Barnardiston sir robert Walpole and Lord Conway Aug see Cunningham v moody Ves  sen overrule do v Martin t r in on the marriage of Francis Lord Conway with  lady mary hide the daughter of the late earl of Rochester article be enter  into whereby it be agree that the fortune of the lady be to be pound but only  pound part thereof be pay down and the remain pound be agree by those article  to be pay with interest into the hand of the trustee within one year after the  marriage in trust that the same shall be lie out in the purchase of land and  that those land shall be settle to the use of Francis Lord Conway for life the  remainder to lady mary the intend wife for life the remainder in trust for  such child or child and for such estate absolute or conditional or subject to  the raise such sum upon they for the benefit of such child in such proportion  as Francis Lord Conway shall appoint and in default of such appointment to the  use of all and every of the daughter young son and the heir of their body and  if only one son then to he and the heir of his body the remainder to the  father in fee the marriage take effect there be issue of this marriage four  daughter lettuce mary harriot and Catharine lettuce die in the lifetime of  Francis Lord Conway without be marry and thereupon Francis Lord Conway make  two lease of certain land for fortyone year in trust for the raise portion for  the survive daughter Payable at their age of seventeen upon condition that if  they shall marry without consent of their father then the benefit of those  portion to be raise by those lease shall cease but those deed be subject to a  power of revocation after the make these lease mary marry with bring without  the consent of Francis Lord Conway the lady of Lord Conway die he marry a  second wife name and by the second Barnardiston venture he have two son the  present Lord Conway and Henry he make his will and thereby give to harriot  pound and then come a clause with the follow recital whereas I do demise  certain land to trustee for fortyone year to hold at their ancient rend by way  of provision for young child and whereas there will be great arrear in the  hand of the trustee arise from the profit of those lease and whereas there be  due to I the sum of for and on account of my first wife the daughter of the  late earl of Rochester so that my personal estate will be sufficient to pay my  debt and legacy yet lest it shall not he devise certain land to sir Robert  Walpole in trust to supply any deficiency of his personal estate and the  residue of that personal estate he give to sir Robert Walpole in trust for  Henry Catharine die and harriot become her administratrix and by this same  will he give one legacy of pound to mary and another legacy of pound to  Catharine to this will he make a codicil and thereby give a legacy of pound to  his daughter mary in full of all benefit of his estate the present bill be  bring by sir Robert Walpole as trustee for Henry Conway against the present  Lord Conway against harriot Conway and against bring the only son of mary one  of the daughter beforementioned in order to have a account of the personal  estate of Francis Lord Conway a cross bill be bring by harriot Conway in her  own right and likewise as administratrix to Catharine in order to have the  benefit of her share in the pound agree to be lie out in land by the  marriagearticle the attorneygeneral argue on the part of the plaintiff in the  original Cause and for authority cite the case of noise and mordant that of  Stretfield and Stretfield determine by Lord Talbot and that of Parry and the  duke of Cleveland Barnardiston er p Barnardiston Mr Murray argue as counsel  for miss harriot Conway and for authority cite the case of one price determine  at the bolls about three year ago Lord chancellor say that in the present case  the interest of several person come to be consider arise from the portion of  lady mary hide here be two bill bring one by sir Robert Walpole as executor to  Francis Lord Conway and the end of that bill be to increase the personal  estate of the testator as much as may be the other bill be bring by miss  harriot Conway claim her share in the pound agree by the marriagearticle to be  pay to the trustee for the purpose therein mention and that she claim partly  in her own right as she be the only survive daughter of the late Lord Conway  and partly as she be administratrix to her sister Catharine decease to these  bill bring be make a defendant who be a infant and the only son of mary  another of the sister ile insist that he be entitle as issue in tail to that  share in the estate which his mother will have have provide the have be invest  in land and she have survive her father Lord Conway claim a interest likewise  in this pound as he will have be entitle to have have the remainder in fee  provide it be lie out in land the whole arise on the article of marriage in  which his lordship state to the same effect as be beforementioned the fact  that have happen have be that there be four daughter of this marriage lettuce  mary harriot and Catharine lettuce die in her father be lifetime without have  ever be marry mary marry without his consent but die in her father be lifetime  leave bring one of the defendant harriot and Catharine survive the late Lord  Conway Catharine be since dead and harriot be become Barnardiston her  administratrix the late Lord Conway after the death of his wife by who he have  these four daughter and after the death of lettuce execute two lease to  trustee for fortyone year for the raise portion for his daughter provide they  marry with his consent after this he marry again have issue the present Lord  Conway and Henry he then make his will and thereby give pound to his daughter  harriot his lordship then state the rest of the will to the same effect as be  beforementioned upon this state of the fact his lordship say he will first  consider the interest which bring claim in this estate and he will consider  his claim as it stand original under the article and likewise as it stand  affect by the subsequent act that have be do and his lordship say he will in  the first place consider the subsequent act that have be do by the late Lord  Conway and with regard to they provide bring the infant can have have any  Title under the article his lordship opinion be that none of the subsequent  act will have be any bar to he the only ground upon which it can be pretend  that such bar arise be either that the father have