case incledon and other versus Northcote march see in re George Ch d if a  father marry a daughter without require a settlement though it may appear a  hardship yet the court can give no relief for it be establishednow that a  husband may dispose of a wife term or the trust of her term and prevent any  thing survive to the wife sir Henry Northcote in intermarry with the defendant  the only child of Mr Stafford at the time of the marriage both be under age  and therefore no jointure or settlement be make by the husband nor have he any  portion with the wife nor any article enter into but she be then entitle under  a settlement make atkins er p by her father on his marriage to pound to be  raise after his death by virtue of a term of year vest in trustee whereof sir  William drake be the survivor out of part of her father estate call the  Stafford estate and the defendant lady Northcote be also tenant in tail  expectant on the death of her father in land whereof her grandfather by the  mother side die seize call the Kelland estate Mr Stafford be seize of the  Stafford estate subject as to part to the term for raise pound mortgage part  of it to Thomas Troyte and other for year for secure pound in trust for sir  Thomas ackland then a infant and charge it atkins afterward with the further  sum of pound make together pound and before he pay any part of the principal  sum he die but by will devise this estate upon trust to be sell for payment of  debt and legacy and as to what remain unsold in trust for his daughter in tail  with remainder over Mr Stafford at his death be indebt in the sum of pound by  bind and otherwise over and above the pound secure by mortgage which with the  pound charge on the Stafford estate for the defendant portion exceed the value  of that estate whereupon the trustee under his will de line to act the  defendant and sir Henry Northcote at her request be desirous all her father  debt and legacy shall be satisfy do agree to subject the Kelland estate  together with the Stafford estate to the payment thereof and thereupon by  indenture of bargain and sale date the that of September and by fine levy by  sir Henry Northcote and the defendant of the Kelland estate both estate be by  the trustee in Mr Stafford will and by sir Henry Northcote the defendant  convey to sir Henry Northcote Francis Kirkham and the plaintiff and their heir  on trust by the profit or sale of both estate or any part thereof to raise  money sufficient to pay off the encumbrance on the Stafford estate and all  other debt and legacy of Mr Stafford in pursuance of the trust with money  arise by profit of the Kelland estate age of part and sale of several part of  this estate and of a small part of estate and by money advance by sir Henry  Northcote the trustee pay off pound part of the mortgage of pound and all the  other debt and legacy of Mr Stafford except the pound remainder of the  mortgagemoney and except a bind debt of pound to sir Henry Northcote and for  the better secure the pound residue of the principal and interest on the  mortgage by indenture date the that of June William Kirkham representative of  the survive trustee of the year term by the direction of sir Henry Northcote  together with the plaintiff c assign the trust term to Thomas Troyte and other  subject to redemption on payment of the pound and interest and sir Henry  Northcote do thereby extinguish the pound portion and Troyte and the other  mortgagee do assign the mortgage term on part of the mortgage premise free  from such mortgage upon trust for sir Henry Northcote the plaintiff incledon  and other and their heir upon trust as by the will of Mr Stafford and by the  same deed sir Henry Northcote the plaintiff c do in lieu thereof demise the  other part to Troyte and other the mortgagee for six hundred year subject to  redemption with the other land atkins comprise in the year term so assign to  Troyte g n payment of the pound mortgage money and interest afterward by a  common recovery in which sir Henry Northcote and his wife the defendant be  vouchees and by indenture of lease and release date the that and that of April  execute by they and the survive trustee such part of the Stafford estate as  remain unsold be settle as to a rend of S per and to sir Henry Northcote and  his heir and as to the rest of the estate of the value of pound to the use of  two trustee for year in trust for raise pound by mortgage or sale for  reimburse sir Henry Northcote the money he advance in payment of the debt and  legacy of Mr Stafford and subject to the term to the use of sir Henry  Northcote for life to the defendant for life remainder to their son in tail  remainder to their daughter in tail remainder to the survivor of they in fee  and such part of the Kelland estate as remain unsold and which be of the value  of pound be by lease and release date the that and that of July convey subject  to a mortgage for secure pound to the use of the same trustee in trust for sir  Henry Northcote and his heir that afterward by lease and release date the that  and saint of April the estate so in mortgage for pound be