case henry harvey and catherine his wife and Ann Clutton widow two of the  daughter of sir thomas aston Bart decease plaintiff lady aston widow of the  say sir thomas aston sir thomas aston Bart son and heir of sir thomas decease  sir John cheshire henry wright and Andrew Kendrick esqr defendant April that  and may d see in re more Ch d can tempt Talb S c Com Rep S c vin pl S c vin pl  SC see the note at the end of this case the trust of a term under a settlement  be that if there shall be two or more daughter of the marriage then the  trustee be to raise and pay to each the sum of pound if she marry with the  consent of her mother if live and a widow if not then with the consent of the  trustee or the survivor of they his executor administrator or assign and in  case any of the daughter die before the portion be pay that it shall not go to  the executor but the estate shall be exonerate thereof or if raise shall go to  he on who the reversion of the premise be limit to descend the father  afterward by his will give the far sum of pound to each of his daughter as a  augmentation of their portion subject to the same condition c as the original  portion and if any of the daughter die before the original portion become  Payable then he will that this pound shall not be pay to her executor but that  his lady and executrix shall have the residuum of this money and make her  residuary legatee the plaintiff Harvey marry one of the daughter without  consent and Clutton another also without consent they be not entitle to the  portion under the settlement or will this cause come on upon a petition to  discharge a order make b the master of the roll sir Joseph Jekyll or raise the  fortune of the plaintiff the case be this sir Thomas Aston by lease and  release limit his estate to the use of himself for life then as to part to  lady Aston for life for her jointure then to his first and other son in tail  male and for want of such issue to trustee for the term of year with power of  revocation this term be by a codicil make to take effect immediate after his  death and before the estate of the son and declare the trust of the term to be  that if it shall happen that he shall have no son but two daughter live at the  time of his death then the trustee out of the rend and profit of the say e  state shall raise and pay to the young of such daughter pound if she marry  with the consent of her mother if live and continue his widow if not then with  the consent of the trustee or the survivor oh f they his executor  administrator or assign and shall pay to such daughter the yearly sum of pound  for her maintenance till her marriage with such consent and in case it shall  happen that he shall have a son and two or more daughter then that the trustee  shall raise and pay to each of such daughter the sum of pound if she marry  with such consent as aforesaid and till such marriage shall pay each of such  daughter the yearly sum of pound till such daughter shall attain her age of  and afterward the sum of pound for her maintenance as long as lady Aston shall  live and from and after her death shall pay to each the yearly sum of pound  till their atkins marriage and in case any of the say daughter shall happen to  die before the say portion be pay that it shall not go to her executor but the  estate shall be exonerate thereof or if raise shall go to he on who the  reversion of the premise be limit to descend proviso that the term shall cease  in case of no son or daughter or in case of the death of all the young son and  of all the daughter without marriage N B here the word with consent be not add  afterward by will sir Thomas Aston take notice of the settlement direct tli t  atkins er p out of his personal estate there shall be pay to each of his  daughter the further sum of pound as and for a augmentation of their portion  subject to the same condition proviso and limitation as their original portion  and in case any of the daughter shall die before the original portion become  Payable then his will be that this legacy of pound shall not be pay to her  executor but that his lady and executrix shall have the residuum of this money  if any and make her residuary legatee and guardian of his child sir Thomas die  leave eight daughter and soon after his death a bill be exhibit in this court  to have the will prove and the trust perform and it be decree that the trustee  shall raise the maintenance immediate with liberty to the party to apply for  further direction in the plaintiff Harvey marry one of the daughter without  consent and Clutton marry another without consent and a bill of revivor be  file to which lady Aston answer that she have before such marriage give notice  to the plaintiff that they will not be entitle to their portion in case they  marry without her consent and that she can not in conscience consent to her  daughter marriage with the plaintiff Harvey because he can not make her any  suitable settlement but that notwithstanding this caution they both marry  without her consent and upon a hear at the roll it be decree that the  plaintiff be well entitle both to their original and additional fortune and a  order pronounce by his honour accord see the case as report in case tempt Talb  the present application be make by way of petition to discharge that order  Lord chancellor think it a case of great doubt and difficulty declare that he  will be assist by Lord chief justice lee Lord chief justice will and Mr  justice comens and appoint the saint of Nov for the hear thereof when it come  on accord atkins Mr attorney general for the plaintiff argue that that be  restraint in the present case ought not to be consider as a necessary  qualification but that it ought at all event to be raise and pay whenever the  daughter marry that while alive parent have a natural control over their child  but though the law allow they such a power to restrain the child in marriage  yet it be not to be delegate to any other person and it be absurd to say that  this power shall descend to any assignee whatsoever or executor or  administrator parent may be fond of extend their power even after their child  come of age but the law leaves marriage as free as possible and therefore do  not encourage parent in this extent of their power Swinb part the that that  chapter God Orph leg the only difference between the civil law and we be that  where there be no devise over we call it a devise in terror but the civil law  say such a condition be absolute void jervois v duke vern Bellasis v ermine  Charles can it have be insist that this be a condition precedent and the  legacy can not vest because the condition have not be perform but allow if it  have be a subsequent condition it may have be otherwise he argue that in these  case the court have make no difference between condition precedent and  subsequent Gresle v Luther more in the present case the thing that be to be do  be marriage and in all cage of condition precedent there must be performance  or the estate can never vest here the most material part have be perform which  be marriage and consequent the estate vest Semphill v Baily Prec in Chan if  any of my daughter shall die before the original portion become Payable then  he will that this legacy of pound shall not be pay to her executor I that lady  Aston his executrix shall have the residuum of the money this can be call a  devise over which be only say that it shall fall into the residuum of the  personal estate and will