case honourable james bertie and Elizabeth his wife appellant lucuis henry  viscount Falkland and other respondent d march see Mews dig three xv appellant  make this case that appellant Elizabeth be daughter and heir of George Lord  Willoughby and niece and sole heir of John caryi who her parent die in her  childhood take her to his house breed her tender and always declare her as his  heir but be just jealous of the growth of popery in the last reign and fear  she may marry a papist engage in a treaty with the late Lord Guilford a know  protestant for marry her to the now Lord Guilford and both be infant caryi  mean to oblige her to consent to such marriage and therefore about a month  before he die alter his will and devise his estate to sir William Whitlock and  other in Colles trust after his debt pay for his niece the appellant Elizabeth  in case she shall within three year after his death be marry to the then Lord  Guilford accord to the form of the church of England for her life remainder to  her son by say Lord in tail male and for want of such issue or in case the  marriage shall not take effect within say three year immediate after either of  say contingency in trust for the late Lord Falkland for life afterward for his  son successive in tail male with other remainder over and make sir William  Whitlock Roger north esquire uncle to Lord Guilford and Simon smyth esquire  executor and in about ten day after by a codicil declare if such marriage take  effect within their age of consent it shall be as none unless afterward ratify  and desire the lady wiseman sister to the late and aunt to the now Lord  Guilford to have the education of her say niece and die leave appellant  Elizabeth about twelve year old Lord Guilford be then somewhat young Elizabeth  immediate on testator death accord to the will go to reside with the lady  wiseman then countess of Yarmouth and in December by her trustee prefer her  bill to have the countess take the guardianship and for a maintenance and the  countess by her answer accept the trust and that December appellant Elizabeth  in answer to a proposition of marriage send her by Lord Guilford trustee  declare under her hand I will marry Lord Guilford as soon as ever he come to  his age of consent or at any time before with the advice of my friend and  relation and I do declare I will marry no other person whatsoever and d  February prefer another bill against Lord Guilford Anthony Lord viscount  Falkland Edward caryi respondent father the trustee and executor state the  will and declare she be ready to marry Lord Guilford and pray that the trust  may be execute and the will in all thing perform in may the countess refuse  long to continue Elizabeth with her and deliver her up in chancery which court  place her with her grandmother mrs fin and always afterward direct all thing  as to her fortune residence c and in may just before Lord Guilford age of  consent Elizabeth friend send Colles some proposal to Lord Guilford guardian  for some maintenance for her out of her own estate from the marriage till they  shall cohabit Lord Guilford be young and about to travel which proposal be  reject and thereupon in July application be make to the court and the then  chancellor Lord jefferies declare such proposal reasonable and fit to be  insist on by Elizabeth trustee and that no person shall persuade her to marry  unless such proposal be comply with which order Lord Guilford guardian be  serve with and acquiesce and never after renew any address or application to  Elizabeth and in August the Lord chancellor send Elizabeth to live with lady  Hickman at Gainsborough and add further that no marriage shall be without  compliance with say proposal and under this order she be keep with lady  Hickman till the three year expire within which time and for three year and a  half long she Colles er p do towards effect say marriage all that honour and  modesty will permit and neither Lord Guilford nor any of his relation have  make any address or application to or take any notice of her in the time she  afterward marry the appellant James bertie a protestant and of as honourable a  family as Lord Guilford neither Anthony Lord Faulkland nor Edward caryi during  their life before or after her marriage disturb Elizabeth possession but on  Lord falkland death who survive Edward caryi respondent about June bring  ejectment against appellant who thereupon file their bill and respondent by  his guardian file his cross bill which cause be hear and the chancellor be  assist by the two chief justice the appellant bill be dismiss and John Carys  estate decree to respondent and the heir male of his body which decree the  appellant insist ought to be reverse and that appellant Elizabeth and her  issue ought not to lose the inheritance manifest intend for they mere because  she in her infancy advice with her trustee and pay obedience to the court of  chancery and do not perform a impossibility and further insist that the  distinction make for the respondent between a devise upon a condition  precedent and a condition subsequent be a criticism which the testator can not  rational be suppose ever to have understand and that here there be no reason  for make such a distinction for that Elizabeth be heir at law and have a right  to the profit within the three year the debt Colles and legacy have be pay  within that time nor can as they contend common sense warrant any such  distinction for that in plain and honest meaning the condition be the same  whether they precede or follow the grant and only show the party intention in  what manner any particular thing shall be comply with as far as may be and  therefore insist that the lord shall order the trustee to convey the estate in  question to the use of Elizabeth for life remainder to her son by bertie in  tail male remainder over as in the will provide in case she can have marry  Lord Guilford holt and Treby that January v vern Charles can the respondent  insist that it be not material through who default it be that the marriage be  not have since by the express proviso of the will the appellant be not to have  the estate in case the marriage do not take effect and in default thereof the  estate be to go over to Lord Falkland and that no man can tell what will to  make or how to settle his estate by the last solemn act of his life if a will  as this be make advice plain in the expression and execute accord to the law  and statute for that purpose shall by surmise or construction direct contrary  to the express declaration of testator intention be subvert and that in that  case not only the present Lord Falkland but all devisees of estate will  thereafter be precarious in the exposition of will be they never so plain and  as full express as word can express and that therefore the appeal ought to be  dismiss there be contradictory account of the fate of this appeal some book  say that the decree be reverse and other that the business be end by  compromise and some not speak of any appeal the fact be here state from the  lord journal salk vern Ch can see also Mod viner vol v way viii ringtail xiv  sheet Eq ab upon hear council on both side the debate be adjourn and all the  lord and also all the judge summon and after again hear council this question  be propose whether the appellant shall have any relief in this cause and  resolve several lord protest in the affirmative then move that mrs bertie may  enjoy the estate for her life and resolve that that be the relief the house  will give the appellant and that the decree be alter accord and that the c b  and I Nevil prepare a draught of the Colles judgement which be do and follow  videlicet after hear council c it be order and adjudge that the trustee sir  William Whitlock and I grant and their heir do forthwith execute conveyance  whereby all the manor c of say John caryi devise to they shall and may be  assure unto or to the use of appellant Elizabeth for life remainder to Lord  viscount Falkland and the heir male of his body with remainder to the right  heir of the say John caryi for ever and that there shall not be any account of  the profit Colles er p of say premise for the time pass and that the good of  say Mr caryi shall go and remain accord to the direction of his will and that  so much and such part of say order of dismission of the appellant bill and of  the say decree on behalf of say Lord Falkland as be contrary to or  inconsistent with this judgement shall be and be hereby reverse lord journ vol  xvi