atkins case shearman versus collins February SC cite Ves the legacy under the  will of I c be vest one and the time of payment postpone mere on circumstance  arise from conveniency to the estate and therefore the court decree they to  the plaintiff so butler v Duncombe p W Pitfields case p Hutchins v foy Com Rep  Lowther v give atk emes v Hancock ib barn Charles Rep SC attorney general v  milner atk Hodgson v Rawson Ves jeal v Tichner Amb bro Charles Rep SC Tunstall  v Bracken Amb bro Charles Rep SC Dawson v killet bro Charles Rep clarke v Ross  bro Charles Rep note Kemp v Davy ibidem note Godwin v Monday bro Charles Rep  Pawsey v Edgar ibidem note Thomson v dow ibidem note Morgan v gardener ibidem  note John Collins by will date the that of October give and bequeathe unto  each of his daughter and and mary Collins three hundred pound to be pay to  they by his executor John Collins when he shall attain his age of twentysix  but in regard my two daughter be already provide for by land settle on they by  I and my late wife and by legacy leave they by their grandfather and which I  have pay unto they it be my intention that they shall n t be entitle to any  interest for the say sum to they give by I as aforesaid before the same shall  become Payable atkins er p as aforesaid however for the better secure the say  several sum of three hundred pound give to my two daughter my will be that my  two close in Sutton shall stand respective charge with my personal estate and  be liable to the payment of the say several sum of three hundred pound to my  two daughter at the time above mention with a power to enter and hold till  payment of principal and interest from the time it shall become due and after  payment thereof devise the premise to his son John Collins in fee who he make  executor and residuary legatee both the daughter arrive at their age of  twentyone but die before John Collins attain his age of twentysix one of they  marry and leave two child the other be dead unmarried but by will give the  three hundred pound to her sister the husband and the two child bring the bill  for the legacy Mr brown for the plaintiff cite powlet versus dogget vern  miller versus warren id Jackson versus farrand id bruen versus bruen vern  Pitfields case will and Lowther versus give before Lord Hardwicke the first of  June atk S c it appear that the personal estate be not sufficient Mr clark of  the same side cite hall versus terry m t t atk and king versus wither Cas in  the time of Lord Talbot and Buckley versus Stanlake the that of November Mr  Robinson of the same side cite Hutchins versus Fitzwater and foy l c b command  atkins Mr solicitor general for the defendant the executor cite Bradley versus  Powell Cas in the time of Lord Talbot and hall versus terry I Tr atk to show  that the general rule shall prevail if the legatee die before the contingency  happen Mr ereskin of the same side cite Swinbourns that part and bright versus  Norton before Lord Talbot a similar point with Bradley versus Powell and  tourney versus tourney prece in Chanc Lord chancellor this be a legacy in the  first place on personal estate and if deficient a right of entry be give upon  real estate and to hold till satisfy the reason I shall go upon be partly  reason find on the rule of this court first that this be a legacy give to two  daughter general to be pay when his son John Collins shall attain his age of  twentysix with regard to the personal estate it be not dispute at the bar but  the plaintiff be entitle it be true it have be determine where there be a mix  fund of real and personal that notwithstanding it be consider as a vest legacy  as to the personal estate yet otherwise as to the auxiliary fund and shall not  be raise out of the real estate where legatee die before the time of payment  see prowse v Abington atk hall v terry atk van v clarke atk boycot v cotton  ante atk Richardson v grief atk attorney general v milner atk Even this be a  case of pretty hard digestion when first determine because if the duty itself  be due where the land be give as a security it seem a little harsh that the  land shall not be commensurate to the security but to prevent bring  unnecessary burden upon heir the court be prevail upon to determine it so and  it be now settle that it shall follow the rule of portion and legacy  Chargeable on real estate and sink in the land which bring it to the question  what will be the consequence if these legacy have be original Chargeable on  real estate but in regard my two daughter be already provide for by land  settle c atkins it be true the general rule be that where a legacy or portion  be to be pay at a certain age or certain time if the legatee die before that  age or before the time of payment come it shall sink into the land and have be  so establish ever since the case of powlet versus powlet Ventr and vern it be  determine original upon portion afterward be extend to legacy and take from  circumstance regard legatee age or day of marriage the court conclude that  parent think if their child do not live till such time that they will not want  their portion or legacy but it can be say it hold equal strong where the  circumstance be take from the conveniency of the estate and not from the  person of the legatee king versus wither before Lord Talbot be the first case  where a legacy be determine to be vest though charge upon land on circumstance  arise from atkins er p conveniency to the estate for his lordship be of  opinion there the legacy shall be raise the time of payment be postpone for  the conveniency of the estate and though Lord Talbot take notice of this  distinction in Bradley versus Powell which come before he after king and  wither yet there be a material difference for the person die before the time  appoint for payment come and therefore he determine the portion to sink the  strong reason in king versus wither be that the testator intend upon the event  of the son die to increase his daughter provision and her family if this be  the general doctrine consider how it stand here the time of payment be most  manifest postpone in order to prevent the burden of interest fall upon the  estate of the son till he attain his age of twentysix and when he have give  this express reason to infer from thence that the daughter shall lose the  principal or her representative will be a very force construction a die before  the contingency happen be the reason why a legacy that be charge upon land  shall not be Payable and I do not see if the son have die before his age of  twentysix how the daughter can have be entitle atkins in the case of Lowther  versus give the strong reason which weigh with I be that the portion be direct  to be raise after the death of the testator wife and therefore postpone mere  from the conveniency to the estate and family and not intend that the daughter  shall lose their portion because they die before the mother and there be a  great many case where this court have hold it shall not be raise in the mother  lifetime therefore if consider single upon the general rule of the court the  legacy will be vest and transmissible I do not rest it here but be of opinion  on general rule of law it be a vest legacy for the plaintiff may have have a  legal remedy by ejectment the word be with a power to enter and hold till  payment c vide the will this I take to be a right of entry give they to hold  the land in the nature of a tenancy by elegit and right say at the bar to be a  chattel interest so Wigg v Wigg atk emes v Hancock atk it have be improper  call a power for it be a right of entry which differ from a power for a right  of entry will go to executor and administrator for if a chattel interest be  grant to a man though his executor be not name yet they will take it bare as  his representative if this be so then there be a legal remedy to enter and  hold the land till principal and interest be satisfy now can it be say where  plaintiff shall have a satisfaction in his own person at law yet that I shall  relieve against it in this court mere upon a will and where all person be  volunteer the case have for the most part arise upon equitable charge where  there be no remedy except in this court and in the case of trust as it can  only be determine here whether the trust have arise or not this be not a  equitable charge but a legal one and this seem to be the principle which have  guide in the determination of many of the case emes v Hancock atk Tunstal v  Brachen Amb bro Charles Rep SC embrey v Martin Amb man v Herbert Amb Jeake v  Titchener Amb Hutchins v foy Com Hodgson v Rawson Ves Pawsey v Edgar bro  Charles Rep note Godwin v Monday bro Charles Rep and differ from those case so  that the party have his remedy at law by ejectment there be no ground for this  court to to take it from he but the plaintiff come here proper to have a  account of the personal estate of the testator in the first place and likewise  to avoid circuity for if the plaintiff have recover at law then the defendant  will have have a right to be relieve here upon payment of principal and  interest his lordship decree the legacy to the plaintiff Reg lib b fol atkins  er p