have do so if this have not be provide for so much as  to the additional portion next as to the original portion the word which be to  make a limitation over here be different from the word in the will in case any  of the say daughter shall happen to die before the say portion be pay that it  shall not go to her executor but the estate shall be exonerate thereof or if  raise shall go to Mm on who the reversion of the premise be limit to descend  it have be object that this be a case where the money be to be raise out of  the land and the civil law have nothing to do with it atkins er p this will be  a good objection if it be a question to be determine at commonlaw in a  ejectment or mere a question at commonlaw but it be manifest a creature of  equity for atkins it be concern the execution of a trust which be not a proper  subject for the commonlaw to enter into the principle and rule in this case  which govern a court of equity must be consistent with similar case though  this money be to be raise out of land yet it ought to be consider as money and  to be govern by the same rule as money if money be to be turn into land it  shall be devise no other way nor consider any other way but as land see Guidot  v Guidot post vol here the money be to be pay out of this land into the hand  of executor and the very fund out of which the money be to be raise become a  personalty for though it be a term of inheritance yet it be personal estate  therefore neither in law nor equity be it to be consider as land and equity  will reverse the very order of thing to come at the intention the heir at law  be favour upon many occasion but never to the prejudice of young child where  the heir be otherwise sufficient provide for and though the father here have  annex term to the plaintiff take of their portion yet they be term which be  contrary to the policy of the land and contrary to the law and absolute void  the great fund out of which portion be to arise be land and therefore  restriction of this kind which make this fund precarious ought to be  discountenance especial as they likewise discourage marriage which be a much  more probable way of introduce a virtuous education than if they be bear out  of wedlock I will not say the mother will abuse this power but if she marry it  devolve on the trustee and though they be man of honour and will not believe  injure the daughter yet if they die it go to executor or administrator and  even assign who may possible be knave and fool and consequent very improper to  be entrust with such power the court have already determine that this be  contrary to the common policy and have fix bind by precedent from which they  will not depart Fleming v Walgrave Chan Cas Aston v Aston vern case of  forfeiture never receive any countenance in this court for in all condition  that be a restraint upon marriage if not perform there must be a express  limitation over to some other person or it be no forfeiture now in this part  of the case it will equal have sink in the land for the benefit of the heir if  it have not be so express in word dr strahan of the same side I shall state  the rule of the civil law and consider it first general as a provision for  daughter the civil law have apportion a father estate which it be not in his  power to take away if he shall give it away he must assign some satisfactory  reason he can not clog it or put any restraint upon marriage atkins the writ  de rational part will do you much good show the civil law have be receive and  countenance in England with regard to marriage portion the civil law have a  particular law for that purpose cod lib title de dowry promission to make  naked pollicilatione law dig lib title de rite a marriage law de father cogend  in marriage established himself who book quos to have in potestate in uria  prohibueri to lead wife well to veil oneself well who dowry dare non volunt ex  constitution of a deity Severi antonini per proconsul prsides an office to  drive together in marriage established himself to endow if parent have be  allow to annex condition to portion it may perhaps have be a unreasonable one  and have frustrate the design of portion this be contrary to the policy of the  republic of Rome the law three liberor marriage ought to be free liberan to  withhold be wedlock and it be a general rule in the civil law where a  condition be annex to a legacy by way of total prohibition oh marriage that it  be absolute void jacobus Gothofrdus de spring law courtesy p mention the  Julian law de patripropria in the time of Augustus that if any person add a  restraint to marriage let they be free from the condition they endeavour then  td find out condition which will not in direct word restrain marriage but in  the implication will have the same effect by make the consent of a three  person the condition of marry this atkins er p be declare to be elude the  design of the Julian law dig lib title de creating indication et cause manner  the dawn queen in will to scratch law si arbitration titii seia to veil  oneself of me hres ei farm dato live firebrand etian without arbitration titii  she to veil oneself bequest to take without effort to answer be eamque law  opinion to see ne quod entirely marriage hindrance below c this be Papinians  determination who be look upon to be the bright of all the Roman lawyer and  cujacius in his comment upon this very law say his authority be of great  weight and have such regard pay toit in our court that condition restrain  marriage be hold by we upon his authority to be absolute void travelingbag lib  n Grassius lib n Covarruvius n take a difference between marriage with the  consent and the advice of another Sanchez de sanct matrimon sacrament discuss  n non so much condition non ineund marriage throw back a legato send etian  condition ineund arbitration v et general consensus third et ratio be because  who holding general consensus vet freedom foreign to strive for holding to  follow and ita marriage freedom impedie Swinbourn part the that sec lie it  down as a general rule that all condition against marriage be unlawful  contrary to the procreation of child repugnant to the law of nature and  detrimental to the commonwealth in the present case lady Aston will have the  benefit who be the person to refuse dig lib title de bequest trust undertaking  law parag bequest in another will to put down to be able in hredis on to be  able the heir in this case be to have the benefit also by refusal atkins and  therefore never prsumeretur velle to bind up and ought not to receive any  countenance the emperor Justinian cod lib title communia de bequest trust  undertaking de in remember mission to lift say rectius be therefore to tax in  remember indeed mission inside to destroy omnibus yes tam legatee how trust  commissioner One naturan to place upon et non solum personal act prstare send  et in remember quatenus the dawn liceat easden res sive per quodcumque genus  bequest sive per fideicommissum to be derelict to assert a claim to in  remember action to put in place where a condition be null and void the  question will be then whether any devise over or limitation will be good when  the validity of the condition which be annex to the legacy be take off it  become absolute and no devise over can affect it diq lib title de condition  demonstrate law how often sub condition woman to send with a commission si non  to veil oneself et the same fideicommissum sit ut firebrand to set up again si  to