case tempt Talbot case STREATFIELD versus STREATFIELD see wh t l c that edn  Cooper v Cooper lr hl in re Vardons trust Ch d in re Lord Chesham Ch d the  ancestor by article previous to his marriage agree to settle certain land to  the use of himself and his intend wife remainder to the issue of the marriage  in the usual manner he make a deed not pursuant to the article and have a son  and two daughter and upon the marriage of his son settle other land in  consideration of this last marriage in the usual manner and levy a fine of the  former land to the use of himself in fee and then make his will and devise  part of the former land to his two daughter and the rest of his real estate to  trustee to the use of his grandson for life with usual remainder and with  direction out of the profit to educate the grandson and to place out the rest  of the profit to be pay to the grandson at twentyone year of age and if he do  not attain that age to be pay to his say daughter their executor c the  grandson be not to be bind by the deed which do not case tempt Talbot er p  pursue the article but then he shall make his election when he come of age and  if he choose to take land which ought to have be settle the daughter his ant  shall be reprised out of the land devise to he Thomas Streatfield the  plaintiff grandfather by article previous to his marriage may agree to settle  land in Sevenoake to the use of himself and Martha his intend wife for their  life and the life of the survivor and after the survivor decease to the use of  the heir of the body of he the say Thomas on his wife beget with other  remainder over the marriage soon after take effect and by deed date April  recite the foresay article he settle his land at Sevenoake to the use of  himself and his wife for their life and the life of the long liver of they  without impeachment of waste during the life of Thomas and after their decease  to the use of the heir of the body of the say Thomas on the say Martha to be  beget and for want of such issue remainder to the right heir of Thomas they  have issue Thomas their only son and two daughter Margaret and Martha in the  year upon the marriage of Thomas the son the father settle other land of which  he be seize in fee of the yearly value of pound to the use of his son for life  remainder to the daughter of the marriage remainder in fee to the son with a  power to raise pound for young child and the son death Thomas the father in  the year levy a fine of the land comprise in the deed of to the use of himself  in fee and in the year make his will and thereby devise part of those land to  his two daughter Margaret and Martha and also all other his manor message land  tenement and hereditament whatsoever either in possession reversioner  remainder case tempt Talbot not therein before give or dispose of situate in  the county of ken Surrey or elsewhere to trustee in trust for the plaintiff  Thomas his grandson for life remainder to his first and other son in tail male  remainder to his daughter in tail remainder to Margaret and Martha with  several remainder over then come this clause and my will and meaning far be  and I do hereby authorize and appoint the trustee and the survivor of they to  receive the rend and profit of the say estate to they devise and out of the  same to allow and expend for the education of my grandson Thomas so much as  they shall think fit during his minority and that the trustee shall place out  at interest such money arise out of the rend and profit of the say estate  which say money with interest arise therefrom my will be be pay to my grandson  Thomas at his age of twentyone year if he so long live or in case he die  before that age then that the same shall be pay to my two daughter Margaret  and Martha their executor c the testator die in the year the question be  whether the settlement in be a proper execution of the article of and if not  whether the general devise to the plaintiff shall be take as a satisfaction  for what he be entitle to under the article of Mr solicitor general Mr brown  Mr fazakerley and Mr Noel argue for the plaintiff that although in a will or  article execute Thomas the grandfather will have be tenant in tail yet the  article of be but executory this court will interpose by carry they into  execution in the strict manner and not leave it in his power to destroy the  use as soon as raise that accord to that rule the deed of be certain no  execution of the article in equity for though it be in the very word yet do it  not at all answer case tempt Talbot the intent of the article and come  therefore within the rule of Trevor and trevor case Abr Eq can p will S c that  the settlement in upon Thomas the son marriage although it be of land of great  value than those contain in the article can never be think a satisfaction for  they there be no reference at all in it to the article and it be make only in  consideration of the son marriage and for settle a jointure upon his wife and  make a competent provision for the issue all which be new consideration no way  relative to the article and where there be a express consideration mention in  a deed there can be no averment of another not contain therein that nothing  can be take for a satisfaction but what be in its nature agreeable to the  thing which be to be do be hold in Lechmere and lady Lechmeres case ante but  in this case Thomas the son be by the article to have be tenant in tail but by  the settlement he be to be but tenant for life which be give he a less estate  for a great and consequent not to be deem a satisfaction without a special  acceptance of it as such accord to the rule in Pinnels case   where it be hold  that payment of a lesser sum can never be a satisfaction for a great unless  upon case tempt Talbot er p a special circumstance show the intent as payment  at a early day c that the will can no more be take for a satisfaction than the  settlement and upon the same reason for by it the plaintiff be no more than  tenant for life and even that not absolute the profit be direct by the  testator to be accumulate until the plaintiff attain his age of twentyone and  then to be pay to he but if he die before that age they be give away to the  testator daughter and when he do arrive to that age he be to be but bare  tenant for life and even not that without impeachment of waste beside if the  will be construe a satisfaction as against