case lady Dorothy Saville and lady mary Saville by their guardian and also the  executrixs of lady essex Saville decease by bill of revivor plaintiff sir  george Saville and other may defendant Mr justice Tracy the nearness of  relation between the late Mr justice Tracy and I and the great reverence and  esteem in which his name be still hold by the profession of the law I make no  doubt will sufficient plead my excuse for give this case to the public in  which he have so great distinguish himself in the opinion he communicate by  letter to Lord Macclesfield be disable through illness to attend in court  especial as I can find it be report in any book this case be report in select  case in chancery whatever hold that the land of which marquis William be seize  in fee and devise to his daughter in tail be not such a estate of inheritance  as will be a satisfaction of the portion for his daughter by the second wife  because they claim these land by purchase and the proviso in the marriage  settlement restrain the satisfaction to land come to the daughter by descent  from their father vide Watson v earl Lincoln Amb Bellasis v Uthwatt atk note  the question in the cause arise upon this case by conveyance date the that and  that of February make upon the intend second marriage of William Lord eland  old son of George marquis of Halifax with lady mary finch after the usual  limitation there be a term create of year charge upon all the manor and land  in Nottinghamshire and Yorkshire comprise in the marriage settlement and the  trust of it be declare to be that in case atkins there shall be a failure of  issue male of the second marriage and there shall be one or more daughter or  daughter that the trustee shall by sale or mortgage of the premise for and  during the term after the commencement thereof raise if but one daughter pound  if two or more equal to be divide and to be pay to they when they respective  attain their age of sixteen or day of marriage which shall t happen and in  case any of the daughter shall die before the portion become Payable to go to  the survivor and to be pay to they at such time atkins er p as the original  portion if but one daughter she to have pound per and till year of age and  afterward pound per and for maintenance till her portion become Payable if  more daughter pound per and apiece till and afterward pound per and  maintenance to be pay at Michaelmas or ladyday which shall first happen after  the commencement of the say term provide or in case land or tenement of a  estate of inheritance shall descend to the say daughter from Lord eland of as  great value to be sell as the portion hereby for they intend then the year  term shall cease and be void for the benefit of the person who shall be next  in reversion or remainder of the say manor c the marriage take effect and  marquis George by conveyance date the saint and d of march recite the deed of  February and the several estate therein limit and that the reversion and  inheritance of the premise from and after the determination of the say estate  be limit to he and his heir do in consideration of his name and family and to  support the same in case neither he nor his son Lord Bland shall leave any  issue male settle the say premise upon George now sir George Saville baronet  for year if he live so long without impeachment of waste and to his first and  other son in tail male with several remainder to other person with the like  limitation marquis George be likewise seize in fee of several other manor and  land in other county and have the reversion in fee of diverse manor g  expectant upon the decease of the now marchioness dowager of Halifax and  likewise the reversion and inheritance in feesimple of and in several feefarm  rend expectant upon the decease of Catharine queen dowager make his will march  and thereby give his house at Acton in Middlesex to his wife for life and  after her decease to Lord Bland and his heir and then devise as follow as to  all my land not comprehend in the settlement make upon my son marriage I give  they to my son Lord Bland and to the heir of his body and for want of such  issue to my daughter Stanhope and make Lord Bland sole executor atkins marquis  George die without any other issue male than Lord Bland who prove the will and  he be seize under the will as aforementioned by lease and release on the that  and that of may declare the use of a intend recovery of several manor land c  in the county of Northampton Derby York Nottingham middle sex and Surre to be  to he and his heir and afterward by lease and release date the that and that  of July marquis William do settle the same manor c to the use of himself for  life and after his decease to the use of such person and for such estate as he  by any write sign in the presence of three or more witness or b his last will  sign in like manner shoulddeclare limit and appoint and in default of such  declaration limitation and appointment then after his death to his first and  other son in tail male and in default of such issue to all and every his  daughter and the heir of their body issue and in default of such issue to the  use of the say lady Stanhope and the heir of her body and in default of