atkins case Frederick v AYNSCOMBE December the that see in re de lancey lr ex  SC post but not S p SC Eq Cas Abr note S p a father by article previous to the  marriage of his son covenant at the end of three year after the solemnization  thereof to pay to trustee their executor c pound to be settle to husband for  life to the wife for life then to the use of the first and other son in tail  male remainder to the daughter and daughter in tail general remainder to the  right heir of the husband provide if there shall be but one daughter and no  other child and the heir c of the husband shall within three calendar month  after his death pay to the trustee pound then all the use limit to such  daughter and the heir of her body in the pound shall cease and be void and  from thenceforth shall be to the use of the heir and assign of the husband the  husband die leave no child but a daughter and by will devise the pound and all  his property in the same and to the land to be purchase therewith subject to  the trust to the defendant his heir c and appoint he executor he let we the  three month elapse without pay the pound and deny he ever have asset  sufficient to have pay it the plaintiff a judgement creditor of the husband  bring his bill to be pay principal interest and cost out of the personal asset  and if not sufficient insist that the husband reversionary interest in the  pound ought to be deem real asset and apply in payment of his demand the  reversionary interest in the pound together with the benefit of discharge the  same from the estate tail limit to the daughter be to be consider as real  asset atkins er p and the plaintiff notwithstanding the three mouth lapse  without payment of the pound ought not to be prejudice thereby but let into  the benefit of the redemption see Wallis v crime Charles can Eq ab pl by  article previous to the marriage of the defendant son Philip with Valentina  wight the defendant covenant that he his heir his executor or administrator  will at the end of three year after the solemnization of the marriage or on  Valentinas attain pay to Robert and Malin their executor c pound or convey to  defendant their heir c land in feesimple within mile of London to make up the  value as the plaintiff shall not pay in ready money to be settle to Philip  Aynscombe for life without impeachment of waste to Valentina for life without  impeachment of waste then to the use of the first and every other son of the  marriage and the heir male of their body in tail male remainder to the  daughter and daughter of the marriage and the heir of their respective body  remainder to the right heir of Philip and by the say article it be agree that  if there shall happen to be but one daughter and no other child of the say  atkins Philip Aynscombe by the say Valentina and the heir executor or  administrator of the say Philip Aynscombe shall within three calendar month  after his death pay to Robert and Malin the trustee therein name the sum of  pound then all the use and estate therein before limit to such daughter and  the heir of her body in the land and hereditament to be purchase with the  pound or of the pound in case no land be purchase shall from thenceforth cease  and be void and that from thenceforth the pound or the land purchase shall be  to the use of Philip Aynscombe his heir and assign for ever Philip Aynscombe  die have no other child than a daughter a infant and by his will have devise  his manor message land c in possession or reversion remainder or expectance  and also the sum of pound and all his property in the same and to the land to  be purchase therewith subject to the trust in the say article to the defendant  Aynscombe his father his heir executor and assign and appoint he and wall  executor the defendant Thomas Aynscombe let the three month elapse after the  death of Philip without pay the pound to revoke the use limit by the article  to the daughter and deny that he ever have asset of Philip Aynscombe in this  hand sufficient to have pay the pound the plaintiff who be a creditor of  Philip Aynscombe by two several judgement in large sum of money bring his bill  against the defendant as devisee of the real estate and executor under the  will of Philip to be pay his principal interest and cost out of the asset of  the testator and insist that if the personal be not sufficient that Philip  reversionary interest in the pound agree by the marriage article to be lie out  in land together with the benefit of discharge the same from the estatetail  limit to the daughter ought to be deem real asset and apply in payment of the  plaintiff demand Lord chancellor there be in this case two point to be  consider saint what be the true construction of the marriage article dly what  equity arise to the plaintiff and judgement creditor out of these article the  article in the whole be very odd pen but however the proviso in they be the  single foundation for the present question and the doubt be what may be the  proper construction whether the daughter shall have the estate tail absolute  upon the failure of issue male or whether it shall be consider only as a  security for the payment of the pound and I be of opinion that from these word  in the article if there be one only daughter and no other child of the  marriage and the heir executor or assistant tors of Philip shall within three  calendar month after his decease pay to the trustee the sum of pound then all  and every the atkins use c before limit