case edward Trevor old son of sir John Trevor late master of the roll et all  plaintiff John Trevor the second son et all defendant Lord chancellor Parker  Eq can ab pi Mod Mod Eq can ab pi pi one article on marriage to settle land on  himself for life remainder to the heir of his body by his intend wife with a  covenant to make this settlement within two year or in default thereof to  stand seize to the same use though this be a estatetail at law yet equity will  turn it into a strict settlement sir John Trevor late master of the roll be  seize in fee of the capital message call Brinkynall and diverse land in the  county of Denbigh and Salop on his marriage with jane Puleston by article date  the d of October in consideration peer William er p of the then intend  marriage do for himself and his heir covenant with the trustee therein name  before the end of two year to settle and assure upon the say trustee as they  the say trustee shall direct and appoint all the premise to the several use in  the article express peer William as also in the settlement and conveyance as  shall be limit and agree upon by sir John Trevor and the say trustee and to no  other use videlicet to the use of he the say sir John Trevor for life without  waste remainder to the use of jane his intend wife for her life remainder to  the use of the heir male of he on her body to be beget and the heir male of  such heir male lawful issue remainder to his own right heir sir John Trevor by  the same article covenant with the trustee that the premise shall remain after  his decease to the say jane his intend wife for her life free from all  encumbrance and in case the use therein be not thereafter well and true raise  accord to the true intent and meaning of the article that then he and his heir  shall stand and be seize of the premise until such time as a far assurance  shall be thereof make to the use of the say article the marriage take effect  and sir John have issue by jane the plaintiff Edward Trevor and the defendant  John Arthur Tudor whether afterward lady Middleton and discretion Trevor No  settlement be make pursuant to the article nor any request by the trustee and  the plaintiff Edward incur his father displeasure have without his consent  marry a woman of no fortune sir John Trevor and his wife jane levy a fine of  the premise declare the use thereof to himself and his wife for their life  remainder to the second son the defendant John Trevor in tail male and so to  the young son in tail male successive and this settlement be by consent of the  plaintiff father and mother deliver to the defendant John Trevor peer William  afterward may sir John Trevor die intestate leave a real estate in Ireland of  about pound a year and some new purchase estate in fee in England which  descend to the plaintiff Edward Trevor and possess likewise of a very great  personal estate the plaintiff Edward share whereof come to near pound the  plaintiff Edward Trevor bring his bill to compel the second son John Trevor  and the other brother and sister who claim under the fine and deed of use of  sir John and his wife to convey the premise to himself in tail as heir of sir  John Trevor and his lady and the cause come on to be hear before the Lord  chancellor Parker for the young brother it be insist that these article be of  a ancient date videlicet in about fifty year since and that as a limitation of  a estate to a for life remainder to the heir male of his body make a  estatetail in a so in the execution of article in equity they will follow the  word which must create a estatetail in sir John Trevor that the use be to sir  John Trevor without waste remainder to the heir male of his body by the say  jane make no alteration it be a constant rule that where a estate be limit to  one for life with a remainder mediate or immediate to the heir male or heir of  the body of the tenant for life these be only word of limitation ante Hayter v  rod and Goodright v wright peer William that if in any case the law be  otherwise it will be in that of a devise of land to a for life without waste  remainder to the heir of his body yet even in such case though it be a express  estate for life and though there be the word sans waste and though the intent  of the party be allow to prevail more in a will than in any other conveyance  it will notwithstanding be a estatetail nay even in case of a devise of a  trust to a for life without waste remainder to the heir male of his body it  have be decree a estatetail in bale and Coleman vide ante by Lord Harcourt who  reverse the decree of Lord Cowper in that case also that the addition of the  word the heir male of the body of sir John Trevor and the heir male of such  heir male be immaterial and but tautology for the deed have limit the premise  to the heir male of the body of sir John by jane the follow word do only  repeat the same thing over again and it will have make no alteration have  those word be repeat ten time over accord to   Shelleys case and that of  legate and jewel in by the opinion of three of the judge of b c content Tracy  see their certificate ante which be send out of this court to the judge of the  common plead and be a much strong case peer William er p it be admit that if  the limitation have be to sir John Trevor for life remainder to the heir male  of his body by dame jane in the singular number and to the heir male of the  body of such heir male this have be but a estate for life in sir John Trevor  by reason the word heir male be in the singular number and but a description  of the person have a subsequent limitation annex to they   b archer case but  even in that peer William case it will have be a contingent remainder which  the fine afterward levy by sir John Trevor and his lady will have bar but in  the principal case the first limitation be to the heir male of the body of  John by jane in the plural number will have make a estatetail have it be in a  conveyance that it be true latterly in the execution of marriage article  decree bad go accord to the intention of the party as be a matter whole  executory and in the power of equity to mould and turn as the party intend  which yet be a pretty strain construction for when I covenant to convey a  estate to one for life