the case tempt Talbot plaintiff so  it must likewise be as to all the other claim under the article whereas the  plaintiff sister who be entitle under the article can never take any thing  under this will but be whole exclude the general devise of all his manor land  c in possession reversion or remainder will not alter the case for where the  testator have estate sufficient to satisfy such general word he shall never be  construe to have intend to pass that which he have no right to dispose of and  the give of which will work a wrong that he have no right to dispose of the  land contain in the article be evident from what have be already say and have  not this be upon his own marriage but in any other settlement he have be a  trustee for his son and then have make his will in the same word that be have  do here sure that trustestate will never have pass and there be no difference  whether the trust be express or whether it arise by implication of equity it  will be a absurdity to construe these word to pass away a three person estate  a grant of all one good will not pass those which he have in auter law so if  he have have a mortgage in fee such general word will not have pass it from  the devisee of the personal estate to the devisee of the land in rise and  bartlett case the authority of which case have be refer to and acknowledge in  day v trigg p will Davis v Gibbs p W by Lord Hardwicke in chapman v heart Ves  Knotsford v gardener atk also in pistol v Richardson in b r hill term report  by Mr Cox in his note upon Addis v clement p will say vide turner v Husler bro  Charles Rep in which case Lord chief baron Eyre in the absence of the Lord  chancellor though report to say he do not mean to deny the authority of rise v  Bartlett determine that by a devise of land tenement and tithe the testator  have tithe in fee and likewise tithe by lease perpetual renewable the  leasehold as well as the freehold tithe pass cro car a general devise of all  his land and tenement have both freehold and leasehold be hold to pass the  freehold land only and in Harwood and child case hear by the present Lord  chancellor march a devise of all his land for payment of debt have both  freehold and copyhold but no surrender make of the copyhold to the use of his  will be hold not to pass the copyhold nor can the case of Duffield versus  smith vern noise versus mordant be object for in the former the decree be  reverse upon account of the sister be heir at law and disinherit which be the  present case for here they will take a beneficial interest from the plaintiff  who be heir at law to his grandfather and give he but a very small one in its  room and in the latter case the father case tempt Talbot be tenant in tail of  part have power to bar it by fine in which respect he may well be look upon as  a proprietor of the whole but if he be decree to make his election it must be  do present for then it be that he be to take whereas he can by law make his  election be but a infant and if so the court must compel he to that which the  law disable he from do Mr attorneygeneral Mr strange and Mr Peer William argue  for the defendant that this court will not in all case whatever decree a  specific performance but will in some particular case leave the party to his  remedy at law upon the covenant that these article be make so long ago as in  and Thomas the son who be the person entitle to have they carry into execution  live until fortyfive year after without ever desire to have they execute and  that the intent of those article do not seem to go any far than the settle the  jointure on the wife and the make Thomas the grandfather tenant in tail the  word be to provide for the wife but no mention make of the issue but whoever  come into equity must do equity and therefore if the plaintiff will take  advantage of those article he must make a compensation for it out of the will  which give he a estate upon a plain supposal that he shall take nothing by the  article but shall never be at liberty to take a great benefit under the will  and waive that part which make against he to the prejudice of a three person  the whole will must be acquiesce under or no part of it at all accord to the  resolution in noise and mordant case which go upon the reason of a entire  compliance with the testator intent in take entire under the will and not upon  the suppose reason of his be proprietor by have it in his power to levy a fine  the like resolution be in the case of hearne versus hearne where a by marriage  article agree to leave his wife pound and her jewel c but it be declare that  notwithstanding the article she shall not be debar of any thing he shall give  her by will a by will make a disposition of his whole estate and give his wife  pound decree the wife must either waive the article or the will and not claim  the benefit of both vern in that of Cowper versus cotton February at the roll  where a freeman of London devise his estate to trustee for the raise pound for  his four daughter and make case tempt Talbot a disposition of the surplus and  hold that they shall stand either by the will or by the custom and if by the  former that they shall not defeat the devise over that in case where general  word in a will have be restrain from pass all which the testator have it case  tempt Talbot er p have be upon the testator intention manifest appear in the  will itself not to pass so much as the generality of his word will comprehend  but in the present case his intent plain appear to pass all nor will that  intent be satisfy by say that he have a reversion of the land comprise in the  article since he will have be tenant in tail under the article and only for  life under the will Lord chancellor it can be doubt but that upon application  to this court for the carry into execution the article of the court will have  decree it to be do in the strict manner and will never leave it in the husband  power to defeat and annul every thing he have be do and the nature of the  provision be strong enough for this purpose without any express word and I  must therefore consider what be the operation of the deed of which be declare  to be performance of the true intent and meaning of the article if it be so  all be well but if it be not it only show that the party intend it so but be  mistake so be the case of west v Erissey bro PC d ed where the article be by  the house of lord decree