by the mortgagee and  sir Henry Northcote convey to the use of Robert Helyar Esq and his heir by  mortgage for pound which atkins er p be borrow by sir Henry Northcote in order  to discharge the pound then clue on the mortgage and the residue of the pound  be to supply some particular occasion of sir Henry and by he apply accord  except only pound thereof which remain with sir Henry in his house or seat at  pine at the time of his death sir Henry Northcote have by the deed of the that  of June extinguish the pound for his lady portion and be seize of such part of  the Kelland estate as remain unsold for payment of debt of Mr Stafford and be  entitle to pound to be raise by the term of year out of the Stafford estate  and be seize of several manor and land in Devonshire the inheritance of his  ancestor of the value of pound do make his will and a codicil date the same  day as follow I give all my estate real and personal unto Robert incledon and  other their heir executor c in trust as to so much of my personal estate as  shall be and remain on my seat at pine at my death that they shall suffer my  wife to use and atkins enjoy the same for so many year as she shall live and  as to my real estate and also the rest of my personal estate I devise it in  trust for payment of all my debt and subject thereunto for raise five thousand  pound for such child or child of my body issue as shall attain twentyone to be  pay to such child or child if but one but if more than one equal to be divide  between they then as to my real estate the same shall remain to the use of the  first and every other son and son of my body and the heir of the body of such  son and son and in default of such issue then to the use of the daughter and  daughter and in default of such issue then to the use of my wife for her life  and appoint incledon and other executor a codicil to be annex to my will item  my will be that the trustee within name do sell the Kelland estate and apply  the money arise from such sale to the discharge of the mortgage due thereon c  to Robert Helyar and after that be satisfy to apply such other money arise  from it to the discharge of the mortgage to sir Thomas ackland trustee on the  Stafford estate to the intent that the Stafford estate may be free and clear  to my dear wife and after the two mortgage be full pay my wife shall be  entitle to receive the rend of the overplus of the Kelland estate during her  life and after her death to go in strict settlement in the manner I have  settle my land in the body of my will sir Henry Northcote at his death have  issue live Stafford now sir Stafford Northcote his old son a infant and the  plaintiff Bridget maria Northcote Henry Hugh and Charles Northcote and be at  his death possess of a considerable personal estate consist among the rest of  chattel corn household good and plate at his seat call pine shall which be  part of the Stafford estate of the value of about twelve hundred pound over  and above the dress plate and jewel use by lady Northcote in his lifetime and  also over and above four hundred pound in cash remain at pine the defendant  lady Northcote insist that by virtue of the clause in the will of sir Henry  Northcote whereby the trustee be to permit her to use and enjoy for her life  so much of his personal estate as shall remain at pine at his death she be  entitle to the use not only of the good and plate then in sir Henry northcote  dwell house at pine but also to the use of the four hundred pound remain in  the house and of all the cattle sheep horse corn grain and live and dead stock  upon the farm of pine atkins and that she be entitle to her own use absolute  to many piece of plate ring diamond c as her paraphernalia and also insist she  be entitle to her dower of the Northcote estate it be insist on behalf of sir  Stafford Northcote the son of the testator sir Henry that the defendant lady  Northcote be not entitle to the use of the four hundred pound or any of the  dead or live stock on the farm at pine nor of any good plate or personal  estate at pine other than what be in the dwellinghouse or seat there and that  the plate and jewel claim as paraphernalia ought to be apply for the payment  of the debt of sir Henry Northcote in ease of his real estate and insist  likewise that lady Northcote have since the death of sir Henry Northcote enter  upon the Stafford and Kelland estate and become seize thereof for life by  virtue of the several conveyance will and codicil be thereby debar from all  right of dower of the Northcote estate and also insist that one five part of  the five thousand pound direct by the atkins er p will of sir Henry Northcote  to be raise for such child or child of his body as shall attain the age of  twentyone do belong to he in case he attain twentyone and that in the mean  time his brother and sister be not entitle to any interest for the five  thousand pound or any allowance out of the profit of the estate charge  therewith for maintenance and education that in regard of these difference and  doubt the trustee in sir Henry northcote will can safe execute the trust  