case Frances lucy widow plaintiff the honourable robert more Esq all e contra  S C bro p c see Drucey v denison Ves in court Lord chancellor George Bohun Esq  be seize of diverse message land and tenement of inheritance and also possess  of a leasehold estate near Spittleflelds in the county of Middlesex and be  likewise possess of a considerable personal estate and have four daughter by  his last will and testament in write bear date the that of July devise to  trustee therein name and their heir all his real estate near spittlefields or  elsewhere in England not therein before devise to be sell and the money  thereby arise to be subject to the intent of his will declare concern the  residue of his personal estate as if the same be personal and give his young  daughter jane pound to be pay at the age of twentyone or marriage which shall  first happen and after other legacy give the residue of his real and personal  estate to his three young daughter mary Elizabeth and the say jane to be equal  divide between they and make his say trustee and his wife executor of his say  will the d of December article of agreement be enter into between George Lucy  Esq of the one part mary Bohun relict of the say George Bohun and the say jane  Bohun then a infant of the second part and the right honourable Allen Lord  Bathurst and Gilbert clerk Esq of the three part recite that a marriage be  short intend to he have with the consent of the say mary and that the say jane  will be entitle to the sum of pound at her age of twentyone or day of marriage  and be likewise entitle to a three part of diverse land tenement and  hereditament mention in her father will or to the three part or share of the  money or profit arise thereout and that the say jane be Willing to bestow upon  the say George in consideration of the say marriage as mosely report well the  say sum of pound as also all her interest in any the land tenement  hereditament chattel and personal estate of the say George Bohun so soon as  she shall attain her age of twentyone to hold the say land to the use of the  say George Lucy his heir and assign for ever and the say George Lucy in  consideration of the say marriage and portion and of such conveyance and  assurance to be make to he of the residue of the say land and hereditament and  for secure to the say jane a maintenance in lieu of dower do covenant with the  say Lord Bathurst and Gilbert clerk that he will immediate upon such  conveyance make to he and upon the say jane attain her age of twentyone year  settle upon her a jointure of certain land of pound per annum therein  particular describe discharge from encumbrance for her life and that the  reversion of the say land after her death together with other land of pound  per annum shall be settle on the first and other son of that marriage in tail  male none of the party except the say George Lucy execute the say article  after the say marriage have the say jane join in a fine with her husband and  her sister and their husband for sell some part of her father estate to raise  the say pound which be pay to the say George Lucy her husband by indenture of  lease and release date the that and that of march make between the say George  Lucy and the say jane of the one part and the say Lord Bathurst and Gilbert  clerk of the other in consideration of the say marriage and in performance of  the say article and for make a jointure for the say jane and provision for the  issue of the say marriage the say George Lucy settle the same land in the say  article agree on to the use of the say jane for life for her jointure and in  bar of her dower and also settle and limit the same premise together with  other land and hereditament of above pound per annum to the use of himself for  life with remainder to trustee to preserve contingent remainder and afterward  subject to the say jointure to the use of the first and other son of that  marriage in tail male and this settlement be execute by the say jane at that  time of full age the that of August the say George Lucy die without issue and  intestate mosely report er p whereby the inheritance in fee of the land  comprise in the say settlement subject to the say jointure descend to William  Lucy the plaintiff late husband decease as brother and heir of the say George  Lucy and administration likewise of the good and chattel of the say George  Lucy be grant to the say William Lucy soon after the death of the say George  Lucy the say jane his widow take possession of her say jointure and enjoy  mosely report the same during her widowhood and in intermarry with the  defendant more who in her right enjoy the same during her lifetime but the say  jane never do pursuant to the say article convey her part of the land of the  say George Bohun or assign her share of his personal estate to the say George  Lucy in his lifetime or to his heir or administrator after his decease by  indenture of lease and release date the that and that of June between the  defendant Robert more and the say jane his wife of the one part and dr Henry  more and sir Gustavus Hume Bart of the other part and by fine levy the say  Robert more and jane his wife do bargain and sell to the say dr Henry more and  sir Gustavus Hume the say jane three part of her say father estate to the use  of the say Robert more for life remainder to the say jane for life remainder  to the say Robert in fee in Michaelmas term William Lucy pretend to be entitle  as heir at law to the say George Lucy to the say jane three part of her say  father estate exhibit his bill against the defendant Robert more and the say  jane to have a conveyance thereof the say defendant Robert more and the say  jane put in their answer and the say jane swear that the say George Lucy her  late husband as they live happy together and have no issue and there have be  so great misunderstand between the say George Lucy and his brother William  Lucy that George Lucy do not so much as visit he for twelve or thirteen year  make the aforesaid settlement on her and then and often after tell her he will  leave her her own estate to come to her in December the say jane die without  issue and administration be grant of her good and chattel to the defendant  Robert more in February the say William Lucy also die leave Frances Lucy his  widow his executrix who duly prove his will and also take out administration  to the say George Lucy and in Michaelmas term exhibit her bill against the  defendant more and other to the