case dame and hedge and other appellant William hedge and other respondent  saint April a freeman of London have child by two venture and be desirous of  make some difference between they in point of fortune give two of they by his  will a bind of pound he afterward get a new bind for the same sum make out in  the name of I b in trust for those two child the testator then by advice  strike out the bequest of the bind and republish his will hold that these  child be entitle to their full share of the orphanage part of the testator  estate without bring this pound into hotchpot Prec in Chan pale yellow Rep  vern viner vol p can vol p can Eq can ab can sir William hedge on his marriage  with his first wife with who he have a portion of pound settle land of pound  per and upon himself for life remainder to his say wife for life remainder to  all the child of that marriage and the heir of their respective body as tenant  in common and he have issue by his say first wife two son and a daughter  namely the respondent and Susannah in sir William intermarry with the  appellant dame Ann his second wife and by article execute on that occasion it  be agree that he shall receive out of her fortune pound in money and pound per  and during their joint life but that she shall have nothing out of his estate  either by the custom of London of which city he be a freeman or otherwise  howsoever save only what he can give her by his will brown in consequence of  this agreement sir William actual receive the pound in money and enjoy the  pound per and until the time of his death and in consideration thereof he  constant declare that his child by dame Ann shall have the pound over and  above their share of his personal estate which they will be entitle to by the  custom of London and by this marriage sir William have issue only two son  namely the appellant John and Charles on the that of April sir William make  his will and thereby give to the appellant John and Charles the pound which be  then due from the mercer company on their bind he also give to his daughter  Susannah pound and after some small legacy to other person he give the residue  of his personal estate to be equal brown er p divide between his say four son  William Robert John and Charles and make his wife dame Ann executrix sir  William hedge be on his deathbed and intend more effectual to secure the say  pound to his say son John and Charles but not as a advancement for they within  the custom of London or to deprive they of their share of his personal estate  under that custom do on the that of August be only two day before his death  direct that the bind from the mercer company to he for the say pound shall be  deliver up and another bind take for the same sum in the name of sir James  Bateman and this be immediate do be direct sir James to keep that bind for the  appellant John and Charles and on the same day sir William give his say  daughter Susannah pound in bank bill say that he give her they in lieu of the  pound which he have give her by his will soon after this transaction and on  the same day sir William be visit by one Mr Nicol a gentleman at the bar and  brother to dame Ann his wife and be desire by sir William to take his will and  insert therein the name of his son Robert who name be in some part of it omit  the will be for that purpose and that only produce but Mr Nicol be tell that  the bind from the mercer company have that day be deliver up and another take  in the name of sir James Bateman in trust for the appellant John and Charles  and that sir William have also give his daughter Susannah pound in bank bill  in lieu of the pound give her by his will he Nicol without any direction from  sir William hedge or even acquaint he with what he be go to do and without the  least intention of prejudice the child who be his own nephew by so do take pen  and ink and draw a line through those word in the will which give the pound in  the mercer company to the say John and Charles and the pound to the say  Susannah say that the same be so give as aforesaid ought not to stand in the  will he then acquaint sir William with what he have do and his reason for do  it and desire he to republish his will which he accord do whole rely on Mr  nicols judgement and on the that of the same month of August the testator die  brown the appellant dame Ann prove the will but the respondent be then abroad  no account be or can be state or settle till their return which be about  twelve month afterward when dame Ann give they a account of the whole of sir  William personal estate and in what manner he have dispose of it both by his  will and otherwise and particular inform they of the transaction relative to  the pound bind and after state a fair account of such personal estate which  the respondent William keep by he for several month to look over and then  return without objection it appear that the clear residue thereof exclusive of  the say pound be divide into four equal part amount for each four part to the  sum of pound S d and this sum each of the respondent receive about a year and  a half after the testator death and give receipt for the same accord but the  respondent William have on some occasion about four year afterward further  examine the account of his say father estate discover that there be still due  to