to be make good and the same must be do in this case  if nothing intervene to prevent it the settlement in whereby the grandfather  settle other land upon his son marriage have be call a satisfaction for those  article but to I it appear neither a actual satisfaction nor to have be intend  as such the grandfather have do that in which he apprehend to be a  satisfaction for the article but this deed proceed upon consideration quite  different from those of the article the person claim under this be purchaser  for a consideration entire new the limitation be entire different and  therefore it will be absurd to call this a satisfaction for another thing it  have nothing case tempt Talbot to do with and to which it be no way relative  the next thing to be consider be the fine levy of the land in question in the  year by the grandfather the intent whereof be to have the absolute ownership  of those land in he and one reason why no application have be make till now to  have those article carry into execution may be that during the grandfather  life no body be entitle to any thing in possession under they then come the  will in whereby he give part of those land settle in to his daughter other by  show his apprehension to be that by a fine he have give himself a power of  dispose of they and it will be a very strain construction to say that he  intend this not as a present devise to his daughter but to take effect out of  the reversion of the land comprise in the article the next thing be the devise  to the trustee for his grandson the plaintiff upon his attain the age of  twentyone and the question here be whether the general word shall ever pass  land not capable of the limitation in the will and to that have be cite rise  and bartlett case cro car and other case but they can influence the present  case for the testator have legal a power to dispose of those land and though  they may be affect with a trust in equity yet that can be suppose to lie in  his conuzance he have do a act to enable himself to dispose of these land and  it differ from the case that be put of a express trust and the trustee devise  all his land for there the trustee can be ignorant that the land which he hold  in trust be not his own but what make his intent clear be that he have devise  part of these land to his daughter and he must have look upon himself as  master of the one part as well as the other I therefore think his intent be  clear to pass these land by the will and if so we must now consider what will  be the effect of this will if the plaintiff have be upon the land of the  article then he may stand to they if he please but when a man take upon he to  devise what he have no power over upon a supposition that his will will be  case tempt Talbot acquiesce under this court compel the devisee if he will  take advantage of the will to take entire but not partial under it as be do in  noise and mordant case vern S c where a have two daughter b and c devise  feesimple land to b and land which be settle upon he in tail to c hold if b  will claim a share of the entail land under the settlement she must quit the  feesimple land for the testator have dispose of his whole estate among his  child what he give they be upon a imply condition they shall release to each  other there be a tacit condition annex to all devise of this nature that the  devisee do not disturb the disposition which the devisor have make so be the  several case that have be decree upon the custom of London the only difficulty  in the present case be that what be give to the plaintiff be precarious  nothing be give to he if he die before twentyone and if after then but a  estate for life and that he appear before the court in the favourable light of  be heir at law but this will not alter the ease the estate which the testator  have give he be undoubted in his power he have give they to trustee until his  grandson attain twentyone and have dispose of they in such a manner as that  there can never be any undisposed residue to go to the plaintiff as heir at  law and sure it be as much in the power of the court to make this bequest thus  limit to be a satisfaction if the party case tempt Talbot er p will stand to  the will as in the other case indeed if he take by the will there be nothing  to make satisfaction to his sister for their general chance under the article  but that be because nothing be leave they by the will and they can be say to  be quite destitute of provision since it be just and reasonable that they  shall be maintain by their mother who be entitle to a large and ample  provision by her marriage settlement nor can what be devise to the plaintiff  be look upon as intend by the testator to go towards the maintenance of young  child for if the plaintiff die before twentyone then all the profit already  receive be to go to his ant and so by that construction I must take the  maintenance out of their estate and oblige they to contribute to the  maintenance of distant relation videlicet niece at the same time that the  mother who have a ample provision will be leave at large and under no tie of  maintain her own child and so decree the plaintiff to have six month after he  come of age to make his election whether case tempt Talbot he will stand to  the will or the article and if he make his election to stand to the latter  then so much of the other land devise to he as will amount to the value of the  land comprise in the article and which be devise to Margaret and Martha to be  convey to they in fee in this and many other case of the same nature the court  of chancery have proceed upon a principle of regard to the end and  consideration of the settlement and the intent of the trust as the same be in  the original contemplation of the party and accord in the decree the execution  of marriage article or trust in strict settlement where the article by legal  construction give a estate of inheritance to husband and wife the court have  be necessary oblige to have recourse to a construction beyond the legal  operation of the word in which the article or trust be express tone v Laughlon  Eq Cas Abr pl Trevor v Trevor p will cusack v cusack bro parliament Cas d  Edward r bro PC Nandlick v Wilkes Eq Cas Abr c honour v honour p will Robert v  Kingsley Ves leg v Goldwire ante Burton v Hastings pale yellow Eq Rep west v  Erissey p will d Edward bro PC heart v Heddlehurst atk Powell v price p will