case Saville against Saville in the court of chancery where double portion be  give to daughter the less portion certain and the great on a contingency which  happen after the less portion be pay yet the daughter be entitle to the  subsequent provision c atk S c Eq ab the case have be argue before Lord  chancellor Parker assist by sir Joseph Jekyll master of the roll sir John  Pratt chief justice of the king bench sir Peter king and Mr justice Tracy and  stand this day for the opinion of the court sir Peter king open the case with  his opinion this be a bill bring against sir George Savill e to have the  execution of the term of five hundred year create in the marriagesettlement of  William late marquis of hallifax the trust of which be for raise the sum of  twentyfive thousand pound for daughter portion upon hear of the case it be  refer to the master to examine upon who report the case appear to be thus  George Lord Halifax father of William Lord Ealand upon the marriage of his say  son with lady mary finch daughter of the earl of Nottingham on the twenty of  February settle great part of his estate subject to the encumbrance and  annuity thereon charge to himself for ninety year if he shall so long live  remainder to Lord William for ninety year if he so long live remainder to lady  mary for life remainder to the first and every other son in tail male  remainder to trustee for five hundred year for daughter portion remainder to  the right heir of marquis George the trust of the say term of five hundred  year be declare to be for raise portion for the daughter of that marriage if  there happen to be no son videlicet if more than one to raise the sum of  twentyfive thousand pound in the whole to be pay between and among they at her  or their age of sixteen or day or day of marriage and until such portion so  become Payable to raise and pay the sum of two hundred pound per annum until  they come to the age of twelve year and then three hundred pound for their  maintenance and education subject to these proviso that in case one or more  such daughter die her share shall be divide to and among the survivor and  survivor and to modern report this on which the question arise provide always  and it be hereby further declare and agree by and between all and every the  say party to these present that in case there shall be no such daughter or  daughter or in case the say sum or sum of money and all maintenance in the  mean time shall be raise or in case the say daughter shall be advance in  marriage by the say William Lord Ealand with the like portion or great or in  case land or tenement of a estate of inheritance shall descend to the say  daughter of as great value to be sell as the portion hereby intend or so far  as the say land so leave to descend and come shall go in value that the term  shall be utter void soon after marquis George the first of may recite this  marriage settlement and that the remainder in fee of the land there settle be  vest in he make a further limitation of the inheritance of these premise to  the defendant sir George Saville now tenant in possession thereof so that the  whole dispute be between he and the daughter of that marriage for the marquis  George and William be both dead and there be no issue male of that marriage  and but only three daughter marquis William by a former venture leave one  daughter the lady Bruce by the master report there be several other deed which  need not be mention by which it appear that marquis George be seize of a  estatetail which descend to his son William and from he to his daughter and  that the reversion of another estatetail descend to the same daughter  expectant on the death of the lady Stanhope William Lord Ealand by his will  devise further portion to his daughter and some other estate the principal  question be whether any land or tenement of a estate of inheritance be come to  the daughter from their father William Lord Ealand accord to the word and  meaning of the proviso in the say marriagesettlement before I deliver my  opinion thereon there be one point or circumstance arise in this case which be  necessary to be first speak to if land of a estate of inheritance within the  meaning of the proviso be descend to the daughter in consideration of which  there ought to be a recouper or modern report er p cessor of the portion or  part of the portion intend to be raise by virtue of the term whether the  valuation of the land so descend be to be compute at the time of the descent  or when the portion be make Payable for in this case when the land descend  that be when the marquis William die they be charge with several annuity and  encumbrance which be determine before the portion become Payable either by  effluxion of time or decease of the annuitant and I be of opinion that the  time of the descent be the time of the valuation the word of the proviso  intimate as much for thereby it be declare that if land or tenement c shall  descend to the daughter that then the term shall be void so that it be plain  the estate and term of year be to determine upon the contingency that land of  as great value descend and consequent the time of the descent must be the time  of the valuation the portion and the recompense for modern report the portion  can both subsist at the same time for the one be the consequence of the other  and as the word of the proviso require this construction so be it find upon  reason for the daughter by virtue of the term be entitle to a maintenance  until the portion become Payable which be appoint in lieu of interest for when  the portion become Payable the maintenance cease so when land descend as a  equivalent proportionable to the value of the land so descend the maintenance  must cease which also prove that the value of the land be to be compute at the  descent beside if the contrary be to be admit