veil oneself commode to cause to stand et si to veil oneself bequest she to  strive for posse et non be cogend fideicommissum prstare the condition be void  in law the legacy be discharge of it suppose such consent shall be necessary  yet it must be a reasonable objection to the marriage that be intend by this  condition here the plaintiff Mr Harvey have pound per and in possession and as  much in reversion and be ready and able to make a proper settlement and  therefore there can be no reasonable ground for lady astons refusal Mr brown  of the same side as marriage be the only thing that be real and substantial in  the consideration of the party that have be perform and the rest be in terror  the whole direction to raise the portion be upon the consent of the mother and  not a word of the father there be several instance which may be put where this  settlement can not take place suppose lady Aston shall have be visit by the  hand of God and have become a lunatic how can her consent have be have or  suppose there have be a assignment of the term and a administrator of the  trustee at the same time who consent be necessary to be have as it stand on  the foot of the settlement it be a mere penalty and only in terror here the  child may possible wait the great part of their life for the consent of person  to who they be entire stranger in Mod Lord chief justice hale take notice of a  case cite by the defendant counsel in fry v porter where the consent be to he  have in write and though no such consent yet decree a good marriage and his  lordship say there be great equity it shall be so because say he the write  consent be only a provident circumstance and wisdom atkins of the devisor for  the more firm oblige the party to ask consent which the devisor consider may  be pretend to he have by slight word and in the earl of Salisbury v Bennet  vern there be a marriage contrary to the express term of the condition on  which the daughter atkins er p be to take and yet the whole portion decree in  Jackson v Ferrand vern a portion be decree to be raise out of land though the  devisee die before the time appoint for the payment the commonlaw have pay a  great regard to the rule of the ecclesiastical court with respect to case of  restriction on marriage more Gresley v Luther James I mention this to show  that these sort of case have be very ancient take notice of for Mr justice  winch in give his opinion cite a case before this where there be a condition  annex to a daughter legacy that she marry with the assent of the mother and  she sue in the ecclesiastical court for the legacy it be plead in bar that she  do not marry with the mother assent and notwithstanding this she have sentence  for the legacy the case of portion be what this court have exercise a peculiar  jurisdiction over contrary to the other side of westminsterhall and though it  be a rule be able sequitur law that must be confine to case which arise from a  legal point and incidental come before the court a mortgage in equity be not  consider as a revocation of a will though it be at law nor will this court  consider a mortgage as land nor allow it to be irrevocable I put it upon the  gentleman of the other side to show where this court have suffer penalty to  take effect which be in restraint of marriage it be not say any where in the  deed to who the portion shall go over provide the daughter marry without such  consent and in Hayward v paget Nov it be hold a general devise of the residuum  be the same as no devise over at all the money give by the will be as a  augmentation of the daughter portion and here a legacy be give to a person  upon marriage and the legatee marry accord it vest that ugh without the  consent of a particular person Semphill v baily Prec in Chanc and where a  person who take it over take it as a residuary legatee it be plain  distinguishable from the case where it be devise over to a specific legatee  and therefore this case must fall within the reason of those determination  where the devise be in terror only dr Andrews for the defendant deed be  undoubted of a strict nature than a will and as the will in the present case  plain refer to a deed it must be construe with the same strictness as a deed  atkins it be a legacy uncertain but to be make certain by a fact for it be not  daughter by name but to a daughter only who marry with the consent of the  mother and no body can take but those who bring themselves within the  description I do maintain that this be a legacy which have never vest because  the condition on which it be give by the testator have not be perform and  accord to the law of the twelve table will testator in will totum compose and  though a prohibition of marriage have not be allow yet the civil law permit a  restraint upon it cod lib title law cum de marriage pvellam to express grief  nec inter protector et mother relative de to pluck out going to be husband it  agrees together agreed arbitration prsidis to conquer before relative be Swinb  part sec par when that which be give with condition of not marry be to be  distribute in pious use in case the condition be not observe here the  condition be not reject as unlawful and if he marry he lose his legacy the  reason be for that the law do more favour piety than the liberty to marry a  variance between the old law and the law in justinian time vide Institut lib  light de bequest sect in the old law a legacy restrain marriage void but in  the latter law such legacy notwithstanding the condition annex shall be equal  subject to the condition as any other legacy will be that be leave subject to  a condition the rule in our court be that the civil law so far as be  consistent with the law a king of Illyria shall prevail Grotius lie it down  that after the death of the father the mother be entitle to the same obedience  from the child as the father find upon the five commandment the law three  liberor be not in force with we if a Roman have three child and not able to  maintain they the commonwealth maintain they but the public here take no  notice the parish must support they in the Roman law they provide not for  natural child but in our law if a man marry though he have lawful child yet he  may dispose of his estate to the illegitimate issue in prejudice of the  legitimate by the Roman law the portion be the woman distinct property here it  belong to the husband and here it shall be consider as if the father have say  I give pound to such a begin as shall marry my daughter with the consent of  the mother atkins er p Mr fazakerley of counsel also for the defendant this  court will consider the consent to be a material ingredient and without which  it can not be a marriage consistent with the intention either of the deed or  devise it be say this must be construe in terror but I hope the court will not  construe man intention into such a phantom terror for if this be the know  construction of this court will any man be so void of understanding and so  trifle as to make use of a restriction which he be sensible will be void a  restriction which can hardly meet with any atkins person so weak and ignorant  as to be terrify at it as to the case of Jackson v farrand in vern it be  doubIful if that case will be determine as it now stand if it be to be reheard  if this court will construe the intention contrary to the express word it be  impossible they can operate at all the law will not make a exposition against  the express word and intention of the party