he in respect of some small particular more than he have already receive  pound S the executrix therefore on the d of may pay he the same and he  thereupon by a receipt of that date set forth how that pound S become due  acknowledge that the same be by he receive in full of all demand out of sir  William hedge estate in December follow the other respondent Robert make a  demand of pound more than he have receive and the executrix have accord pay he  that sum he by a receipt of the that of that month state how this further sum  become due to he acknowledge the payment thereof in full of all demand out of  his say father estate but notwithstanding these several payment and receipt  the respondent think proper in Michaelmas term to exhibit their bill in  chancery against the appellant insist that the pound due from the mercer  company and give to they by sir William hedge in his lifetime as aforesaid be  either a full advancement to they out of his personal estate and that  therefore they ought not by the custom of London to have any share of the  orphanage part of such personal estate or if not a advancement and they can be  entitle to any share of such orphanage part yet brown er p that the say pound  ought to be bring into hotchpot with the orphanage part and the whole divide  equal between the four son on the that of November this cause be hear before  the Lord chancellor Cowper who be please to declare that the bind take in the  name of the say sir James Bateman by the direction of sir William hedge in  trust for the defendant John and Charles be a act do by sir William in his  lifetime ought to be take as a advancement of the say defendant and if they  will insist to have any share of the orphanage part of their late father  personal estate they ought to bring the same into hotchpot and therefore  decree a account to be take of sir William personal estate and that the  plaintiff alone shall brown have the orphanage part thereof between they  unless the defendant John and Charles will bring the pound into hotchpot and  if so then the whole be to be divide equal among the four brother from this  decree the defendant appeal and on their behalf it be argue t powys that by  the custom of London if a freeman die leave a wife and child his estate be to  be divide into three part one three the testator have power by his will to  give or dispose of as he please another three go to the wife and the remain  three to the child and this last three be call the orphanage part now the  three part which sir William hedge have power to dispose of and which be  therefore call the testamentary part amount to much more than he give away by  his will include the pound so that if the devise thereof have not be strike  out of the will by the accident abovementioned the take a bind for the pound  by sir William direction in the name of sir James Bateman in trust for the  appellant John and Charles can not have hinder they from receive their share  of the orphanage part of their father estate without bring the pound into  hotchpot and the strike out the devise of the pound in manner aforesaid ought  not in a court of equity to turn to the prejudice of the devisees but shall be  take as still stand in and make part of the will and ought to be make good out  of the same sum as part of the personal estate out of which it ought and will  have be pay if the devise have remain in the will that the bind take in sir  James bateman name for the pound in trust for the appellant John and Charles  on the that of August when sir William hedge lie die make it manifest and so  it further appear by the proof in the cause that it be not his intention in so  do to advance they within the custom of London and thereby exclude they from  their share of the orphanage part of his estate but only the more effectual to  secure to they the say pound out of that part of his personal estate which he  have power to dispose of as be please that a freeman of London can on his  deathbed out of the orphanage part give or distribute among his child any part  of his good or personal estate by way of advancement within the custom but he  may either by his will or on his deathbed by deliver part of his personal  estate in the nature of a legacy causan death prefer one child above another  so far as the same can be make good out of his own testamentary part which by  his will and accord to the custom he have a right and power to dispose of as  he please and this be precise the nature of the present case for by the proof  in the cause it full appear to have be the constant and uniform intention of  sir William hedge from the time of his second marriage to the time of his  death that the child of that marriage shall have the pound over and above  their share which will be come to they by the custom of London of the  orphanage part of his personal estate this be the same sum of pound which he  have with their mother the appellant dame Ann and accord by his brown will  which be make above three year before his death he give that specific sum of  pound in the mercer company to the appellant John and Charles over and above  their equal share with the respondent of the residue of his personal estate  and that this devise be still legible in the original will remain in the  prerogative court of Canterbury notwithstanding the