case sir John RUSHOUT appellant Elizabeth RUSHOUT respondent that February  Mews dig ten land charge with a portion afterward descend to the party entitle  to the portion but this be no extinguishment of the charge although the value  of the land great exceed the amount of the portion decree of ld Cowper c  affirm the point of this case be thus state in Eq ab c and vin c part of land  charge with pound portion be devise to the party to who the portion be Payable  although the land devise be more than the portion yet it be no extinguishment  of the charge in vin c a collateral point be thus short state chattel lease  can be entail and cite ms Tab viner vol can Eq ab can sir James Rushout father  of the appellant and grandfather of the respondent in consideration of a  marriage between he and Alice palmer and of her marriage portion by lease and  release date the that and that of September convey to sir George Benyon and  other trustee and their heir among other land the manor of Maynards in Essex  and of Upperswell alias overswell in Gloucestershire and of stone in  Worcestershire to the use of himself for his life remainder to trustee brown  er p to preserve contingent remainder remainder to the use of the say Alice  for her life for her jointure remainder to the use of the first and other son  of the marriage in tail male successive remainder to the use of the right heir  of sir James with a power reserve to sir James to revoke all the use of this  settlement except the estate for life of the say Alice his wife the marriage  take effect and sir James have issue by dame Alice his wife three son namely  James the respondent father brown the appellant sir John and George who die  without issue and three daughter Elizabeth afterward marry to sir George  Thorold Alice marry to Edwyn Sandys esquire and Catherine marry to Samuel Pitt  esquire on the d of October sir James Rushout make his will wherein take  notice of the settlement and of his wife jointure and that she have release  the same and in lieu thereof have accept of a annuity of pound per and for her  life he by his will confirm the say settlement upon his son subject to the say  annuity and appoint that the manor and premise comprise in his settlement  together with the manor and rectory of harrow in Middlesex subject to the say  annuity shall be a provision for his old son till his age of and he devise to  his executor and the survivor of they and his heir his manor of Northwick  north and middle Littleton in Worcestershire and Egarton and swingfield in ken  and all other his land in those two county not before settle in trust that  they shall receive the rend thereof until some son of his shall attain the age  of and apply the same and the proceed thereof for the payment of the testator  debt and legacy and the surplus to be lie out for the benefit of his old son  and heir he then devise his land in north and middle Littleton subject to the  trust aforesaid to his executor and the survivor of they and his heir in trust  that they shall out of the rend and profit thereof raise pound per and for his  young son John and George equal for their life from their respective age of  but if it shall be think for their advantage to turn the say annuity into  money then his old son shall pay they pound in lieu of each pound per and and  he devise his say manor of Northwick and north and middle Littleton and all  other his land in Blockley and Hampton subject to the charge in his will to  his old son James afterward sir James Rushout for life without impeachment of  waste remainder to his first and other son in tail male successive remainder  to the appellant sir John the testator second son for life remainder to the  appellant first and other son in tail male successive remainder to the  testator son George for life remainder to his first and other son in tail male  successive with diverse remainder over and he devise his manor of Egarton and  swingfield and all other his land in ken to his executor in trust that they  shall sell the same and out of the purchase money pay all his debt and legacy  which his personal estate and his land before appoint for a term of year shall  not be sufficient to pay and after such debt and legacy be pay or secure the  surplus together with the grow profit of all his estate appoint for the  maintenance of his old son and all other money and proceed whatsoever shall by  his executor be lie out in the purchase of land of inheritance or copyhold or  leasehold estate hold of any bishop or dean and chapter lie in or near  Blockley or any other of his estate in the name and for the use of such old  son as shall be live at the time of such brown purchase and the heir male of  his body remainder to his daughter Elizabeth for life remainder to her first  and every other son in tail male successive remainder over to his own right  heir and the testator give to his son John and George pound apiece over and  above pound apiece which have be give they by a deed date the that of October  Payable at and he give to his daughter Elizabeth pound to be pay at her age of  or marriage and make sir Rushout cologne and Richard freeman esquire executor  the testator on the that of February make a codicil to his will whereby among  other thing he will that all his lease land in Blockley in Worcestershire  shall go along with his manor of Northwick and free land there and attend the  limitation thereof so far as by law they may subject to the payment of his  debt and legacy and such other charge and contingency as Northwick be subject  to by the will and codicil and take notice that he have by his will devise his  land in ken to his executor to be sell and the surplus money after debt and  legacy brown er p pay together with the grow profit to be employ for the  purpose therein mention he do by the say codicil direct that such estate so to  be purchase shall be purchase in the name and to the use of his son James and  the heir male of his body remainder to his