which stand with the rule of law  how often in word no one be ambiguity of meaning there no one exhibition  contra word to press out fiend be the law of nature be so strong upon father  that the national law have not oblige they to make any provision but leave it  entire to their discretion and have give up the child in this respect to the  absolute power of the father who so proper to make a prudent provision for  child as the father who know the disposition and temper of each child  different restriction may be necessary in one case which may be unnecessary in  another the that of car cap sect have give a father a absolute power to  dispose of the guardianship of his child until the age of which show the sense  of the legislature as to parental authority by the custom of the city of  London whoever marry a orphan without the proper consent though live entire  out of their jurisdiction yet he be not entitle to the portion will this  custom be permit if it absolute contradict the know rule of law as be pretend  by the other side this court only upon a bill file and affidavit produce that  a disadvantageous marriage be apprehend will prevent the person from marry  without the leave of the court it have be say wherever there be a condition  that be malum in see it will make it void and several instance have be put as  to murder a person or where it be repugnant to a grant but this be a  collateral thing and not prevent a marriage can never be construe or bring  within this rule they have not cite one authority out of the commonlaw and  with respect to legacy your lordship have a concurrent jurisdiction with the  ecclesiastical court and if this court follow their rule in similar case it be  for this reason that there may be a conformity in the resolution and that the  subject may have the same measure of justice in which court soever he sue Abr  of can in Eq where a legacy charge upon land be once vest it become money and  go to the person to who it be give but before it be vest it be a common la  charge and be not for the consideration of the civil law or the ecclesiastical  court a trust term must be consider as a parcel of the inheritance till the  purpose for which it be raise be satisfy and the legacy actual vest Ch can  Fleming v Walgrave be not at all to the present purpose the case be very short  and very obscure state the dispute there be beside upon a mere personal trust  the case in Finchs report fol too much honour by be call Lord nottingham  report there if the daughter never marry she may be allow to improve the  estate as there be no probability of her marriage at that time and as she have  the absolute property if she do not marry at all upon give security that she  will comply with the term she be allow to improve atkins there be no law to  prevent widow from marry but they may marry ad infinitum and yet condition in  a will to restrain they from marry have be hold to be bind though young enough  to do great service to the public in point of child the civil law be never  receive so far as to control property here but the construction with regard to  charge upon land have always be adapt to the rule and distinction of our own  law in personal legacy indeed it may be otherwise and possible may be  influence by the rule of the civil law but money which be to be raise out of a  trust upon land can be say to exist till the condition for which the trust be  raise be comply with and can never be call debt is owed in prsenti to loosen  in going to be this rule be applicable indeed to a bind because there the debt  atkins er p immediate commence from the execution but the defeazance be not to  take place till a future day we insist that this never vest because it be only  Payable upon marriage with consent and therefore all that have be say with  relation to a for feiture be a argument without any conclusion second as to  the will if there have be no word but augmentation it can not be take without  a compliance with the term in the original portion in the first place a case  determine before the master of the roll sir Joseph Jekyll have be insist on  but as there be two case of equal authority be both decide by the same person  which be adjudge different way the question be still as much open as if this  have be a case prim impression be not the testator intention to give it over  equal clear by direct it shall sink in the personal estate where he have  appoint a residuary legatee who will consequent have the benefit as if he have  actual in word and by name give it to the residuary legatee here be a  provision of pound per and to the daughter during the life of the mother and  after her death pound which they will still be entitle to though they have  marry contrary to the restriction and therefore the argument of their be  destitute fall to the ground there never have be any case in the  ecclesiastical court where it have be determine that a legacy give upon a  contingency shall be a good legacy before that contingency happen as doctor  Andrews inform I Mr attorney general be reply it be insist that the intention  of the party be clear and plain second if so that this intention ought not to  be overrule in law or equity there be no negative word that this shall not be  raise if the daughter marry without consent and if the term be to continue  notwithstanding the marriage without consent who be it to continue for for the  daughter only as it be create for no other end and purpose atkins the know  construction that the devise in restriction of marriage be in terror m unless  there be a devise over have in a good measure be allow by the defendant  counsel this have be the general and unshake rule of the court and therefore  if not entire find on reason ought to be acquiesce under but I do maintain it  be establish on great reason for the court suppose the father do not intend to  leave the daughter destitute of a portion but guard it only by intimidate a  child from marry improvident though a child shall be tell afterward this be  design as a terror only and do not debar you of your portion yet this be not  contrary to the intention of the father for he imagine when they be apprise of  this that they be then of year of discretion and incapable of make this  restriction ineffectual it be say the construe these restriction void arise  from the principle of the civil law which be not in force in England and to be  sure consider mere as the Roman civil law have nothing to do here but the  question be whether the same word in any case before one court of justice  ought not to have the same construction in every court it have be insist this  be a constraint not at all contrary to the rule in law and equity the parental  authority when confine to its just bind I will ready allow but no body will  say the fat er in England have the power of life and death or that he can  imprison or deprive his old son of his estate by right of heirship and  inheritance it will not be deny but that there be a time when a child may be  as fit to govern himself as the parent can be to advice he it be say that the  law have give the parent who be the natural guardian the power of appoint  another guardian and argument have be draw too from the custom of London which  I allow have be support upon wise reason but they be not applicable here  because at the custom cease and here they can marry at c or at any age without  the consent of the mother in the other instance the law do not extend their  view beyond the