make a appointment of this  pound in such a manner that mary the mother of bring be to have no benefit  from it or that what he have give the mother since be a satisfaction for that  demand but his lordship opinion be that in neither of these way will any bar  arise to bring provide he have any Title under those article as to any  appointment sure there be no colour for it nor can it be say that any  satisfaction can be construe to arise from the lease that be make in those  lease there be no word that import either a express or imply satisfaction in  those lease no notice be take of the article the objection be that be those  lease not to be construe a satisfaction of the article here will be double  portion but that objection arise Barnardiston from double portion do not hold  but where both the portion come from one and the same person whereas in the  present case one portion come from the mother and the other from the father  and the case of Duffeild and smith before Lord summer be a strong case in this  respect than the present one there be one portion agree to be pay by a brother  in his own right another be due from he as executor to his father Lord summer  indeed hold that the one portion be a satisfaction for the other but that  decree be reverse in the house of lord the only doubt in the present case  arise from the will and codicil as to the will the father do indeed give to  mary pound but that be by no mean declare to be in satisfaction of what she be  entitle to from her mother portion by the article and beside that legacy be  revoke by the codicil and as to the codicil it be indeed true that the father  do thereby give his daughter mary pound in full of all benefit of his estate  but still that will be no bar to mary share for by the give her that pound he  seem only to design to exclude her from all benefit of his Barnardiston er p  estate but do not seem to design to exclude her from the benefit of the estate  that come from her mother the question then to be consider be whether under  the article bring the infant can not be entitle to any benefit of this estate  but his lordship say his opinion be that bring the infant have no such Title  with regard to this part of the case the pound must be consider as lie out in  land but then the interest under which bring can claim any benefit must have  be a contingent remainder and that to the lime of the death of the late Lord  Conway the late Lord Conway have a power during all his lifetime to limit the  estate among the daughter and young son in suchManner as he think proper and  therefore during all that the remainder over to those child in default of such  appointment by the father must have be contingent this be agreeable to the  three and four resolution in the case of Lodington and kime report in salk  there it be say three that Barnardiston this limitation to the issue be not a  executory devise be after a freehold but a contingent remainder so that a  posthumous son can never take fourthly that the remainder limit to the issue  of a be a contingent remainder in fee and that the remainder to b be a fee  also but those fee be not like one fee mount on another nor contrary to one  another but two concurrent contingency of which either be to start accord as  it happen so that these be remainder contemporary and not expectant one after  another so likewise be the five resolution in that case and may be apply to  the present purpose there the word be the court hold that the remainder in fee  to b be not vest because the precedent limitation to the issue of a be a  contingent fee and they take this difference videlicet where the Mesne estate  limit be for life or in tail the last remainder may if it be to a person in be  vest but no remainder limit after a limitation in fee can be vest by these  resolution it appear that both the remainder to the child be contingent one  and as this remainder which be to take effect on default of the father be make  a appointment must have be contingent for the benefit of the daughter and  young son to the time of the death of the late Lord Conway the consequence be  that as mary one of the daughter die in his lifetime her issue can have no  benefit from it the next point to be consider be the interest of miss harriot  Conway and that both in her own right and likewise as she be administratrix to  her sister Catharine both of they survive their father and therefore there be  not the same objection with regard to they as there be with regard to under  the article miss harriot in both her right have a clear Title and the only  question will be how far she be bar with regard to those right by the  subsequent act of her father the father by his will have give her pound and  she can be allow to claim under the article and will both but she must make  her election which she will abide by for it appear express by this will that  the testator have consider the pound as part of his personal estate  Barnardiston he have indeed be mistake in that but that can make no difference  it be sufficient to say that he consider that pound as part of hispersonal  estate out of which miss harriot be to have her satisfaction for her legacy of  pound and therefore she can claim that pound and her interest in the pound  likewise this be to be part of the fund out of which the legacy be to be pay  her and she can never have the legacy it self and likewise part of the fund  which the legacy be to come out of this be agreeable to the case of noise and  mordant and that of Stretfield and Stretfield which have be cite and to show  that the testator be mistake in his right with regard to the pound by consider  it as part of his own estate can make no difference he say that in the case of  noise and mordant the party be mistake in his right and yet that be hold to be  no objection for these reason his lordship observe that miss harriot must make  her election whether she will take under the will or under the article but  then his lordship say that as he be speak a doubt arise in his mind with  regard to bring and at present he be not satisfy but he may take the same  share in the estate as his mother will have have if she have survive the late  Lord Conway and though this be a contingent remainder yet his doubt be whether  accord to archer case the issue will not be entitle to the benefit of it by  stand in the place of his mother however he say he will reserve that point  till the infant come of age and so his lordship be please to decree accord  Barnardiston er p