same effect with William Lucy bill and in  Michaelmas term the defendant more exhibit a cross bill against the plaintiff  in the original cause and other for a account and conveyance of the say estate  the that of November both cause be hear when Mr fazakerley and Mr will of  council for Frances Lucy speak to this effect mosely report where a suitable  jointure be make as in this case there be a much great than mrs more be whole  fortune require it ought to be intend to be in consideration of the fortune  though it be not express and ought to entitle the husband to such fortune  though not actual pay but here the jointure be express to be make in pursuance  of the article and by refer to they be the same as if the article have be full  recite and as the land limit for the jointure be the same in the settlement as  in the article the settlement must therefore be upon the foundation of the  article and mrs more be sign the settlement when she be of age and her  acceptance of her jointure after Mr George Lucy death be a full agreement to  and confirmation of the article though she be under age at the time they be  make that in the case of smith and ball where a infant lose money at a  horserace and after he come of age promise to pay it Lord chief justice holt  be of opinion that the promise shall bind he yet a promise without a  consideration be not bind and nothing be due to the other because he be a  infant vern the Lord viscount Hereford marry the defendant mrs narbonne who  have a estate in land and a portion in money and be both infant a act of  parliament be obtain for settle a jointure on the wife in bar of dower provide  the jointure shall cease if the wife when of age do not settle her land but  nothing be say as to the personal estate part of the fortune be a mortgage for  pound take in a trustee name the wife when of age settle her own land and  after the husband die and the mortgage be decree to the executor of the  husband and that it shall not survive to the wife as a choose in action and in  the case of Cornsford and farmer the husband covenant to leave the wife such a  sum if she survive he and he make her a provision more than adequate to that  sum and die before he have reduce her fortune into possession and Lord Cowper  decree the fortune to his executor against the wife wither versus Ketsea  mosely report er p Chan Rep Cas salk and though mrs more may have waive her  jointure and claim her fortune which remainded unpay yet by accept her  jointure she make her election and ought to give up her fortune which be the  consideration of her jointure else she will have a double satisfaction Mr  attorneygeneral for the defendant Robert more the wife share of her father  land be still a real estate and the party interest may claim it as such and it  be recite in the article as real estate which distinguish this from the case  that have be mention which be of personal thing or choose in action which  belong to the wife for Mr Lucy can have no title to this share without a  conveyance from the wife or her trustee which be never have mosely report the  subsequent fact speak a waiver of the article and not a inclination to make  they Obligatory we all agree mrs more can not be bind by the article at the  time of their execution be then not above seventeen year of age and so not  capable to contract and they be not execute by her or her trustee but only by  Mr Lucy who in consideration of her portion of pound and upon her convey her  share of the estate to he and his heir covenant he will make such a settlement  by way of jointure and provision for the issue of that marriage so that the  contract be only on his part and neither the guardian of the lady or any of  her trustee be party or if they be their join in the article can not bind her  for suppose Mr Lucy have bring a bill against her and her trustee to have a  performance of these article equity will not have compel her to a specific  execution yet Mr Lucy will not be without a remedy for he have take care to  secure himself be not oblige to settle unless she first convey to he and his  heir and he may always have say I will not settle till you first convey these  article be execute in and in Mr Lucy make the settlement during which time  they have no issue and Mr Lucy have receive the pound and she will be entitle  to dower out of his land which be pound per and so that Mr Lucy may think it  proper to settle these land of pound a year on her and that she shall retain  her share of her father land too in the settlement indeed notice be take of  the article because he design to settle the same land and to the same use but  there be no notice in the recital nor be the settlement mention to be in  consideration of any conveyance make or to be make by her of her share of her  father estate so that the settlement recite the article in part it be plain  the party design to pursue they only in that part and she swear by her answer  that he make her this settlement out of generosity and that he often tell her  so and as they have not prove that he insist upon her first convey or that he  ever desire her to do so though she be of age six year before he make the  settlement and he live two year after make the same it be a confirmation of  her answer but the thing itself speak his intention to waive it because his  only remedy be to take advantage of the condition to insist upon her convey  first and therefore if he have design to have have the advantage of it as it  be always in his power to have do so he will have claim the benefit of it then  this be a voluntary settlement make after marriage in consideration of her  portion and to bar her of dower and shall a volunteer under the husband claim  the benefit of that condition he think proper to waive but it be not pure a  voluntary settlement it be in consideration of her portion and of her wave her  dower which be of more value than the land settle so that it will have be  prudent in Mr mosely report Lucy to have make this settlement though he have  call on her to convey and she have refuse but they say she confirm the article  after the death of her husband when her infancy and coverture be over by  consent to the jointure and receive the rend and profit of it but if Mr Lucy  design this settlement without any view to her convey nay by way of discharge  her from it this will be no bar to her enjoy her own land and the say jane be  a infant when she be marry and the settlement be make long after