line which Mr Nicol have  draw through it that sir William be under obligation of justice and conscience  to secure this pound for the appellant John and Charles because he have upon  his first marriage make a plentiful provision for the respondent who mother  portion do not amount to above a three part of the appellant dame Ann fortune  which she bring to sir William and because no other provision be make brown er  p for her child out of their father estate nor have the appellant dame Ann by  her marriage article any thing out of sir William estate either real or  personal but be whole exclude from any benefit thereof save only by his will  that it be not nor can be controvert that if the devise of the pound to the  appellant John and Charles have not be strike out of the will though the bind  be alter and take in the name of sir James Bateman in trust for they they will  have be entitle to this pound over and above their share of the residue of the  personal estate and it be full prove that the strike out this devise be do at  first without the direction or so much as the knowledge of sir William and no  way intend to the child prejudice and though he be afterward inform of it when  he republish his will yet he do it whole upon the judgement and declaration of  Mr Nicol who have himself swear that if he have understand the strike out the  devise will have in any manner prejudice the appellant John and Charles he  will not have do it that a court of equity ought to assist as far as possible  in support the true intention of party and for that purpose to supply defect  and rectify and relieve against casual mistake and other accident of a similar  nature and that therefore the court ought not in the present case to have  relieve the respondent against the plain and manifest intention of the  testator and against their own act and acquiescence in the deliberate  distribution of his personal estate agreeable to that intention shall it be  object that in the probate of the will under the seal of the prerogative court  no mention be make of the devise of the pound to the appellant John and  Charles it may be answer that in the original will remain in that court this  devise be still plain to be read and if through the ignorance or inadvertency  of the executrix in matter of that nature the will be prove without any notice  be take of the devise of the pound yet the interest of the appellant John and  Charles ought not to be thereby in any manner prejudice or affect in regard  they be no party nor in any wise privy or consent thereto but be then and  still infant brown on the other side it be contend e Northey g pauncefort that  sir William actual give the pound in his lifetime to the appellant John and  Charles and cause the bind to be change in trust for they make that money so  much their own that sir William himself can never afterward have claim it and  that this be such a advancement as oblige they by the custom of London either  to take it as a full advancement or bring it into hotchpot that sir William by  particular legacy and by make the appellant John and Charles two of his  residuary legatee have give they about pound out of his testamentary estate so  that as the decree now stand these appellant beside the interest of the pound  from the time of the gift which amount to about pound and which the decree do  not oblige they to bring into hotchpot will have about pound between they  which be pound apiece more than the respondent will have beside the appellant  dame Ann have about pound in jewel plate etcetera give her by the will so that  she and her child will have upward of pound out of sir William estate and  therefore if there be any room for equity to interpose against the custom of  London it ought to do so in favour of the first wife child who have the least  share but as the custom which be the law of the city be in this case plain  with the first wife child it be hope there can be no reason for equity to be  against they that the pound be at first in the will and then give by sir  William in his lifetime and afterward strike out of the will which be then  read to he and republish in the presence of the appellant dame Ann and her own  brother when the respondent be beyond sea and no friend of they suffer to be  present even their father own brother be turn out of the room by the appellant  dame Ann while this be do put it beyond a doubt that it be not only the  intention of sir William but of the friend and relation of the appellant John  and Charles that the pound shall be a gift in sir William lifetime and that  his will as to that shall stand revoke and if a will actual revoke shall under  pretence of mistake of the law by counsel or relation and after so many act  expressive of the testator intent to revoke it be set up again no person can  be sure of revoke his will but after hear counsel on this appeal it be order  and adjudge that the brown er p decree therein complain of shall be reverse  and that the appellant shall have the pound and their full share of the  orphanage part without bring the say pound into the orphanage part in hotchpot  jour vol p nun of the author who have report this case take any notice of  there have be a appeal a circumstance which as the decree be reverse render  those report of the case useless if not dangerous