without the direction of the court and therefore that a account may be take of  the personal estate devise to the trustee and apply towards the debt of sir  Henry Northcote and that the claim of dower by lady Northcote out of the  Northcote estate and the other dispute may be determine by the court and that  the plaintiff the young child of sir Henry Northcote may have a reasonable  allowance for their maintenance and education till their portion shall become  Payable be the end of the bill lady Northcote by her answer make another point  that as she have survive sir Henry Northcote the residue of the term of five  hundred year for raise the defendant portion shall be deem to be a security  for one four part only of the mortgage money and to sink no more than one four  part of the defendant portion of five thousand pound but that upon payment of  the five thousand pound to twyte and other by sale of atkins part of the  Kelland estate or part of the Stafford estate the residue of the term of five  hundred year shall be a security for raise the remain three part of the  defendant portion and the rather for that sir Henry Northcote by his will and  codicil have direct the mortgage of five thousand pound on the Stafford estate  to be discharge by sale of part of the Kelland estate to the intent that the  Stafford estate may be free and clear to the defendant Lord chancellor take a  week time to consider of the case and this day give judgement one question be  as lady Northcote have survive sir Henry Northcote whether the five thousand  pound have survive to her as a choose in action or whether it shall be  consider as part of her husband personal estate and I be of opinion it ought  to be take to be part of his personal estate the great objection be this that  no settlement be make upon her either on the marriage or since and she have  gain nothing out of sir Henry northcote family and therefore it be hard this  shall be take from her to be sure it be a matter of hardship but if her father  marry her without require a settlement the court can give no relief and she  may marry too in expectation of dower but I rely upon the act which have be do  by sir Henry Northcote and his lady and whether there have be a sufficient  disposition of the five hundred year term by sir Henry Northcote nothing be  clear since sir Edward turner case vern and Pitt versus hunt vern that a  husband may dispose of the wife term or the trust of her term and prevent any  thing survive to the wife vide Bates v Dandy ante atk vol the Stafford estate  come to sir Henry Northcote in the lifetime of lady Northcote subject to the  mortgage make by Mr Stafford for five thousand pound he have a right in any  shape to make it his own and have assign over this five hundred year term and  so have the trustee by his direction as a further security for the very sum it  have be object that if a husband raise money on the wife freehold and covenant  to pay it that his asset must be liable to exonerate the wife estate atkins  that be the rule but in what case why where he can affect the wife estate  without her join vide Parteriche v powlet ante atk vol and case there as where  he be but tenant by the courtesy or have only a interest in it for her life  but here it be his own and he can at any time during his life assign the term  but it do not rest here for the deed in which sir Henry Northcote and lady  Northcote have join have put this question quite out of all doubt for they  have suffer a common recovery and declare the use of it and that they intend  to make a new settlement of this Stafford estate and lady Northcote have the  trust of the term in her and come in by voucher she come in in privity of all  her interest both legal and equitable and therefore have bar herself of any  sort of claim whatsoever and consequent have no right to the five thousand  pound the next question be as to the defendant claim of dower out of the real  estate of atkins er p sir Henry Northcote she insist she have do nothing to  bar her of her dower in the estate sir Henry Northcote leave at the time of  his death I be of opinion she be entitle to dower see the case cite in the  note to Galton v Hancock ante atk vol for it will be very hard if no  settlement be make on her marriage and she be bar too of her five thousand  pound that she shall also lose her dower all he have give by his will to the  defendant lady Northcote be a specific legacy of personal estate at his seat  at pine and a remainder to her for life in his real estate in default of issue  male and female by himself lady Northcote insist not only on her dower but on  the benefit of such legacy likewise as be devise to her by the will it have be  object by the counsel for sir Stafford Northcote that the devise by the will  do in some measure clash with her claim of dower and be entire inconsistent  with it because the testator give her the very estate in remainder out of  which she demand her dower and therefore she must either take total under the  will or total reject it vide morris v burrow ante atk vol I do agree this have  be the general rule ever