remainder to the heir male of his body by his wife and  to no other use as be say here that equity shall say it shall be to other use  videlicet to the man for life remainder to trustee to preserve contingent  remainder remainder to the first c son of the marriage seem at law a breach of  the covenant and it will sound hard that there shall be no other way of  perform a covenant in equity but by break it at law that the construction of  these article must be the same as if they have come under the consideration of  a court of equity about the time of the date of they and then there can be no  case cite wherein equity have so far take upon itself as to decree the husband  but a estate for life when the article say he shall have a estatetail however  this case go much far for here be no settlement of the premise make or require  to be make within the two year this be a covenant to stand seize by virtue of  which sir John Trevor be actual seize of a peer William estatetail vest and  these article be actual execute be not to be execute over again in a court of  equity no instance can be give where a legal estate vest by a marriage  settlement be afterward alter and divest in equity that suppose this  settlement have be by way of lease and release to sir John Trevor for life  without waste remainder to his wife for life without waste remainder to the  heir male of his body by his wife equity will never have alter or curtail the  settlement or turn a vest estatetail into a estate for life no instance can be  give of that nature and if so a covenant to stand seize be as much a  conveyance as complete and more ancient than a lease and release for the  bargain and sale for a year be but a modern invention of put the grantee into  possession to enable he to take a release sir Francis more be say to have be  the first person who practice this way by chief justice north in the case of  Barker v keate Mod again though it may be object that this covenant to stand  seize be only until a settlement shall be make yet till then it be a vest  estatetail in sir John Trevor and the future settlement be to be make only as  it shall be agree on betwixt sir John and his trustee which now can never be  sir John be dead in the next place it be urge that the equitable circumstance  of the case be to be consider here be a old son who have provoke his father by  a peer William very improvident marriage which be but a just occasion for the  latter give away from he some part of the estate notwithstanding which his  father have still be very kind to he first by leave to descend upon he a  estate in fee in Ireland of about pound a year which with the timber be worth  above pound second by leave to descend upon he diverse land of value in  England purchase by the father after the make the settlement be above pound a  year all which it be in the power of sir John Trevor to have give from he  three by leave a share of the personal estate to come to he of near pound  value so that this be more than a equivalent for the estate in question which  the elder brother can not come at but by the aid of equity that sir John  trevor permit these land to descend to his old son be give they to he the not  hinder he of they when in his power so to do be a gift of they to he for this  reason it have be decree vern where a man by marriagearticle covenant to  settle land of pound per annum on his old son to take effect after his death  that the leave land of pound a year to descend to such son be in equity a  performance of the covenant vide Lechmere v earl of Carlisle post Vol III so  likewise the statute of distribution make as it be a peer William er p will  for every intestate and consequent this old son share of the father personal  estate which come to he upon his father death be a legacy of pound leave he by  his father vern ante Blandy v Widmore wherefore the old son can not say he be  wrong by that father who have leave to descend or come to he a estate of about  four time the value of the land in dispute but the case be still strong if it  be consider that peer William when this settlement be make upon John Trevor he  be then a young son unprovide for and have attain to manhood that equity  favour such provision look upon they as in nature of a purchase for which  reason be there a devise of a copyhold without a surrender equity will supply  the want of it for the young son as much as it will in the case of a purchase  object the article be a lie a specific lie upon these land and if the old son  have in equity a right to they in specie the father can bind that right by  give he other land resp the old son can have no right to or lie upon these  land if the estate be a estatetail execute by the article and consequent  barrable by the father and which the father upon a just provocation have bar  the article be then execute instead of executory but for argument sake suppose  this be otherwise a court of equity be not bind to execute all article but  consider the circumstance of the case and if hardship will ensue on the  execution of such article equity under those circumstance will not decree a  execution article can in no case be a great lie upon land than when I covenant  to sell my land to another suppose then I article to sell my land to another  for half the value this be a unequal agreement equity will not execute it and  in the principal case hardship many hardship will ensue the execution of the  article the intention of a dead peer William father will be frustrate by a son  who have receive from his father so ample a equivalent and a young son at that  time unprovide for will be defeat of his intend provision far it be a argument  that the only estate intend to be effectual secure that these article be the  mother estate for life videlicet her jointure since the covenant of sir John  Trevor go only to this that the premise shall remain to her free from  encumbrance no covenant extend to the heir male of the marriage it be of  weight also that the late master of the roll who have so long preside in a  court of equity with great experience and reputation be so far from be  apprehensive the article hinder he from dispose of these premise that he  recite the very article in the settlement now in question and be so far from  