and the daughter enter into the  land descend they not willing will be Accountable for the profit and the  question will be whether the account must be make in succession as each  daughter come of age or be entitle to her portion or make with they all  together so that the old daughter may be oblige to stay until the young come  to age the land which must be equivalent to the portion accord to the intent  of the proviso must descend or be leave to descend from the father to the  three daughter in the last part of the proviso there be the word descend or  come which have be object to conclude land come to the daughter by purchase  but I be of opinion that the word descend or come will have the same  signification descent be a know term in the law and a particular method by  which a person be entitle to land as when the ancestor die seize of the land  without do any act to break or binder the descent of it to the heir it be not  reasonable that a estate which the father give to his daughter as a act of  bounty or kindness shall diminish the portion provide for they by the  settlement or shall be instrumental to lessen a charge wherewith a three  person estate be encumber and consequent whatever the daughter claim by the  will of the father can never be look upon as a equivalent the word of the  proviso be if any land or tenement of a estate of inheritance shall c some  have take a difference between the expression land and tenement of a estate of  inheritance and a estate of inheritance in land and tenement which I take to  be too great a nicety though they be in fact two different proposition a  estate of inheritance in common understanding be a feesimple beside the value  of the land to be sell be the value of the estate in they it have be admit by  those who have argue for the most liberal construction of the word that there  be several sort of inheritance that be not within the meaning of the proviso  so that there must be some confinement of the general word in point of  construction for the descent of a reversion in fee expectant upon a estatetail  can never be a equivalent for the portion intend for the daughter within the  intent of the proviso for it will not be asset to charge a heir in a action of  debt at commonlaw therefore the word must be understand secundum to throw  under means and accord to the intention of the party there be but three sort  of estate videlicet of inheritance in possession or in expectance I be of  modern report opinion that whatever estate of a pure and absolute fee descend  to the daughter may be look upon as a equivalent even though the estate in fee  be subject to any the long term of year raise for a particular purpose as the  payment of a sum of money yet it will be compute as asset in possession the  term amount only to a charge upon the estate as to the estate tail in  possession as this case be circumstantiate it can be esteem as a satisfaction  to the daughter for their portion for it will not descend to the three  daughter simple and sole as heir to the body of the father but also to they  and their halfsister lady Ann Bruce as four coparceners I will not say that a  estatetail can never in such case modern report er p be deem asset for have a  estate be limit in special tail to marquis William and the heir of his body by  his second feme remainder to he in fee the descent of such a entail may be  asset but it be not necessary for I to give any positive opinion thereon  because it be not the case before the court I shall only say in general that  admit some exception estatestail be not within the meaning of this proviso for  land of inheritance accord to the common understanding thereof be land in fee  as where one devise a estate of inheritance in such land or covenant to convey  the inheritance of such land the fee of the land be always intend land of  inheritance to be sell must imply such land as immediate upon the descent  without do any other act be valuable to be sell now land entail be not for  though they may be valuable yet they can be immediate sell without do some act  if they come to a infant it be not in his power to make they so until full age  and then he must levy a fine or suffer a recovery and in such case the descent  itself do not make the value which it must to come within the meaning of the  proviso Estatestail be create to preserve the bounty of the donor to the donee  and his issue and the issue do not claim mere by descent from the donee but by  reason of the munificence of the donor through the donee for which reason  before the statute Henry c a estatetail be not forfeit for treason but the  issue may claim the estate notwithstanding the attainder of the donee No one  can think that the donee give this estate to the marquis William that the  daughter portion may go to another person the estate of inheritance which must  descend to the daughter to be a equivalent for their portion must have the  same quality as the portion it come in lieu of for the satisfaction must  always follow the nature of the thing satisfy the daughter at their age of  sixteen or marriage have a absolute power over their fortune and consequent  ought to have the same over the estate which come in lieu of they if I owe one  hundred pound and devise to my creditor that sum the devise shall be a  satisfaction for the debt but not so if give on a contingency or condition by  the statute of Gloucester c alienation of land hold by tenant by the courtesy  shall not bar the heir unless he have asset in land of inheritance by descent  from his father the construction of which statute have modern report always be  that land and tenement of inheritance in fee must descend to the heir or else  be be not bar by the alienation and warranty of his father for though the word  heritage be general yet it have in construction a special signification for  