such  issue to the right heir of marquis George for ever marquis William by a  codicil to his will date the that of August sign in the presence of three  witness therein recite the deed of recovery c devise all his say manor c to  his executor for year upon trust by lie or mortgage to raise in case he have  no son the sum of pound apiece additional portion for each of his daughter to  be pay to they at sixteen or marriage and subject to the say land he devise  all the say manor land c to his first and other son in tail male and in  default of such issue to remain and be to such use and for such estate as be  thereof declare in and by the say indenture of lease and release of that e  that and of July on may the saint marquis William die without and issue male  but by his first lady have issue lady Ann Bruce and by his second three  daughter lady Essex lady Dorothy and lady mary Saville two bear in his life  and the other since his decease George Saville now sir George after marquis  William decease enter upon the land in Nottinghamshire and Yorkshire convey to  he by the deed of march subject to the several charge as aforesaid and receive  the rend thereof due at Michaelmas and have ever since pay the maintenance of  marquis William three daughter till the ladyday next before they respective  arrive at their age of year which the have all since attain unto atkins er p  atkins this cause undergo great debate Lord Macclesfield be assist by Lord  chief justice Pratt the master of the roll sir Joseph Jekyll Lord chief  justice king and Mr justice Tracy who all except the last deliver their  opinion in court may but he be ill write the follow letter to Lord  Macclesfield the night before may that Lord not be able by reason of my  indisposition to appear in court tomorrow to deliver my opinion in the cause  of Saville versus Saville which I be prepare to do I have in obedience to your  lordship command send your lordship my opinion in write upon the several point  that be debate by counsel at the bar and I think it not proper to take notice  of any other first point Whetherlands of which marquis William be seize in fee  and devise to his daughter in tail the remainder to the lady Stanhope c be  such a estate of inheritance as shall in proportion to their value be a  discharge or satisfaction of the portion for his daughter by his second wife  within the meaning of the proviso in his second marriage settlement I be clear  of opinion they be not because the daughter claim those land by purchase and I  think the proviso plain restrain the satisfaction to land come to the daughter  by descent from their father second point whether the land descend to the say  daughter from their father and which ought to go in satisfaction of their  portion ought to be value as at the time of the descent or when their portion  become due I be of opinion that the valuation ought to be make accord to the  value and circumstance of the land at the time of the descent for the proviso  be express that if land of as great value as the portion descend the term of  year be to cease and till the valuation make it can be know whether the land  be a full or only a partial satisfaction three point whether land descend from  marquis William to his daughter by his second wife in tail be such a estate of  inheritance descend from he as be within the meaning of the say proviso atkins  I be of opinion they be not especial be attend with the circumstance that  appear in this case first from the uncertainty there must be in the valuation  for the valuation be to be make at the time of the descent when lady Essex the  old daughter of the three daughter be but two year old and the young not bear  how can the contingency of their die without issue before they or their issue  attain the age of to suffer recovery be valid it be impossible there shall be  any certain measure or rule for such a valuation and it be hard to think it  can ever be intend that portion which be so much money certain shall receive a  satisfaction by value to be make mere at random and by fancy and therefore it  be more reasonable to think that such a estate of inheritance be intend as be  of a certain value and that be a estate of inheritance in feesimple but second  I conceive the objection against a satisfaction of the portion by the descent  of a estatetail be more strong by the circumstance of the remainder be in lady  Stanhope and marquis William have a daughter the lady Bruce by his first wife  for such a estate may descend to the daughter by the second wife to the full  value of pound and so the term of year will cease and the portion be discharge  and yet the three daughter by the second wife may not have near the value of  the portion design they by the settlement for by the express provision of the  settlement if one of that e three daughter die before her portion become  Payable her portion be limit over to her two survive sister but in that case  her share in the estate will have go equal to my lady Bruce and three if two  of the three daughter have die be before their portion become due the loss to  the survivor have be still great and therefore the word a estate of  inheritance be of a ambiguous sense and import likewise