age of but the parent here have carry his power so far as to  control his child even after they come to year of discretion what be this but  restrain a person who be of a age equal capable of judge as his own and be  like a attempt to settle a estate in continuous after destroy the end by the  very mean themselves and general go much soon out of the family than otherwise  it may have do it be object that the court in devise in terror have proceed  only in pursuance atkins er p of the ecclesiastical court that the two court  who have a concurrent jurisdiction may not clash but it will not hold if this  court shall construe it a condition that be bind though there be no devise  over the learned doctor allow though there be a limitation over yet it be void  in the civil law except in one case a limitation atkins to pious use because  there the interest of charity be preferable to the interest of child this show  that the reason of this court be find different from the civil law for here it  go upon the general policy of the kingdom Mr fazakerly say there be no  instance of any case of this nature in the ecclesiastical court I be very glad  no instance can be produce there for then the consequence be this court have  nothing to borrow from the proceed in the ecclesiastical court though the  money be direct to be raise out of the land yet it be to be consider only as  money but it have be insist by Mr fazakerly it must first vest before it can  be consider as money but notwithstanding it be not as they say vest yet it do  not follow that it shall not till then participate of money and vest or not  vest make no difference nor can it be raise in any other court for it be trust  money and proper the creature of this court and it have be hold here more than  once that the construction of trust ought to be favour in the same manner as  the construction of will the case of king v wither in Lord Talbot time be upon  a appeal to the house of lord affirm case in Chan in Lord Talbot time Prec  Charles S c there what be call on the other side a general rule seem to be  break through for it be determine that money to be raise out of land shall not  sink for the benefit of the heir where marriage the end of the portion be  answer though the whole of the condition for raise it be not comply with the  case cite of a devise over be not applicable here because in the present  instance there be no legal proper devise over Needham and sir h Vernon resolve  in Lord nottingham time be in point for we and though the book itself be of no  authority yet the manuscript under his hand not differ from the print case in  any essential point will sure have its weight Aston v Aston vern of the same  kind and security give for perform the condition because there be a devise  over Lord Harcourt say in king v wither Eq can Abr that a portion to be raise  out of land be to be consider as land can have no weight for there be a great  difference to be make between the mere say of a judge and a dictum upon which  the judge give his judgement but in that very case the determination be  contrary to the dictum for the portion be decree to be raise and consequent a  dictum not necessary to the judgement and of no authority it have be insist on  the other side there be a devise over can it be say this be a give over where  it will have fall of course into the inheritance if this have not be say a man  devise a estate to his heir he do nothing by it for it will descend to he  without it the rule of consider condition in restriction of marriage as in  terror be a rule of this court only and find upon the policy of the land and  not in conformity to the reason of any other court atkins as to the portion  under the will it be say if they be not entitle to the original portion they  be not entitle to the augmentation it do not follow because the testator call  it a augmentation that they shall not have this portion in the same manner as  portion have be decree in other will suppose the very word of the settlement  have be insert in the will yet it shall have a different construction where it  be apply to the land estate and where to the personal and therefore what ever  may be your lordship opinion as to the settlement you will not determine on  the will by the same way of reason it have be insist by doctor Andrews that  these word be intend as descriptive and that no person can take but who bring  themselves under this description be not say daughter in the precedent word as  descriptive as if he say my daughter mary Ann c it be say that this be give  over and to the remainder man of the estate but the word be in case any of my  say daughter shall happen to die before the say portion be pay that the estate  shall be exonerate thereof this be not give it over but atkins er p make it a  nullity for it cease if the contingency of marry fail and nothing be to be  raise can it be suppose that a child will always continue a infant that they  will never arrive at year of discretion never capable of judge for themselves  shall they be think fit to preside in the great assembly of the nation be  place at the head of army nay even preside in this court and yet incapable of  judge where marriage be concern doctor strahan reply how far the civil law  shall have weight be in the breast of the person preside here but it be  certain the civil law be interweave in the original institution of this court  what insist upon be that be tie up to marry with the consent of another be by  that law consider as a total prohibition and hold to be null and void it have  be object notwithstanding the general rule that some restriction be allow upon  marriage with regard to point of time or restriction to particular person but  this be no argument that a total prohibition be allow for they be still admit  to marry observe the direction of time or direction of person the principal  alteration that I know of be restrain a woman from a second marriage and this  be relax the general law for the interest and preservation of the child of the  first marriage in the Julia Marcelia but the emperor Justinian repeal and  abolish the Julia Marcelia and make such condition whether in restraint of  widow or in restraint of other absolute void dig lib title de dote prlegata  law be very far from come up to the present case there the testator have two  daughter and a son the old of which marry in his lifetime and take notice of  his young daughter in his codicil he say son of me Crispinam how vellem to  give up nuptui whoever atkins clothe urinate cognati approbabu to see in  advance to give up Pollianus sciens chin of me in wicker basket part in who  sister he hand over this amount at most to a wish that she will marry with the  approbation of his friend and relation but not that if she marry without it  she will forfeit her portion it have be say that the father have a very great  power and that he may delegate it to other I allow it to be very great though  it be very much abridge but whatever power he may have in his life I apprehend  even in the civil law he can not delegate it after his death with respect to  paternal authority in the point of guardianship he can not appoint a tutor to  his child beyond the age of and after that age the Roman law think the child  of sufficient maturity in judgement to choose for himself in the present case  they must be continual under guardianship under their mother while she life  and under other after her death I admit accord to the passage