the asset must respect the essential quality of the inheritance whereof the  heir be to be bar and that the descent of a estatetail be not asset for it  ought to have be a fee beside the estatetail in the case at bar be a  particular one so attend as not to be construe within the proviso by the deed  the portion be Payable at sixteen or day of marriage and it be provide that if  any of the daughter die her share shall go to the survivor so that if one only  live to full age she will be entitle to the full twentyfive thousand pound in  this case the lady Ann Bruce become coparcener of this estate and consequent  if she survive the whole estate come to her which be direct contrary to the  proviso now a fee in possession will descend to the whole blood which a entail  do not the argument that the lady Ann may die first and so her part survive to  they be not sufficient for a equivalent must be certain and not depend upon  any accidental contingency as to the reversionary estatetail expectant on the  death of the lady Halifax everything say against a estate tail in general will  be good against a reversionary estate with this further consideration the term  of five hundred year be create as well to provide maintenance for the daughter  as portion and from these reversionary estate yield no present profit no  maintenance can be raise beside shall these daughter marry their husband can  do nothing to these estate no fine can be levy nor recovery suffer for want of  the freehold nor can the husband be tenant by the courtesy so that I be clear  of opinion that these estate be not within the proviso such a estate of  inheritance as can be account a equivalent as to the question whether sir  George Saville shall be Accountable for the profit or the timber cut down he  be tenant in possession without impeachment of waste I be of opinion that he  be Accountable for neither for the demandant come before the court only for  their portion modern report er p sir Joseph Jekyll master of the roll the  proviso in this case upon which the question arise be conceive in very unusual  term it be provide that if all the daughter die or be advance in marriage or  have a equivalent the term shall be utter void the general and more proper way  be that the term be convey over to the person or person to who the next and  immediate reversion or remainder shall belong if there be a particular  equivalent or satisfaction by descent of a estate of inheritance the term pro  tanto to cease and the residue of the portion only to be raise I mention this  matter because I take the question now depend to be rather a matter of law  than equity whether the term of five hundred year be satisfy or no it depend  on the construction of the condition or contingency contain in the proviso if  they have modern report happen the term be cease and void if not it continue  for if the term cease the trust of the term must by consequence do so too and  so contra this remove the authority of many of the case that have be cite at  the bar which relate only to equity I agree that this court incline strong  against give child double portion in order thereby to prevent the double  charge of man estate in the case of kemish v Thomas which be decree on the  nine of march it be say by Lord summer that it be not enough to say that where  portion be provide for child by one deed and afterward by another deed the  father further provide for they the second provision shall go as part of the  first portion though there be nothing express in the second deed that it be  intend as a satisfaction for unless the deed show express that it be intend as  a additional portion the presumption be that it be in satisfaction and in lieu  thereof for family estate shall not be double charge in that case by two  settlement different sum of money be appoint they be limit to be raise on  different estate the time of payment different and different the provision for  the child until they come to age by the second there be a augmentation of the  jointure of the wife provide for her by the first from whence it be argue to  be the intention of the father as well to increase the provision for the child  as the jointure of the wife yet it be decree that only one of the portion  shall be raise for the intention of double portion must be express the  presumption be on the contrary side that the estate shall not be twice charge  there be but two case cite at the bar necessary to be here mention one be  Duffeild v smith in the three year of William and mary in chancery knightly on  his marriage covenant to stand seize of his land to himself for life to his  wife for life remainder to his first and every other son in tail male  remainder to all and every daughter of that marriage until the next heir shall  pay to and among they the sum of three thousand pound he afterward die leave a  son and two daughter and devise by his will among several other legacy to his  old daughter seven hundred pound and to his young six hundred pound and devise  to his son all his estate upon trust to sell to satisfy his legacy and  afterward the son by his will devise the estate to his uncle be heirmale of  the family in tail remainder over and give all the residue of his estate real  and personal to his two sister which residuum amount to no more than the value  of the three thousand pound provide for the daughter by the marriagesettlement  after the son death the daughter bring their bill to recover the three  thousand pound provide for they by the settlement but it be dismiss because  the daughter title be at commonlaw to the land the limitation be to all and  every daughter until the next heir pay they three thousand pound but afterward  the twentyfifth of October will the uncle prefer his bill for relief suggest  that the thirteen hundred pound give to the daughter by their father will  