if not more strong a  estate in feesimple and when such a estate be proper equivalent as it be a  absolute estate in the land as there a absolute interest in the portion and as  it will descend as the portion will have go sure by all rule of construction  the word ought to be take in that sense which be consistent with the whole  design atkins of the settlement and not in that which will defeat it in so  material a part as the benefit of survivorship among the three daughter atkins  er p four point whether the reversion in tail expectant upon the death of lady  dowager hallifax and the late queen dowager be such estate of inheritance  descend from marquis William to his daughter by his second wife as be within  the intent and meaning of the proviso have deliver my opinion before upon the  descent of a estatetail in possession it follow I can be under no doubt as to  those reversion because the reason I have offer before hold more strong  against they and I have no occasion to mention the further objection that be  make against they as to a reversion in fee which be mention at the bar upon  the argument of the other point I do not find there be any such estate in the  case and therefore I shall give no opinion in it five point the only remain  one I think that be debate at the bar be whether sir George Saville shall  account for the rend and profit of his estate and for the value for the timber  cut down and sell by he to the end that they may be apply towards raise the  daughter portion I be of opinion he shall not it be say at the bar and not  deny I think by the other side that the constant course of the court in the  like case have be that the tenant for fife S all keep down the interest by the  rend and profit partridge v paulet ante vol but that the portion or the  principal money due upon any other encumbrance shall be bear by the whole  estate and this seem reasonable especial in this case for with respect to the  daughter they have nothing more to desire but to be secure of their portion  and that they be beyond all doubt by a sale or mortgage of part of the great  estate that be charge with they and with respect to those in remainder when  marquis George prefer sir George Saville to be the first who shall enjoy his  paternal estate to support his name and the honour of his family he can never  intend to distress sir George and put he into a starve condition vide ante Ves  for the sake of those in remainder who be more remote in his consideration  atkins and as for the timber sir George have by his settlement a power to cut  what he please as a part of the profit of his estate and as those in remainder  can not have come by their bill in this court and have stop he from cut down  the timber or have pray now that the portion shall be raise out of it if it  have be stand neither I think ought they to have any benefit by it now it be  actual cut down and sell my Lord if I have deliver my opinion in court I shall  have enlarge and enforce the reason I have here give several way but I shall  rather have contract they upon this occasion if I have have more time and less  pain but indeed I receive your lordship command so late this evening that I  can not so much as get this hasty write fair transcribe and therefore I hope  it will be excuse I be your lordship most obedient and humble servant Robert  Tracy on the that of may the two chief justice and the master of the roll  deliver their opinion in court which agree with Mr justice tracy in every  respect and Lord Macclesfield concur with they give judgement upon the several  point in the manner they have be already state first that a valuation ought to  be put upon the land descend to the plaintiff the daughter of marquis William  as a equivalent for the pound as the same be worth to be sell at the time of  such descent and from that time the trust term of year ought to cease but if  the value of the descend land be not equal to the portion intend to be raise  then the term to continue in trust to raise the residue second that whatever  land the daughter take by the will of their father they take not by descent  but as purchaser and such land can be no part of the equivalent three that the  estatetail descend to the three daughter and lady Bruce as heir of the body of  their father remainder to lady Stanhope either in possession or expectant on  the death of the late queen dowager and the lady marchioness dowager be no  satisfaction of the portion or any part thereof but if any estate in feesimple  descend to they from their father in possession or reversion expectant on any  term for year that ought to go towards their satisfaction atkins er p atkins  fourthly that what the defendant sir George Saville have raise by timber or  other profit of the trustestate ought not to be account for nor apply towards  the discharge of the plaintiff portion for the estate be no more than a  security for the with interest till the same shall be pay and that sir George  Saville be in the nature of a mortgagor in possession and the estate be more  than of value sufficient to answer the say portion and interest he be not  subject to account or to refund the money raise by he for the timber sell or  other profit by he make