the marriage  she be entitle to her election to insist on her dower or to claim the jointure  land and William Lucy who be the brother and heir to George Lucy never call  upon her to make her election well know that her dower out of the estate  descend to he from his brother will have amount to much more than the land  settle in jointure on her whereby he be a gainer so that though they both  acquiesce under the settlement no inference can be draw from thence that she  design to affirm the article and Mr more claim title by the conveyance make by  his wife who by the will of her father and as one of his coheir have a right  to one three part of his estate and have do no act to dispose of it to Mr  George Lucy and the plaintiff Lucy be only mosely report er p a executrix and  devisee to her husband William Lucy who be brother and heir of the say George  Lucy and be neither in blood or otherwise relate to the say jane or the family  of the Lucy save by be the wife of William Lucy and there appear no reason to  make a strain construction to give her any part of this estate contrary to the  intention both of the say jane and of the say George Lucy all case in equity  depend on circumstance and those that have be quote be not of weight because  they be different circumstance in the case of Lord Hereford the wife be not  first to convey but by way of a condition subsequent and if she do not she be  to lose a proportional part of her jointure which may induce the court to make  that decree which stand single and be contrary to the case of Lister and  Lister vern where the wife fortune consist in money due on bind and in land of  inheritance and the husband before his marriage make a adequate jointure on  his wife and die before the bind be alter or money receive and before any fine  levy and a bill be bring by his creditor after the death of the husband to  make these liable to his debt the same be dismiss and Mr Vernon seem to doubt  the legality of Lord Hereford case for he take notice of three precedent to  the contrary Mr solicitor general whether this estate be consider as real or  personal it still remain mrs more be if she have do nothing to make it her  first husband and this question will depend on the article mosely report the  settlement and upon her enjoyment of the estate after the death of Mr Lucy  they say Mr Lucy will be entitle though there be no article which I deny if a  man make a settlement general on his wife he will be entitle only to those  right of the wife the law give he but not to that part of her fortune he do  not reduce into possession for that will be make two law in the same kingdom  as to one thing without doubt person of full age may enter into such article  as shall make the husband a purchaser of the wife choose in action and she  only his trustee but here the wife be a infant and neither she or her trustee  have make any contract that the husband shall have her share of her father  estate but the husband only contract to make such a settlement on condition  she convey and this be a prudent and wise agreement that as the wife be not of  a age capable to contract she shall be leave to her liberty whether she will  convey or not when she come of age as to the settlement though it be say to be  make in pursuance of the article yet it only recite what the husband be to  perform and when it be say to be in consideration of marriage and of the pound  and so much of the article as relate to the convey the wife estate be not  mention it be a plain waiver by the husband of it and it be the interest of  those that come after he that he shall make this settlement though she do not  convey for her dower in the estate will have amount to more and her enjoy the  land be a assent indeed to the settlement and be a bar to her dower but not to  the article in Lord Hereford case the settlement be make in contemplation of  the fortune and adequate to it but it be not so here where it be at the  husband pleasure whether he will have make it or not without a previous  conveyance from the wife Mr will his reply the wife I think be bind by the  article and they be not waive and the case we mention make strong for we that  this part of the estate will belong to the husband though there be no article  because the settlement be make in view of her portion and the contrary  resolution that be take notice of by Mr Vernon in Lord Hereford case make that  case I think of great authority as they show it to have be decree on great  deliberation and after hear precedent against it but they say Mr Lucy have  waive the benefit of these article but their argument be mere conjectural if  one agree that on payment of so much money he will transfer so much stock  though the payment of the money be a condition precedent yet if he transfer  first shall it be say he waive the payment but they say the husband never  bring a bill to compel the wife to convey No because he can not have bind her  be a infant or feme covert either by mosely report the article or settlement  but she may have waive they after his death and bring a bill against his heir  to perform they the settlement S say to be make in performance of the article  but the whole be not recite because it be only necessary to show that he have  do every thing he have covenant to perform on his part and as she be not then  bind it be not requisite to recite what be to be do on her part but when she  come to convey it will have be as proper to recite what she be bind to do and  we say that her entry after his death be a confirmation of the article they  say only mosely report er p of the settlement but the settlement be make in  pursuance of the article and Mr Lucy the heir can not have disturb her can not  have force her to make her election whether she will have the settle land or  her dower and the Lord chancellor order and decree that as to this point the  plaintiff bill in the original cause shall be dismiss and on the cross bill it  be order and decree that a account shall be take of the trust estate under the  will of the say George Bohun since the decease of the say George Lucy and one  three part of the say rend and profit be to be pay to the plaintiff more and  that a commission shall issue to divide the estate into three and that after  such partition make the survive trustee shall convey one three to the  defendant more and his heir this decree be affirm in parliament on Tuesday  April the saint December the second seal after Michaelmas term motion