ought to go in part of satisfaction for the three thousand pound and the  modern report residuary devise by the son amount to more than the value of  three thousand pound ought to be esteem a full equivalent for the same portion  of this opinion be the Lord chancellor and decree that the daughter shall  convey the estate to their uncle accord but this decree be afterward reverse  in the house of lord and consequent the daughter have as well the portion  provide for they by the settlement as the thirteen hundred pound devise by the  father and the residuary devise b the son this though it have some resemblance  to the case at bar be different the other be Hillcox v Hillcox cite by name in  lane case Trin modern report er p the first term when the seal be deliver to  the Lord Cowper one covenant to settle land to the use of himself for life  remainder to his first son in tail with several remainder over he do not  settle any land but die seize in fee of land of two hundred pound per annum  and it be decree that the land so descend shall be account as a equivalent for  land so covenant to be settle for this invincible reason that the son have a  better estate in the land so descend than he can have have in the land to be  entail and consequent be more valuable but the court for the benefit and  advantage of those in remainder order the son to settle the land so descend to  the same use that the land be covenant to be settle to the first question in  the case at bar be what land come to the daughter by act of the father can be  esteem a equivalent accord to the proviso in the first place where the value  of the land be mention the word descend be only use where it be provide for  land of less value the word be leave to descend and in the last place which  make this question it be say so leave to descend or come I be of opinion that  the last word be relative and by reason of the word so be relative and refer  to the place where descend be only use however come and descend be synonymous  term leave to descend be no more than permit to descend when the descent be  not break by devise or other act for the proviso can never intend to exclude  the bounty of Lord William to his daughter so that I think such land only as  descend from Lord William can be construe to be within the proviso the value  of the land be to be make at the time when the portion be to cease whole or  pro tanto that be at the descent of the land a estatetail be a estate of  inheritance and be descendible a   light a and at commonlaw be a fee and the  whole estate be in he and the issue though say to claim per form gift yet  claim as issue and not by purchase but the rule in Gregory case in coke six  report that word quivoca shall be take in worthy sensum general hold good if  land in tail will secure to they their portion in the same manner they be a  equivalent or else not b Vernon case   b now in the money they have a absolute  fee in the land a entail the money they may dispose of in their minority and  by will of modern report the entail land they can the difference between this  and a exchange be only that in the latter the party contract for themselves in  this the father for the daughter and if on exchange they can contract for want  of like estate it will be absurd that they can do so in this this estatetail  in possession be not therefore a equivalent then nothing be to be say for a  estatetail in reversion Pratt chief justice the intent of the proviso be that  the daughter shall have twentyfive thousand pound for their portion and that  it shall come to they from their father my Lord Ealand as appear throughout  the whole marriagesettlement the Lord Ealand have a estatetail make to he by  his father marquis George this provision be then by their grandfather and not  the father as it be direct to be by the marriagesettlement though the issue in  tail claim through the father yet it be per form gift and he have as good a  title as his father have and his father can not charge it if my Lord Ealand  have reduce the estate into a fee it will have be a equivalent but it must  never be consider as such until make so the estate that be to descend from the  father be to be a estate of value to be sell and estatetail while such can be  value it be not the intent of the party that it shall be sell but only that it  shall be value as if it be to be sell a estatetail can no way answer in  quality the portion to be pay Parker Lord chancellor Mr justice Tracy have  send I his opinion a see this opinion verbatim atk a but desire I not to read  it in court it be in general that there be no equivalent that the land be to  be value at the time of the descent and that none of the estate be within the  meaning of the proviso I be of the same opinion for the reason give must  convince anybody a estatetail be no equivalent for twentyfive thousand pound  the security of which be the main design infancy be a legal disability in case  the estate be fee it may be remove by Act of parliament to modern report er p  make a marriagesettlement but in case of a estatetail it will not because  other in remainder and reversion be concern they may reduce the entail into a  fee but not before they come to agree which be a chance that they may a devise  to one general be but for life but devise upon condition to pay money though  but ten pound and the estate be one hundred pound per annum be a fee because  if he shall pay the ten pound and have but a estate for life by chance he may  lose by it and the law will not put a man to run any hazard or chance then it  must be a estate of value to be sell estate in fee have their value in they  but a estatetail have not the intent of the marriagecontract be to secure so  much certain to the daughter and not to prevent anything far that the father  shall please to do for they and there be a decree accord