cite out of  Grotius the child ought to be under the obedience of their parent and in point  of marriage too so far as to take the direction of their parent but not under  such a servile obedience as to refrain from marry at all if the parent shall  advice it there be no print report of case with we but there have and must  have be case of this kind but what be the consequence if there have be no case  at all of this nature determine then it must be adjudge accord to the standard  rule before this case after the counsel have finish the court declare they  will take time to consider before they deliver their opinion and the cause by  order of Lord chancellor stand in the paper for judgement the that of June Mr  justice comens who on that day deliver his opinion first after state the case  ut above say he think it very clear that it be the intention of sir Thomas  Aston that his daughter shall not have their original portion if they marry  without such consent as prescribe and this intent appear upon every clause of  the deed see the argument of Mr justice comens more full report Com Rep it be  agree that the portion be not Payable till marriage and there be no direction  in the deed that they shall be Payable at marriage only but express on  marriage with consent it be a know rule that where any act be previous to any  estate or trust and that act consist of several particular every particular  must be perform before the estate or trust can vest or take effect and to this  purpose there be many case but it may be sufficient to cite one only and that  be sir Caesar wood v the duke of Southampton atkins er p shower parliament  case which come up to this point as to the performance of both part but the  objection which have be most rely on at the bar be that in the civil law these  restriction be look upon as unlawful and that the doctrine of the civil law  have be adopt into this court I think some regard be to he have to the civil  law atkins and what Selden lie down in his dissertation upon Fleta lib ch seem  to direct how far it shall be admit it will therefore be proper to take some  notice of the ground of this maxim in the civil law that condition of marriage  with consent annex to legacy be void condition it be the rule of that law that  nobody shall devise their estate without leave something to the heir so also  by the statute of the h there be a particular save of one three part not  devisable the provision of the law falcidia be ita detur bequest ne minus how  parten quartan inheritance eastern will hredes to take in hand and it be call  fixed by law part this law be endeavour to be evade two way first upon leave  the whole to the heir upon condition of marry with the consent of such person  who it be know will never consent second where the party be in the power of  the testator by force they to marry such person only as they can not marry  with honesty and credit so that this be look upon as a evasion of the law but  the law always be that where the condition be not a total restraint as where a  particular person only be except then the condition be good but as it have be  insist that this court have adopt this rule I shall mention the case on that  head I take it to be now settle that if a pecuniary legacy be give on  condition of marriage with consent and there be no devise over that such  condition be void Bellasis v ermine Ch Cas Fleming v Walgrave and garret v  pretty vern but none of these case come up to the present which be the case of  a portion charge on land king v wither l Eq Cas Abr be also cite but there the  testator appoint two period of time to entitle the daughter to her portion  marriage or the age of and as she have attain that age it become a vest  interest so where the condition have be perform to a reasonable intent the  court have dispense with the want of circumstance as where the major part of  the trustee consent or where the trustee give a imply not a express consent so  where the father have make the marriage himself see Dailey v Desbouverie post  vol and note the case in more Gresle v Luther seem to have be determine in the  ecclesiastical court neither do it appear there be any devise over the chief  reason on which the court go in the determination of Fleming v Walgrave Chan  Cas seem to be that a distinction be take as be say in vern creagh v Wilson  between a condition that she shall not marry without consent and a condition  that she shall not marry against consent or contrary to their like the case of  Needham v Vernon in Lord nottingham time Eq Cas Abr seem to have be determine  by consent and though it be say in that case that all condition in restraint  of marriage be void by the civil law and that this court only consider they in  terror yet this be rather take pro acknowledged admitted fact than any express  determination on that point that they be not so by the commonlaw be evident  from the case of fry v atkins porter Mod the reason the court go upon in  Semphill v Bailey Prec in Ch be that the condition be look upon as a lose  inconsiderate expression and intend to be by way of caution only for there be  no devise over nun of these case however come up to the present pecuniary  legacy be suable for in the spiritual court be the reason why that law in some  respect govern as to they but it be undoubted true that this court have not  universal follow the maxim of the civil law even upon this point for it have  be always agree that where there be a devise over it shall take effect it be  say in this case there be no particular devise over to any particular person  but I think it be equal strong for it be declare the estate shall be exonerate  or if the money be raise hall be pay to the person who be entitle to the  reversion it be a know maxim that where the estate be to arise upon a  condition precedent it can vest till that condition be perform and this have  be so strong adhere to that even where the condition be become impossible no  estate or interest shall grow thereon   light a atkins er p but it be say the  civil law have no such distinction as that of condition precedent it be true  they haye no such term but they have the thing in effect condition they say  act of hanging oneself bequest and say Ulpian bequest sub condition relict non  statin send cum condition to stand out to withhold incipient ideoque interim  refer to non to be able dig lib title de condition demonstrate law they  distinguish between three sort of legacy saint a pure legacy dly one Payable  at a day future but certain dly one Payable on a condition that be uncertain  in its event as to the first they say die bequest go for sale as to the second  die to go from send non go for sale as to the three die nec to go from nec go  for sale and in the last case if the legatee die before the contingency happen  it shall not go to his executor Swinb part that that sec as to the legacy  under the will the case be more doubIful for there be no express devise over  at all but to the person entitle to the residuum and it be say in vern garret  v pretty that the daughter shall have the whole pound though she marry without  consent because it be not devise over but only to fall into the surplus but  the case of Amos v Horner atkins Eq can Abr be a late case and it be there  hold that the devise of the surplus of the personal estate be a devise over it  will be a contradiction in this court to say they are not entitle to the first  and yet to the second which be to be pay together