since the case of noise versus mordant vern which be  decree in Hilary term but the question be whether lady Northcote upon the  circumstance of the case be to be exclude and I be of opinion upon the  authority of Laurence versus Laurence vern she be not which be final determine  ten year after noise versus mordant and seem to I to be a case in atkins point  the decree be first make by Lord summer against the wife reverse by Lord  keeper wright and the decree of reversal affirm in the house of lord and  determine too by they upon the merit of the case in may for though Lord Cowper  say he will only enter upon the point relate to the account yet he certain be  not preclude from examine into the claim of dower likewise but it appear by a  note that I have of this case that the house of lord do not think themselves  confine to any particular part but decree upon the whole case this present  case stand distinguish from noise versus mordant upon the reason of the time  likewise for the claim there will have overturn the will in toto but lady  Northcote do not claim to overturn the will in toto but mere a temporary  interest and be only take out that excrescent interest for a time and  afterward it will go on as the testator intend it the three question be what  pass to lady Northcote by the word personal estate on my seat at pine for her  life it be insist by her counsel that she be entitle to all the household good  and furniture stock u n the ground and the four hundred pound in money in the  house at sir Henry northcote death but the counsel on the other side have say  it be to be take more strict and that it ought to be confine to the good in  the house and garden at pine only but this be too straight a construction as  to the four hundred pound I be of opinion it do not pass by this devise  Woolcomb v Woolcomb p W but see countess of aylesbury case cite Ves Popham v  lady Aylesbury Amb S c nor be within the meaning of the word it may as well  have pass choose in action vide chapman v heart Ves more v more bro Charles  Rep but I think that all the stock on the farm live and dead and all store on  the land hold in hand which be enjoy at pine for the use and accommodation of  the house and seat will pass to the wife for she be to reside there with her  child and be plain intend for her use in carry on the farm indeed it be say  for her life and therefore it be object she ought only to have the  usufructuary interest atkins but then all bequest of good for life be subject  to contingency reasonable wear and consumption and a inventory must be make of  they a four question be as to lady northcote paraphernalia and she must have  they in some shape or other but to be sure not to the prejudice of creditor  yet as here be a trust estate charge with payment of debt which be sufficient  for that purpose she may come round upon the trust estate to be reimburse to  the value of her paraphernalia if the personal have be exhaust by her husband  creditor and determine so in several case so Ridout v Plymouth ante atk vol  Boynton v Parkhurst bro Charles Rep say vide Probert v Clifford Amb ante vol S  c Cox p W SC vide ante atk atkins er p the last question be whether by the  devise of five thousand pound out of his estate equal to be divide between his  child with remainder in the same estate to his first and other son sir  Stafford Northcote the old son shall have a share it have be object that  though there be the general word child in the will yet it can be conceive that  he intend his old son by it for he be to take the estate itself and it will be  absurd that he shall provide for he out of the estate and yet give Mm the  estate but I be of opinion that the word be too strong to say that sir  Stafford Northcote be not a child and though the estate be give to he as the  first son yet it be give likewise to every other son and therefore it may as  well be say to take away the share of a second son the child have insist upon  interest on their share for their maintenance though the five thousand pound  be give to such child of his body as shall attain the age of twentyone and  consequent be not vest in the case of stranger whether the legacy be give  absolute and Payable at twentyone or not give until twentyone they can have no  interest in the mean time but in either of these devise where they be give to  child the court will direct interest for their portion immediate see heath v  very ante note and and it have be so do frequent it be insist that the young  child in regard that the old son be entitle to one share of the five thousand  pound ought to be allow interest at five per cent for their maintenance their  provision be so scanty Lord Hardwicke say at first atkins as no more have be  allow for many year than four per cent for maintenance he do not care to break  through the rule but afterward in consideration of the interest of money be  alter within these two year mortgage be then at four and a half and several at  five per cent his lordship order the child shall have four and a half per cent  interest upon their share of the five thousand pound Reg lib a fol