ambler case BURLETON against Humphrey devise in case his daughter shall marry  with consent and approbation of n h in write but in case she marry without  such consent or approbation the whole after the death of the survivor and her  and her husband to go to c she marry without the previous consent of n h but  he approve of the marriage afterward in write and hold no forfeiture lib Reg a  foe a Lincoln inn hall that Feb this cause be part hear in the last term and  come on again this day case be ambler er p Thomas Humphrey have only one child  a daughter by his will of that may devise to Nicholas Humphrey his heir  executor administrator and assign all and singular his land and tenement and  personal estate in trust out of the rend and profit to pay to his wife jane  and his daughter AnnaMaria until his daughter shall attain twentyone or happen  to die a annuity of pound apiece and in case his say daughter shall marry with  the consent and approbation of the say Nicholas Humphrey such consent to be  testify in write that then the whole of all and singular the premise together  with the interest and produce of what shall be raise thereout during the  continuance of the say annuity more than shall be sufficient to satisfy the  same shall on the day of my say daughter marriage be pay and convey unto the  person my say daughter shall marry or to such use as shall on the marriage be  agree on but in case my say daughter shall marry without such consent or  approbation or shall die unmarried then the whole of all and singular the  premise shall after the decease of such survivor be pay and apply unto and  among all and every the son and son daughter and daughter of my present and  late sister who shall be alive at the death of such survivor except my nephew  Humphrey as tenant in common and not as jointtenants the daughter marry within  a month after the death of her father without have so much as apply to  Nicholas Humphrey for his consent but about eleven month after the marriage be  have obtain his approbation in write and it be prove he at the same time  declare he believe he shall have consent before the marriage have he be  request question whether the daughter have forfeit the real and personal  estate which depend on two question ambler saint whether there ought to have  be a previous consent of Nicholas Humphrey dly whether as the daughter be heir  at law to testator she ought not to have have notice of the condition to work  such forfeiture as be lie down in Francis case   fry v porter Mod Mallon v  Fitzgerald Mod skin show Mr Wilbraham on the part of the devisees over argue  that it be a condition precedent that the daughter have nothing in her till  marriage with consent for the estate be devise to the trustee if she marry  with his consent then in trust for her if not then in trust for the other that  the testator can not mean to give the trustee a power of approve subsequent to  the marriage that will be enervate his primary intention which be to prevent a  improvident marriage by her not consult with Nicholas Humphrey that instanter  on the marriage the limitation over take effect and can not be divest by the  subsequent approbation that as to the point of notice none can be necessary in  this case for the devisees over who if any be the proper person to give it be  infant nor have they the legal estate give to they as the devisees over have  in Mallon v Fitzgerald but if notice shall be requisite as to the real estate  yet it be not so as to the personal the reason why notice to the heir at law  be require in the one case do not hold in the other which be because the real  estate vest in the heir at law instanter on the death of the ancestor and he  need not look into the devise upon condition for he claim by descent which be  a better title Lord Hardwicke chancellor give his opinion without hear the  reply case of this kind have undergo various fate but of late court have do  all they can to prevent a child be strip of a provision especial where there  be no aggravate circumstance and the end of the father intention and caution  have be attain and have lie hold of and make such construction of word which  they will not do in other case ambler the determination in Harvey v Aston be  unavoidable and there be gross circumstance attend the breach of condition in  that case the present be the case of a only child who by forfeit this devise  will lose all her provision the court will not therefore make such  construction unless compel to it by the circumstance of the case and precedent  which be exact the same two question saint what be the construction of the  will dly what be the law on such construction both as to the real and personal  estate which be connect together ambler er p as to saint the testator have  dispose of the real and personal to the trustee absolute in point of law the  condition in the former part import to be a precedent condition but in the  latter it be express in other word in the first part it be consent and  approbation in the latter consent or approbation it be argue consent and  approbation must be take to mean the same that be consent but I be not compel  to construe they so question whether the court shall construe the word and in  the former part to mean or or the word or in the latter part to mean and I be  at liberty to construe they either and shall consider it in the disjunctive  and then this subsequent approbation be sufficient and a previous consent be  not necessary it be but