by  chance find one part of the article of the d of June in London and send the  same forthwith to Ireland and thereupon a order be obtain for rehear the cause  and on the that of June the appellant exhibit a supplemental bill set forth  the say article and pray a discovery of the same and the benefit thereof in  the say cause the respondent Ann put in her answer to this bill and thereby  deny that she ever execute the article but insist that if she have they can be  no bar against charge the say pound brown er p on the that of June follow both  cause be reheard before the Lord chancellor assist by the Lord chief justice  Whitshead the Lord chief justice foster and the Lord chief baron Gilbert when  the respondent Ann last answer be read and the court not be satisfy therewith  she be examine viva voice in open court and still deny the execution of the  article whereupon the court be please to order and decree that the say Philip  savage shall have and recover accord to the deed make by the respondent Ann  for that purpose the sum of pound out of the rend and profit of the trust land  and that the respondent Dudley and Nicholas shall likewise have and recover  out of the say land their respective portion with interest for the same at  pound per cent per and from the death of the say Dudley bagenal senior and it  be refer to a master to state the account and it be order that the respondent  Ann shall have a allowance for what she have expend in law suit for recovery  of the say trust land and the say sum of money decree thereout and in execute  the say trust together with the cost of these cause both party be to have all  just allowance and on return of the report the court will consider from what  time the pound shall carry interest some time afterward the subscribe witness  to the article of the d of June be examine for the appellant full prove the  execution thereof by the respondent Ann and the other party and the appellant  come to the knowledge of the deed of the that of October though real make  several yearly afterward for secure the pound and of the several proceed of  sir gervas and the respondent Ann in relation to that sum he on the saint of  July prefer a further supplemental bill against the respondent Ann sir gervas  Clifton and other set forth these several matter and pray a discovery of the  same and relief in the mean time the say Philip savage die and a order be make  for revive the cause on that occasion the master on brown the d of may make  his report and thereby compute pound as due to the respondent Ann and also a  considerable sum for cost relate to the trust he also compute the portion of  the respondent Nicholas and Dudley with interest from the death of their  father and report several sum to have be receive by the respondent Burton out  of the appellant estate and several sum by he pay to the respondent Ann on  account of her say demand and of the portion of the respondent Nicholas and  Dudley to this report the appellant take several exception for that the master  have omit to certify the portion of all the child and what they have receive  on account thereof and have allow the respondent Ann the sum of pound for cost  and for that he have omit to charge the respondent Burton with the whole rend  he receive out of the estate and have omit to give the appellant credit for  several sum which he have expend in the support and endeavour the cure of the  respondent Nicholas on the that of February the cause as well on this report  as on the appellant supplemental bill be hear before the Lord chancellor when  his lordship be please to overrule the appellant exception and on the next day  his lordship be please to refuse to allow the read of the say article of the d  of June and also refuse to admit the appellant proof of the execution of they  and of the aforesaid matter and proceed to be read and will not enter into the  merit of the appellant case but order the appellant say bill to be dismiss  with cost from all these decree the appellant appeal insist c Wearg I rocha  that the power in the settlement of the that of October for raise pound be  intend and reserve by Dudley bagenal sen for the satisfy sir gervas Clifton  the pound agree to be pay he by the article on his intermarriage in and to be  secure by mortgage of Mr Bagenals estate in Ireland that this intention be  further manifest not only from the deed make some year after the settlement of  October though appear to bear date the day next before the day of the date  thereof by which Mr bagenal raise a term of year in his estate for payment of  pound to sir gervas but also from the article of the d of June and it be  apprehend that the deed so antedate ought to be construe in equity as it full  execution of the power contain in the settlement of October that sir gervas  have recover and receive this pound out of the estate the respond brown er p  ent Ann ought not to have execute the power over again or to have receive the  money out of the estate a second time for her own benefit and if the pound be  to be charge on the appellant estate the same ought not to have carry interest  as decree it be to be raise out of the rend issue and profit that the  respondent Burton ought not to have apply all the rend brown of the appellant  estate to the payment of the young child portion while the appellant can not  receive a penny thereout for his own support but the court ought to have  decree Burton to have raise the pound for these portion by lease sell mortgage  or assign the trust term or part thereof accord to the direction of the  settlement of October for that purpose that the several exception take by the  appellant to the master report ought to have be allow and the court ought also  to have admit the say deed and article and the appellant say proof to have be  read that by the decree of the that of June the say sum of pound be order to  be pay to the say Philip savage who soon afterward die the say several suit  ought to have be revive against his representative and the master ought to  have