son John and the heir male of his  body remainder to his son George and the heir male of his body remainder to  his daughter Elizabeth for life and with such remainder over as be mention in  his will and he give to his say son John and George pound apiece more than the  pound apiece give they by his will the testator soon afterward die leave such  issue as aforesaid and thereupon the executor prove his will and codicil sir  James Rushout the testator old son in consideration of a marriage between he  and Arabella the daughter of sir Thomas Vernon and of pound portion by lease  and release date the that and that of January and by a common recovery convey  the manor of Maylards overswell and stone and all the land thereto belong to  the use of himself for year if he shall so long live without impeachment of  waste remainder to trustee to support the contingent remainder remainder to  the use of the say Arabella for her life for her jointure remainder to the use  of sir Thomas Vernon and sir Rushout cologne for year for raise such portion  for the young child of that marriage as the say sir James Rushout shall  appoint not exceed pound remainder to the use of the first and other son of  sir James by the say Arabella in tail male successive remainder to the use of  Thomas Vernon and Richard freeman for year upon the trust after express  remainder to the use of the right heir of sir James Rushout and it be thereby  declare that the say term of year be upon trust that the trustee shall out of  the rend and profit of the premise or by lease or mortgage thereof raise and  pay the several sum follow videlicet in case brown sir James shall have issue  by Arabella one or more daughter and no issue male or if his issue male shall  die without issue before the age of that then the trustee shall raise pound  for such daughter if but one and if more than one then pound to be divide  between they to be pay at or marriage and pound per and for maintenance in the  mean time if but one daughter and if more than one then pound per and between  they the manor of Egarton in ken be afterward sell towards payment of sir  James the father debt and sir James the son suffer a common recovery of the  manor of harrow and declare the use thereof to himself in fee on the that of  November sir James the son make his will and thereby devise the manor of  harrow and all the land and hereditament thereto belong to sir Rushout cologne  Thomas Vernon and Richard freeman who he make executor for year upon the trust  after express remainder to his son James the respondent brother in tail male  remainder to his the testator brother sir John the appellant in tail male  remainder to his brother George in tail male remainder to his own right heir  the trust of the year term be declare in the word follow videlicet and as to  the term of year limit of the say manor and premise my will be and I do  declare that the same be and shall be in trust and to the intent that my say  executor and the survivor of they and the executor administrator and assign of  such survivor shall out of the rend issue and profit of the say manor and the  land tenement and hereditament thereunto belong or by lease or demising the  same or any part thereof or by mortgage the whole or any part thereof or by  all or any or such of the say way or mean or otherwise as shall be needful and  expedient raise and pay such portion and maintenance to and for my daughter  Elizabeth Rushout as be hereinafter limit and appoint that be to say the sum  of pound which I give my say daughter for her portion to be pay her when she  shall attain the age of year or be marry which shall first happen and if my  say daughter shall happen to die before her say portion shall become due and  Payable accord to the limitation hereinbefore in that behalf express that then  and in such case the say pound shall not be raise but shall cease or remain  and belong to such person and person as shall be entitle to the reversion and  inheritance of the say premise expectant upon the say term of year by virtue  of the limitation aforesaid and upon this further trust that the say trustee  shall by all or any of the say way or mean raise and pay to and for my say  daughter for her maintenance the brown er p sum of pound per and at two usual  day or time of payment in the year that be to say the feast of the  annunciation of our bless lady saint mary the virgin and the feast of saint  Michael the Archangel by brown equal portion without any defalcation or  abatement until she arrive to the age of year and from and after her age of  year the sum of pound per and until she arrive to the age of year and from  thence until her portion shall be due and Payable the sum of pound per and in  manner aforesaid and without any defalcation or abatement whatsoever the first  of such payment to begin and be make on the first of the beforementioned feast  that shall next happen after my decease provide always and my will and meaning  be that if my say son James Rushout or such other person or person to who the  freehold or inheritance of the say manor land and premise shall appertain by  virtue of the limitation aforesaid shall pay or cause to be pay unto my say  daughter the say sum of pound when she shall come to the age of year or be  marry which shall first happen and shall also pay the say several sum for the  maintenance of my say daughter in the mean time and until her say portion  shall become Payable as aforesaid that then and from thenceforth the say term  of year limit to my say executor shall cease determine and be utter void to  all intent and purpose whatsoever provide further that if my say daughter  shall at any time hereafter legal demand and insist upon any portion or sum of  money to be pay to her by mean or by virtue of any deed of settlement make by  I on the intermarriage of her mother my dear belove wife now decease the  content of which settlement I may have forget and by reason of my present  illness can immediate