reasonable to give the trustee such a power of approve  after the marriage the daughter have marry a gentleman without previous  consent of Nicholas Humphrey but he have approve of the match since and what  be material and weigh with I there be not a single circumstance offer to  impeach the propriety ambler of the match therefore I must take it to be such  a match as the trustee may reasonable have approve and which the father will  dly suppose approbation be consider in this case as synonymous to consent and  such consent be necessary to be previous to the marriage question whether the  daughter have forfeit the real and personal estate for want of such consent as  to the real this case come within the reason in Francis case that notice be  requisite to work a forfeiture in a heir at law see post but not in a stranger  the latter can take only under the instrument that impose the condition but  the heir at law be suppose to enter and claim by descent and have no occasion  to know the devise this distinction be allow to be law in fry v porter and in  Mallon v Fitzgerald which last case be of a devise in restraint of marriage  objection there be a condition precedent for the estate be devise to Nicholas  Humphrey and his heir and nothing be give to the daughter but on condition of  her marry with consent and therefore she do not take by descent but that make  no difference for this be a mere trust and the daughter as heir at law will  take the beneficial interest till the marriage and therefore it operate as a  condition subsequent dly as to the personal there be great difference as to  the descent of the real and personal in general the latter vest in the  executor for the next of kin but here they must both go together it be the  testator intention that if the whole be not forfeit no part shall but if the  personal will not follow the real on this second point of notice yet on the  first point it will go to the daughter as the condition be perform by the  subsequent approbation of the trustee decree a account c the bill be file by  the daughter and her husband against the trustee for a account and settlement  which be accord direct by the decree l r Lord Thurlow disapprove of the  decision in this case and say he do not see why subsequent approbation if  sufficient after eleven month will not do at to any time during the whole life  of the trustee during which it must be quite uncertain whether the marriage be  have in conformity with the condition or not see in the case of clarke v  Parker Ves per Lord Eldon and see also his lordship observation on the present  case there in case where under a settlement or devise a consent be require  upon marriage if the consent be substantial give it will be hold sufficient to  prevent a forfeiture merry v rives Eden DAguilar v Drinkwater v b Daley v  Desbouverie atk Worthington v Evans S S clarke v Parker Ves in Pollock v cross  mere a general permission to contract marriage as the party may think fit give  by the person who consent be necessary and a subsequent approbation of the  marriage contract be hold a sufficient compliance but where the consent of  three trustee be require the consent of two without consult the three be not  sufficient per Lord Eldon in clarke v Parker Ves and where the condition be  that the party shall not marry against the consent of the trustee a marriage  contract without the knowledge of the trustee but who afterward declare their  disapprobation be hold a breach of the condition long v Bicketts S S a  condition in a devise require the consent of executor or trustee to the  marriage of testator daughter be not applicable to her marriage in the  testator lifetime with his ambler er p consent or subsequent approbation  Parnell v lion I v b Wheeler v Warner S pound where the marriage be in the  first instance encourage by the person who consent be necessary see Lord  strange v smith post see long v Dennis burr Malcolm v OCallaghan mad fry v  porter Ch can Ch Rep and he declare that the devise aforesaid be upon this  further trust that after his daughter shall attain the age of twentyone year  or before shall happen to die then that the other moiety or one halfpart of  the clear rend issue and profit of the premise devise as aforesaid shall be  aid unto his wife during the term of her natural life and the other moiety of  the clear rend issue and profit of the say premise shall be pay unto his say  daughter until she shall marry or die which shall first happen and in case his  daughter shall marry with the consent and approbation of the say n Humphrey  such consideration to be testify in write where it be necessary in order to  give a fair and reasonable construction to a will that the word and shall be  construe or the court have in many case so construe it hawk v hawk Ves Jackson  v Jackson ib read v Snell atk maberley v stride Ves bell v phyn Ves do v  Jessep east so in the construction of a deed bush v Dalway Ves sen Burleigh v  Pearson ib dobbins v Bowman atk Preeble v Boghurst Swanst and the word or have  in the same manner be construe in a will to mean and see Richardson v Sprany p  W see in Brownsword v Edward Ves eccard v brook Cox dean v keney east waddel v  Monday Ves but to let in this construction a intention must be show require it  turner v more Ves Montague v nucella Russell in wright v Kemp t r in the  surrender of a copyhold the word or be construe and  So in the construction of  a statute James c Keylway v Keylway p wms see dyer Hardw