conceal they which it seem have be a imputation cast upon he by the other side  that he recite by this very settlement his intention to inrol they in chancery  his honour be so well satisfy he have a power over this estate as to have sell  part of it to a purchaser who then quiet enjoy it but how long he be to do so  if the plaintiff prevail night be a question upon the whole matter the law be  for the defendant John Trevor the second son the equitable circumstance of the  case be for he the intention of his dead father be for he the opinion too of  his father who may be just say to have be a great judge be also for he and it  be hope the opinion of the court will be so too but Lord chancellor decree  against the defendant John Trevor the second son on these reason peer William  that marriage article be in their nature executory and ought to be construe  and mould in equity accord to the intention of the party now that intention be  plain in this case and the consideration extend to the heir male of the body  of sir John by his lady as well as to her in respect of her jointure beside  the agreement be to settle the premise to himself for life without impeachment  of waste and to the heir male of his body by jane and to the heir male of such  heir male so that it can not be doubt but that the intention be sir John shall  have a estate for life only and the privilege of waste will be to no purpose  if he be to have a estatetail which will of course have make he dispunishable  for waste that if within the two year the wife trustee have call for a  settlement or have bring a bill to compel a performance of the marriage  article there can be no question but that accord to the several precedent  which have be in this court peer William er p equity will have direct the  settlement to have be make to sir John for life remainder to his first son c  and to say precedent have not go so high and so far backward as the date of  these article seem immaterial for what be reason equity and good conscience  now always be and always will be so and as if the trustee have apply within  the two year in order to have a settlement make it will then have be direct to  be make to the first c son of the marriage peer William sure their default or  neglect shall never hurt the issue of the marriage it be absurd to say it  shall Vol h p wms that it will be a strange and vain construction of the  article if sir John shall have such a estate by they the limitation of which  the very next day he may by a fine destroy and make such a settlement upon the  first c son will not be a breach of the covenant because it will be a  settlement accord to the intention of it and a settlement accord to the  intention of the covenant be not a breach but a performance of it that by the  whole scope of these article they be never design for a settlement but only a  bare agreement how and to what use the premise in question shall be settle for  first sir John Trevor covenant within two year to settle and assure the  premise to trustee and their heir as they or their heir or their counsel shall  appoint to the several limitation and use in the article mention and also in  the say settlement as shall be agree upon by sir John Trevor and the trustee  that the covenant to stand seize in the latter end of the article can not be  take as a final settlement from the word of it and the precedent part of they  be provisional only videlicet to stand till a settlement shall be make  effectual to answer the intention of the party that the article give a right  to the old son to claim these land in specie which if he insist upon he must  have and if other land have be give to he in satisfaction still he may have  claim these land and equity can peer William not have hinder he that he do not  claim the Irish or afterpurchased estate by the gift of the father but rather  of providence for it be high improbable that the father who have give his son  such a character in those hard and severe expression by his deed of settlement  shall entertain any favourable intention towards he and that the old son be a  purchaser under the marriagearticle must prevail against a voluntary  conveyance make by the father to his young son that as to such part of the  premise as be sell by sir John for a good consideration that be but a small  part and the purchaser will still enjoy it as he have no notice of the article  at the time of his purchase then his lordship cite the decree in the case of  bale v Coleman where Lord Harcourt make a distinction betwixt a devise of a  trust of land to a for life with a power to make lease c remainder to the heir  male of his body hold this to be a estatetail but that in article on a  marriage to settle land to a for life c remainder to the heir male of his body  by the wife the article be executory and but as minute the settlement shall be  accord to the intention and consequent to the first son c last his lordship  say this appear to have be the opinion of sir John Trevor himself and show a  decree make by he to the same effect upon marriagearticle that if this  construction be not make upon marriagearticle it will give way to fraud and  overreach and peer William to the defeat of the manifest intention of the  party in settlement in which the issue of the marriage be consider as  purchaser wherefore his lordship decree that the second son John Trevor and  his young brother and sister shall join in a fine to the old son to hold to he  in tail with remainder to the other son in tail successive accord to the  marriagearticle from this decree a appeal be bring in house nobles where the  matter be great debate by Lord chancellor and Lord Nottingham for the decree  and lord Trevor and Harcourt against it but at length the decree be affirm  without any division bro p c and Edward bro p c I be of counsel for John  Trevor the second son both in the court of chancery and on the appeal these  reason be state more at length in Eq can ab and so Jones v Laughton ib pl  Nandick v Wilkes ib pl cusack v cusack l bro peer William er p p c and Edward  bro p c et vide west v Erissey post Vol two where a actual settlement be make  before marriage and see uvedale v Halfpenny post Vol dod v dod Amb brudenell v  Elwes Ves Dillon v Dillon I ba pound