with and at the time of the  original portion and be make subject to all the same condition limitation and  proviso and it will be likewise contradict even the course of the civil law  for by that if a legacy be Payable on a contingency and the party die before  the contingency happen it lapse atkins Lord chief justice will I be of opinion  if a stranger impose a condition it be as strong as if a father have impose it  and the law be not find on the consideration of the person give but on the  thing give the rule be pron  interrog  be dare he be to place here and there  upon this case two point have be very proper make first if it be the intention  of sir Thomas Aston that his daughter shall have the portion whether they  marry with consent or not second if it be his intention that they shall not  then whether this intent be agreeable to the rule of law and equity as to the  first I think there can be no doubt either upon the will or settlement as to  the second point to begin with the will the rule be that will testator totum  be if not inconsistent with the rule of law and equity and they shall be very  plain indeed ever to defeat the intention of the testator we must agree with  dyer say Lord chief justice Treby vern that man will by which they settle  their estate be the law that private man be allow to make and they be not to  be alter even by the king in his court of law or conscience let we now  consider the difference between a portion Payable out of land and one Payable  out of personal estate and the difference be that if money be give to a man  Payable when he come of age and he die before the day of payment it shall go  to m executor but if it be a portion to be raise out of land it shall sink  into the estate for the benefit of the heir paulet v paulet Eq Abr pl Ventr  Ventr Ch Rep vern and vent and tourney v tourney Prec in Ch Eq can Abr pl in  the present case it must be take to be either a condition precedent or a  limita cion of the time of payment if the first the case of bertie v Falkland  Ch Cas be in point and that of fry v porter Ch Cas go far for there it be hold  that a condition subsequent can be relieve against without a compensation  which a marriage without consent can have if it be take as a limitation of the  time of payment and that seem the proper construction then even the civil law  will not say they be now entitle because the time be not yet come tournay v  tournay paulet v paulet be in point the case of Salisbury v Bennett vern be  more proper the case of a personal estate but have some similitude to the  present as the surplus be to be lie out in land but the court there go upon  this foot that there be a dispensation by the father as to one part and a  consent of the mother and trustee as to the other part in the case of king v  wither there be two period of time to entitle the daughter and one of they  have happen it be lie down as a rule that govern in devise of personal estate  that where there be no devise over the condition be only in terror but rather  take it this be lie down atkins er p as a rule to construe the testator  intention but not that it be in all event a atkins general rule that such  condition shall be in terror only unless there be word of limitation over for  the testator intent may be know other way paget v Haywood Novem at the roll  before sir Joseph Jekyll post vol SC cite do indeed contradict the opinion now  declare for there it be hold that a general devise of the residuum or a devise  to the person entitle to the residuum be the same as if no devise over at all  but the case of Amos v Horner Eq Cas Abr be to the contrary there be indeed no  decree find in the register but it appear by the calendar that a decree be  make but be against the plaintiff I suppose have never be draw up the author  of the book however tell I he have a note of the case from a very able person  who be present at the hear Lord chief justice lee declare himself of the same  opinion and say there be three sort of condition to be reject first such as be  repugnant second such as be impossible in their creation three such as be mala  in see but this condition of marry with consent do not come under any of these  head and in fry v porter and bolt Abr it be admit such a condition be good in  respect of land though where a compensation can be make it be true there be  but little difference between condition precedent and subsequent yet where a  condition be annex to a portion in order to have a marriage with consent there  be a equitable difference in the case of a condition subsequent the thing be  vest and though in the nature of a penalty yet the intent shall be clear and  plain by a express devise over to divest it but in the case of a condition  precedent for which there can be no compensation it will be give a estate  against the intent of the donor to dispense with the condition here be no word  to vest the portion in the daughter till a marriage with a consent and I very  much govern my opinion in the present case by the particular pen of this deed  which have make this a condition precedent and have vest nothing in the  daughter till a marriage with consent the only true question upon this case  seem to be whether such a condition as this can be annex to a portion for if  it can then all those case where the portion be to sink into the inheritance  be in point and that such a condition may be annex have be already show as to  the question upon the will all that be material upon it be the consideration  of the case Bellasis v ermine Ch Cas be consider on a plea only where the  court do not use to consider matter so through and there indeed the court look  upon it as a portion vest but the condition in the present case do not operate  by way of defeat the estate but hinder its vest it appear by Aston v Aston  vern that even in the case of a condition subsequent the length of time during  which the restraint be to continue be not a reason to relieve against a  forfeiture in the case of garret v pretty vern the portion be plain a atkins  vest portion and the proviso come in afterward and be to be consider as a  condition subsequent upon the whole therefore I be of opinion that a condition  to marry with consent be a lawful one and that it be annex to these portion  that it be a condition precedent and that nothing can vest in the plaintiff  till that condition be perform and shall conclude with the advice of  puffendorf that parent ought to use this power merciful and cautious Puffend b  Ch p Lord chancellor I agree with my lord the judge in opinion and do hold  nothing be more fix since the case of Pawl t v paulet than that portion charge  on land will not vest till the time of payment come which in this case be not  till a marriage with consent and there be no rule in law or equity that can  excuse the want of such consent that there be no such rule where they be give  over have be clear prove and the order that the estate shall be exonerate I  think be equal to a devise over but admit there be no devise over then the  question will be whether this condition be in terror only and I own I do not  know that this rule obtain so general as have be lie down I have understand it  only of legacy and not of portion and of this sort be the case cite in more  these portion arise out of land and have nothing testamentary in they so be  not subject to the jurisdiction of the ecclesiastical court nor to be govern  by the rule of the civil law but be subject only