proceed on the account nor shall the court have make any further decree  in the cause without the representative of savage be make party it be  therefore hope that the say several decree and proceed will be reverse and the  appellant say deed article and proof admit to be read on the other side it be  argue p York c Talbot that the respondent Ann have survive the say Dudley  bagenal her husband have full and absolute power by virtue of the say  settlement of October to limit or appoint any sum of money not exceed pound to  be raise and pay accord to such limitation or appointment out of the rend and  profit of the trust estate and have by deed in limit and appoint the same to  be pay to Philip savage it become thereby a proper charge on the say land and  a due execution of the power in the say settlement that this power to raise  pound be not intend for raise the pound due to sir gervas Clifton by his  marriage article as the appellant will suggest nor express so to be for it  appear by the appellant own show that the pound to be pay by those article to  sir gervas be to be pay within one month next after he shall have appoint to  his wife land of the yearly value of pound and which appointment be accord  make in July after sir gervas come of age but the year term on which the  respondent Ann have power to raise the pound be only to commence upon the  death of her husband which do not happen till the year that sir gervas Clifton  claim before the trustee of the forfeit estate the pound due to he by virtue  of his marriage article only and the same be accord decree to he the  respondent Ann also claim before the trustee the power of charge the trust  estate with pound and the same be likewise decree to her which claim and  decree be not only several and distinct and have no relation to each other but  show that these two sum of pound be also several sum of money that the pretend  article of the d of June suppose the respondent Ann to have actual execute  they can not take from her any right which she may have to charge the say  pound because it appear by the appellant own show brown that the provision in  those article be contingent and to take place only in case sir gervas do not  recover pound on his marriage article and he be decree to this pound by the  trustee the article of June become by a express clause therein utter void  beside sir gervas have receive the say pound before the death of Dudley  bagenal and consequent before the appellant become entitle to his remainder  and before the respondent Ann have any power to charge the say pound these  article of be only make use of by the appellant as a pretence to put the  respondent Ann to great expense and trouble on so many bill hear and  rehearings that these article be in issue in the original cause but not prove  therein and therefore after publication and a hear it be irregular in the  appellant to examine witness to the proof of the article especial upon a bill  of discovery only but as the appellant have examine the same witness on his  supplemental bill to the proof of the article and be allow to read the same  and all the other proof take in the cause he have no just ground of complaint  that his proof be not admit to be read and have offer no proof in support of  any new matter allege in his say supplemental bill it be but just that the  same shall be dismiss with cost brown er p but after hear counsel on this  appeal it be order and adjudge that the decree of the that of June shall be  affirm save that part thereof which direct that the respondent Ann shall have  a allowance for what she have expend in law suit which direction be reverse  and it be further order and adjudge that so much of the order of the that of  February as overrule the appellant three exception and direct the interest of  the pound to be compute from the date of the deed of the that of February  shall be reverse and it be further order that the court of chancery shall  cause a account to be take from what time the say pound may have be raise out  of the yearly rend and profit of the land and that from that time the say  pound shall be Payable with interest and that so much of the money as have be  already pay to the respondent Ann shall in the first place go towards  discharge the interest and the surplus towards the discharge of the principal  money and so much as remain unpay of the say principal and interest shall be  pay to her by the respondent Burton out of the money in his hand and it be  likewise further order and declare that the pound to be raise for the young  child of the respondent Ann and her decease husband Dudley bagenal be to be  raise by mortgage or sale land that the appellant out of the profit of the  land subject to the say portion by he receive be to be Accountable for no more  than be sufficient to keep down the interest of the say portion and that what  remain due to the say child for principal money and interest shall be raise by  mortgage or sale and it be further order and adjudge that the court of  chancery shall cause a account to be take of what be due to the brown  respondent Nicholas and Dudley bagenal for the interest of their portion  respective and that what remain due to they respective for such interest shall  be first pay by the appellant out of the rend and profit of the land by he  receive deduct all reasonable allowance for money expend by he on account of  the estate or of the say Nicholas and Dudley respective and that what yet  remain due for principal and interest shall be pay by the respondent Burton as  far as the money in his hand will extend and if that be not sufficient the  residue shall be raise by mortgage or sale of the land and that all other part  of the order decree and proceed complain of which vary from or be inconsistent  with the direction now give shall be reverse but that the same as to all other  part thereof shall be affirm and it be further order that the say court of  chancery shall give such proper direction for the better execution of this  judgement as shall be just jour vol p