case MIDDLETON against prior one on marriage give bind to settle a estate of  inheritance of clear pound ayear to the use of himself for life remainder to  his wife for life remainder to the heir of their body remainder to his own  right heir he afterward settle a rentcharge a perpetual annuity which he be  entitle to Payable out of the custom at hull hold a performance of the  agreement see the note of this case in the appendix I where the judgement be  give more full lib Reg b foe b at the roll that and that Dec Thomas Fairfax  upon his marriage in enter into a bind in the penalty of pound with condition  that he will within two year settle and assure a estate of inheritance in  feesimple of the clear yearly value of pound to the use follow that be to say  to the use of himself for life remainder to his intend wife for life remainder  to the heir of their body remainder to his own right heir Thomas Fairfax be at  that time seize of land in the county of York of other land in the county of  the city of York and of the perpetuity of a pension or annuity of pound under  a grant from king Charles the second Payable out of the custom at hull ambler  er p by indentLire d march between Fairfax and his wife of the one part and  George Phipps and Samuel Fleming of the other part recite that he have agree  that his shall have a annuity or rentcharge of pound ayear for her life  instead of land and for that purpose he have make his will and charge his land  in the county of York with the say annuity or rentcharge he covenant not to  revoke his say Gwill by lease and release d and d September between Fairfax  and his wife of the one part and Puleyne and Tuers of the other part after  recite the bind and agreement Fairfax convey to puleyne and tire his land in  the county of York and in the county of the city of York and also the pension  to the use of himself for life and after his decease to the intent and purpose  that his wife shall receive ambler for her life one annuity or rentcharge in  lieu of her jointure and subject thereto to the intent and purpose that the  surplus rend shall be pay as he shall appoint and for want of appointment  shall go to his right heir and from and after the death of his wife to the  intent and purpose that the heir of his body by his say wife shall receive the  say yearly rentcharge for ever and in default of such issue as to the land  tenement and hereditament to such use as he shall appoint and for want of a  ointment to his own right heir Fairfax afterward make his will and devise his  land the wife die and afterward Thomas Fairfax die leave plaintiff mrs middle  tun the only issue of the marriage plaintiff contract in with defendant Perrot  for sale of the land in the county of the city of York bill to have land of  pound ayear settle upon the plaintiff in tail pursuant to the bind and as  against Perrot to have the contract perform two question arise saint whether  the settlement of be a performance of the condition of the bind d whether the  estate in the ainsty pass by the will under the devise of all his land c in  the county of York as to the d his honour say he will give no opinion it be  proper to be try by a issue devisavit well non as to the saint question it be  argue for the plaintiff that the condition of the bind can be satisfy by  nothing but a settlement of land that there be no limitation of the fee of the  rentcharge the plaintiff mrs Middleton do not take so good a estate in the  rentcharge as she will in land that by suffer a recovery of land she will bar  the remainder and take a absolute fee but if she be to ambler suffer a  recovery of the rentcharge she will only take a base fee determinable on  failure of issue sir Thomas clarke master of the roll be of opinion the  settlement of the rentcharge be a performance of the condition of the bind it  be so of the word which be a estate of inheritance say that a rentcharge be  not so advantageous that the plaintiff can get the fee be of opinion it be  more advantageous than land not subject to tax repair or loss of tenant more  valuable to be buy it be not a objection that the plaintiff can get the fee it  be not the intention she shall the agreement be more likely to tale place by  the subsequent limitation have effect and not liable to be defeat Thwaytes v  day vern and take notice of by baron Powell and chief justice Treby in the  earl of bath case at the end of Charles Cas be exact in point t make a  settlement of land on himself and wife for their life and then to such child  and child and as in vern in such share and proportion as he shall appoint and  as cite by baron Powell for such estate as he shall appoint and afterward by  will devise a rentcharge out of those land to his young son in strict  settlement c and hold to be a good execution of the power Q whether the case  be applicable note there be a appeal from this decree to Lord chancellor but  the cause be afterward compromise ambler er p