to the daugh to in the pound shall  cease that it be intend mere to create a security for the pound there be no  trust declare of the pound and to be sure the article be inartificial draw but  however the court must put a reasonable construction on this proviso if the  bill have be bring in the lifetime of Philip the court will have construe it  as a security only for the pound and perhaps this be more for the daughter  advantage atkins er p than any other for she may otherwise wait till the death  of her mother before she receive any thing and now she will have the pound at  all event though the pound do not original move from Phil Aynscombe yet it be  to be lie out for the benefit of Philip and his family and Philip by purchase  from his father be make owner of the fee in this estate and therefore it be in  nature of a right of redemption in the son and not a mere naked power it may  have be a very considerable point if this reversion have be sell in the  lifetime of Philip Aynscombe as to the second point what equity arise to Mr  Frederick the plaintiff and judgement creditor out of these article I be of  opinion that he must be relieve notwithstanding the three month after the  decease of Philip in which time by the article the pound be to be pay to the  daughter by his executor be actual expire the case of mark v mark Eq Cas Abr  be very strong to this purpose Prec Charles S c Mod S c stram S c the heir or  executor of the testator not do it can never be to the prejudice of a fair  creditor and to determine it so will be contrary to all rule of equity for if  the heir or executor will not pay within the time limit the creditor shall be  admit to do it himself and so it be lie down in the case of jordan v savage  Nov that before Lord Talbot Eq ab pl S c upon the whole the plaintiff shall  have this right of redemption but it be certain as to the manner of it he can  have it to the prejudice of the widow nor can he entitle himself to it but  upon payment of the pound with interest to the daughter at the rate of pound  per cent from her father death his lordship therefore direct a account to be  take of what be due to the plaintiff for principal interest and cost on his  two judgement and a account also of the personal estate of Philip Aynscombe  and the plaintiff to be pay out of the personal estate but if that be not  sufficient then the real asset of Philip to be apply and his lordship declare  that the reversionary interest of the pound agree by the marriage article to  be lie out in land and settle as mention together with the benefit of  discharge the same from the estatetail agree to be limit to the daughter ought  to be consider as part of such real asset and that the defendant Thomas  Aynscombe the executor of Philip not have pay the pound within the three month  mention in the article the plaintiff be a judgement creditor atkins of Philip  ought not to be prejudice but be entitle to be let into the benefit of such  redemption and direct that a account shall be take of the pound and interest  and upon payment thereof within month after the report make by the plaintiff  to a trustee to be appoint by the master he declare that pound and pound south  sea annuity that have be purchase therewith be discharge and exonerate from  the limitation in tail to the daughter and that the same be sell and that the  money arise by such sale be apply in satisfaction of what the plaintiff shall  pay for the sum of pound and in the next place in satisfaction of what shall  remain due to the plaintiff for principal interest and cost upon the two  judgement and the surplus of the money arise from the sale of the south sea  annuity be pay to Thomas Aynscombe in part of his testator real estate vide  roll Rep sir Robert dudley case cite in the cause of sir Christopher Hatton  and sir Edward coke which be mention by Mr Frederick counsel seem to be a very  strong case for he that case be in effect thus sir Robert Dudley James make a  feoff with a power of revocation and have afterward forfeit all his land to  the crown it be hold that this power of revocation and by the exercise of it  of course the land vest in the king by the forfeiture see roll Rep atkins case  DEGGS v Colebrook February the that upon payment of S cost bill may be amend  after answer put in but Lord chancellor say he will consider how to make a  more adequate compensation to a defendant for the future after a long answer  and other necessary proceed on the part of the defendant though a plaintiff  amends his bill several time yet he shall not faith tax cost but only S unless  it be a case of particular oppression Masserene v London bro Charles Rep Lord  chancellor say in this cause that he will not in any one particular case  oblige a plaintiff to pay more than S cost to a defendant after answer put in  on the atkins er p amendment of the bill because it have be the constant rule  of this court and establish at first to prevent the inconvenience of enter too  large into the merit of the cause before the proper time for hear the merit in  Lord chancellor king time there be a attempt to vary from this rule but it do  not answer but Lord Hardwicke say he will notwithstanding consider how to make  a defendant some amends for be put to a great expense by allow he a more  adequate compensation than only twenty shilling cost on the plaintiff amend  his bill after a long answer and other necessary proceed on the part of the  defendant atkins see prefatory note