refer to that then my say daughter shall have no benefit  by this my will it be my true intent and meaning that she shall have the say  sum of pound to her portion and no more on the d of December the testator make  a codicil to his will wherein he take notice of his devise of the manor of  harrow to his executor for year upon trust for the raise and pay to his  daughter for her portion pound at such time as therein mention and from and  after the determination of that term to his son James in tail male with such  other remainder over as in the will be mention and then by this codicil he  express himself as follow videlicet now I the say James Rushout be of sound  mind memory and understanding praise be almighty God do upon more deliberate  think and consideration add this by way of codicil to my say will which shall  be take as part thereof and do hereby declare and appoint that if my say son  shall happen to die before he come to the age of year without leave issue male  of his body lawful beget that then and in such case the trust of the term of  year limit to my say executor as aforesaid shall likewise be for raise and pay  my say daughter the sum of pound above and beside the say sum of pound which I  have give and devise to her in and by my say will and to be pay in like manner  brown the say sir James Rushout soon afterward die leave issue sir James his  only son and the respondent Elizabeth his only daughter and on the saint of  September sir James the son die a infant without issue and intestate leave the  respondent his sister and heir who thereupon become seize in fee in possession  of the manor of Maylards overswell and stone and be heir general both of her  brother father and grandfather she also become entitle to all such real estate  as they die seize of in fee but the manor and land of harrow come to the  appellant under the limitation of his say brother will the respondent in  easter term and during her infancy exhibit her bill in chancery against the  appellant and the executor of her father and grandfather and other to have a  account of the several trust estate create by the will of her grandfather and  of the personal estate of her say brother father and grandfather and for the  recovery of the leasehold estate in Blockley and to ascertain her portion and  the legacy to which she be entitle under her father settlement will and  codicil and for the arrear of her maintenance to which bill the appellant have  put in his answer afterward exhibit a cross bill against the respondent and  other insist that the respondent be only entitle to one sum of pound and that  the appellant estate ought not to be charge with the payment of any of the say  sum of pound pound and pound on the that of April both cause be hear together  before the Lord chancellor Cowper when his lordship declare that the  respondent be not brown er p entitle to pound by the settlement of her father  and also to the pound and pound by his will and codicil and be of opinion that  the descent to her of the three manor of Maylards overswell and stone on which  the say pound be charge by the settlement be no extinguishment of the  contingent sum of pound by the settlement or of the pound and pound give by  the will and codicil and that the say pound and pound give by the will and  codicil be only to be extinguish by the respondent make her election when she  come to the age of whether she will choose the first pound by the settlement  or the pound and pound give her by the will and codicil Payable at her age of  or marriage but if she shall elect to take the pound by the settlement she  ought not to have the pound and pound by the will and codicil or either of  those sum and if she shall elect to take the say pound and pound by the will  and codicil in that case his lordship declare that the pound be not extinguish  by the descent to her of the say three manor which be charge with the pound by  the settlement as to the provision of maintenance for the respondent make by  the will his lordship declare that the same be Payable yearly and at different  rate accord to the age of the respondent do not depend upon the same  contingency but be mean by the will and codicil to be vest in the devisee for  maintenance till the contingency happen and that brown therefore the same  ought to be apply accord to the will and codicil with respect to the  respondent attain her several age therein express and do order and decree the  same accord and it be refer to the master to take a account of the rend and  profit of the real estate during the life of sir James the respondent brother  and of his personal estate and also of the personal estate of his father  devise to he and to the end it may appear what be such personal estate of the  father the master be to take a account of the rend and profit of the trust  estate until sir James the father attain his age of and to see whether sir  James the father waste any of the personal estate of sir James the grandfather  which be by he devise to sir James the father for payment of his brother and  sister portion if the master shall find that sir James the father misapply the  personal estate of his father or the rend and profit of the trust estate by he  receive till his age of then the personal estate of sir James the father be in  the first place to go to make good such misapplication his lordship declare  that the respondent be entitle to no more of the personal estate of sir James  the father than will be afterward remain and that such personal estate so  remain do belong to the respondent and if the personal estate of sir James the  father shall not be sufficient to make good such misapplication then it be  decree that the year term in the premise at harrow shall be apply to make good  the deficiency and sir James the brother of the respondent be tenant in tail  his lordship declare that the chattel lease do belong to he and be part of his  personal estate and if there be any lease for life or descendible