case babington versus greenwood Lord chancellor Parker pre Charles Eq can ab  pl jointure by freeman on his wife in bar of dower will not bar the wife  customary part by if say to be in bar of her customary part a freeman of  London on his marriage covenant to add pound out of his own personal estate to  pound which be the portion of his then intend wife and both these sum be to be  lie out in a purchase of land and to be settle upon the husband for life and  then to the wife for her life for her jointure and in bar of her dower with  remainder to the child of the marriage peer William the freeman make his will  and thereby among other thing give a legacy to mrs wife and die leave a wife  and child upon a demand make by the wife of her customary part it be object by  Mr mead that though a jointure of land make by a freeman on his wife in bar of  dower shall not bar the wife customary part any more than it will bar her of  her share by the stature of distribution as in the case of Atkins v Waterson  Eq can Abr pl where the court of alderman by the recorder certify they have no  custom extend to that case yet where the jointure be to be make out of the  freeman personal estate and consequent to lessen the customary part such a  jointure say to be in bar of dower shall be intend a full provision and to be  in bar of any other provision consequent in bar of her customary part at least  that there be a legacy give by this will to the wife she shall not have both  the legacy and the customary part but must abide entire by the will or by the  custom and that it have be carry so far by the late master of the roll as that  where a freeman of London devise a real estate to mrs wife he decree that even  this will bar the wife of her customary part and that she shall not take both  but Lord chancellor hold clear that a jointure of land make by a freeman of  London upon his wife if express to be in bar of her customary part by the  custom of London then it will be so but if it be not so express and only say  to be in bar of her dower this will be no bar of the wife customary part  because land or a real estate be of a quite different nature from personal  state and a matter whole post blunden v Barker out of the custom of London and  as it have be admit peer William that a jointure of land settle in bar of  dower will no more bar the widow of her customary part than it will exclude  her from her share by the statute of distribution in case her husband shall  die intestate his lordship say it be tile same thing in the principal case  where a freeman have covenant to lie out of his own estate pound in a purchase  and to settle it on himself for life remainder on his wife for life for her  jointure with remainder to his child saint because from that time the pound be  not his own estate nor what the custom of London can meddle with for a man own  estate be what he have beyond his debt and what he owe be S another and the  custom of London affect only what be beyond mrs debt dly for that money  covenant to be lie out in land be as to all respect land in equity and will  descend as land for the benefit of the heir and not go to the executor it may  be entail as land and have the other quality of land and consequent be not  within the custom of London neither be this to be look upon as break into the  custom for the freeman may at any time during his life even in mrs last  sickness have invest his personal estate in the purchase of land which will  defeat the custom and stand good post Frederick v Frederick though the freeman  shall at the same time have say that he do this on purpose to defeat the  custom and as this if the purchase be real will have hold good to bar the  custom sure the case can not be worse where peer William er p peer William  such agreement for make the purchase be for a valuable consideration and part  of the marriage article then as to the legacy give to the wife by the freeman  will it appear that this legacy together with all the other legacy for so it  must be intend do not exceed the husband testamentary part it be he say the  same thing as if these legacy have be give by the freeman express out of his  testamentary part contra car v car atk which he have full power to dispose of  by mrs will and therefore this legacy be no be inconsistent with the custom  the wife may in such case take both for it be only the inconsistency betwixt  the legacy and the custom that prevent the widow or child in any case from  take both the consequence of which be that if the freeman give any legacy out  of his testamentary part the wife or child may provide there be sufficient  take both by the will and by the custom and therefore so may the wife do here  when indeed the freeman testamentary part will not pay all his legacy there  the wife if she be a legatee shall not take her legacy and her customary part  also vide Cowper v Scott post Vol III in the last place his lordship say it  can never be maintain that a devise of a real estate by a freeman to his wife  shall tar her of her customary part or prevent her from take both unless it be  so express in the devise and that for this plain reason because the devise of  the real estate peer William to the wife no way lessen or prejudice the  customary part nor be it any way material to those who be interest in the  customary or orphanage part where the real estate go so that there can be no  colour or foundation for such a precedent as Mr mead bad cite from the roll in  all which point the court be extreme clear so land settle on a child shall not  be bring into hotchpot under the custom Hume v Edward atk Qure autem whether  such legacy must not be give out of the testamentary part as appear from the  reporter note to have be determine in the case of Biddle v Biddle about this  time see also the case of Frederick v Frederick post