freehold  lease which have be take instead of such lease for year they ought to go as  the lease for year and be also part of the personal estate of sir James the  respondent brother but if there be any descendible freehold lease of which sir  James the grandfather be seize at the time of make his will his lordship  declare that they belong to the appellant as tenant in tail and order that the  master shall look into the lease and see to who they do belong and it be  decree that the party who have receive the rend and profit of the three manor  which be descend to the respondent shall account before the master to her for  the same and the executor be also to account for such part of the personal  estate as they have receive and what upon the account shall be find come to  the respondent over and above what shall be allow for her maintenance be to be  bring before the master to be by he put out at interest from time to time on  good government or other security for the benefit of the respondent and the  master be to tax all party their cost which be to be pay they out of the say  estate the respondent have attain her age of do by a write under her hand date  the that of July in pursuance of the decree elect to take the pound and pound  give and devise to brown her by the will and codicil of sir James Rushout her  father and upon the same day this write be leave with the appellant the  respondent have attain and be about to carry this decree into execution the  appellant think proper to appeal from it insist t Lutwyche brown er p c Talbot  that she be not entitle to nor be it design that she shall have any more than  one sum of pound and for which she have receive satisfaction by have the three  manor of Maylards overswell and stone which be charge therewith and be of the  yearly value of pound that the respondent have a large maintenance out of  these manor than be provide for her by her father will the appellant ought not  to have be decree to pay or allow any maintenance to her out of the manor of  harrow that the chattel lease be by the decree declare to belong to the  respondent brother and to be consider as part of his personal estate whereas  by the will and codicil of sir James the grandfather these leasehold estate be  direct to go along with his manor of Northwick and free land there and attend  the limitation thereof so far as by law they may and therefore they ought to  have be settle in such manner as that the appellant may have the benefit  thereof that there be no direction give by the decree touch the sale of the  manor and land in ken or the money arise by such sale whereas that money ought  to have be apply accord to the will and codicil of the appellant father and  therefore it be hope that the decree will be reverse and such direction give  as be agreeable to equity and justice to this it be answer p York W peer  William on the other side that as sir James Rushout the respondent father  after suffer a recovery of the manor of harrow be seize thereof in fee and  have a absolute power to charge it in such manner as he think fit so he have  accord by his will and codicil charge this manor with the payment of the say  several sum of pound and pound to the respondent at her age of or marriage and  have thereby transfer the charge of pound from the three manor comprise in his  marriage settlement to the say manor of harrow devise by his will that with  the term of this will and also of the decree the respondent have comply by  make her election in the manner before mention and the appellant have no  reason to complain of the respondent father for make this will since if he  have make no will the respondent as the heir at law of heir say father and  brother and not the appellant will have be entitle to the feesimple and  inheritance of the say manor of harrow that the respondent father have by the  express word of his codicil charge the year term in this manor with the more  effectual and further secure the payment of all such legacy as be give to his  brother John and George and his sister Elizabeth by his father will and in  conformity thereto the decree have go no further than to charge the say term  in harrow with the deficiency of the trust and personal estate of sir James  the grandfather brown so far only as to make good the payment of those legacy  nor do the respondent insist upon any more under that part of the decree that  all the leasehold estate be for year be devise by the will of sir James the  grandfather in trust to attend the manor of Northwick and the limitation  thereof so far as by law they may and sir James the grandson become entitle to  a estate tail in this manor of Northwick he thereby become entitle to the  absolute estate and interest in all these lease for year for they can not by  the rule of law or equity bear any limitation over after a estate tail because  it will introduce the inconvenience of a perpetuity which neither law or  equity ever tolerate that it be conceive not to be proper for the court of  chancery to give any direction for the sale of the manor and land in ken or  touch the application of the surplus money to be raise by such sale until the  account direct by the decree of the rend and profit of the trust estate and of  the personal estate of sir James the grandfather and the misapplication of sir  James the father and of his personal estate liable to make good the same be  take in regard it can not till then be know how much of the land in ken will  he necessary to be sell or what the surplus money will amount to after hear  counsel on this appeal it be order and adjudge that the decree complain of  shall be affirm nevertheless it be declare that either party shall be at  liberty to apply to the court of chancery touch the sale of the manor of  Egarton and Swinfield in the county of ken and other the land in the say  county of the late sir James Rushout and likewise touch the money arise by  such sale and by the rend and profit thereof jour vol p brown er p