to the rule of the commonlaw  atkins er p a estate may be limit to a woman dumb sola marry to be and this be  mention by Swinbourn himself if a infant under the wardship of the court marry  without the consent of the court it be the common practice to commit those  that be concern in it the custom of London go further for if the daughter of a  freeman marry in his lifetime against his consent unless her father be  reconcile to her before his death she shall not have her orphanage part Foden  v hewlet vern and this be more to the purpose here because this custom be  general think to have be take up from the writ de ration part will do you much  good from whence a argument be draw at the bar in favour of the plaintiff in  this case if sir Thomas Aston have express limit the term to his daughter on  their marry with consent the term never arise till they be so marry as be  evident from the case of fry v porter and why have he not the same power over  the trust of this term as over the term itself another material difference  between portion out of land and personal legacy be that in the first case if  the party die before the become Payable they shall not be raise in the latter  atkins the legacy shall go to the executor and the ground of this distinction  be that the court for uniformity follow ecclesiastical court in the one case  and the commonlaw in the other there be another reason give for this  distinction that it be in favour of the heir but that can be no reason at all  because in a court of justice there ought to be no favour show to one more  than to another as to the precedent that have be cite for the plaintiff they  all of they depend upon the particular pen or some other evidence arise upon  the fact and have not be determine upon general rule Fleming v waldgrave seem  to be a settle mean of a leasehold estate which if so be a mere personalty  Needham v Vernon seem rather a award between the party than a decree in a  adversary suit for in a manuscript I have see of Lord nottingham to avoid  question say he decree the portion to be pay upon the give security by  recognizance not to break the condition as to the reason in that case lie no  great stress upon it as it go on a supposition that the portion be vest and  the case of Aston v Aston go on the same foundation it must be admit on the  other side that no case exact in point be cite for the defendant the meaning  of which may probable be that the general doctrine have always be that in case  of portion arise out of land this court can give no relief nor can take away  or set aside such condition as be annex and in the case of paulet v paulet it  be so determine as to the additional legacy under the will they will fall  under the rule of personal legacy unless something be do by the testator that  will prevent it and this be do by annex to they the same condition that govern  the deed the testator mention the legacy as a augmentation of their portion  under the deed which skews they be to attend the original portion for how can  they be entitle to a augmentation if not to the thing augment as to what have  be say that lady Aston be residuary legatee under the will be the person that  will take benefit by refuse her consent I shall be glad to have the opinion of  the judge whether it may be proper to send this matter back to a inquiry into  the reasonableness of that refusal for my own part I be extreme doubIful  whether can now direct such a inquiry as the cause stand before I lady Aston n  a account of the reason of her refusal and this answer not the hear read as  proof and therefore I think I must take it that she use all the caution in her  power some unreasonable behaviour on her part shall have be prove in the cause  or some special case have be make in the bill and unless that have be do I do  not see how can direct such inquiry and if no corruption appear in her this  court can take from her the trust repose in her upon hear lady astons answer  read the three judge be of atkins opinion that the subject matter of the  inquiry be already admit by the plaintiff not reply to the defendant answer  and therefore a inquiry now can be of no effect and also that lady astons  dissent shall have be make a matter of original complaint the Lord chancellor  be of the same opinion he decree that the order of p the master of the roll  shall be discharge but that the annuity shall be pay atkins er p with respect  to the subject of the above case the follow observation occur when a condition  in restraint of marriage effect land if such condition be precedent the estate  can v be till the condition be strict perform whether there be a devise over  or no bertie v Lord Falkland Charles can vern S c Frem S c or if in such case  the condition be subsequent then the breach of the condition operate by divest  the estate before vest roll ab pl fry v porter Charles can Mod S c Charles Rep  S c see also above Pullyn v ready post vol the same rule apply to such portion  charge upon or interest arise out of land as be not in their nature  testamentary or subject to the jurisdiction of she ecclesiastical court Harvey  v Aston above Com Rep S c Mansell v Mansell bro Charles Rep but on the other  hand where a personal or pecuniary legacy be subject to a condition of  marriage with consent and there be no devise over such condition be only  consider in terror whether it be precedent see particular Harvey v Aston above  and in can tempt Talb SC Dailey v Desbouverie post vol Reynish v Martin will  post vol S c Elton v Elton will Ves S c post vol S c or subsequent Bellasis v  ermine Charles can Semphill v Bayley Prec Charles jervois v duke vern  Underwood v morris post vol Pullyn v ready will post vol SC in this last rule  however a know distinction prevail as to the operation of a condition  subsequent and one precedent the former be in terror do not tend to divest the  legacy before vest see case above but the latter though in terror also will  necessary prevent the legacy from vest until the marriage though without any  consent obtain be perform Garbut v Hilton post atkins v hiccock post pulleyn v  ready post vol Elton v Elton will Ves S c post vol SC Hemmings v munckley bro  Charles Rep knappy Noah Amb but in all case of personal legacy where there be  a devise over whether the condition be precedent or subsequent the right of  the devisee over will prevail against that of the legatee Sutton v Jewke  Charles Rep piggot v morris Sel can Charles Bellasis v ermine Charles can  Stratton v Grimes vern Aston v Aston vern Wrottesley v Wrottesley post vol  Chauncey v Graydon post vol scot v tiler bro Charles Rep note the case of  Underwood v morris post vol which seem to be contra be deny to be law bro  Charles Rep bro Charles Rep the same doctrine be equal applicable to case  where a legacy personal or testamentary in its creation be afterward make a  charge upon land upon performance of a condition precedent Reynish v martin  will post vol ksc so if a condition be precedent and substitute a lesser for a  great legacy for although there be no devise over yet as the great legacy can  lest till the condition be perform upon breach of such condition the lesser  legacy will v be the condition in this case not be consider as mere in terror  creagh v Wilson vern gillet v Wray p W by if the condition be subsequent  garret v Prittey vern Wheeler v Bingham post vol will S c if however a  condition be subsequent although there be a devise over yet such condition may  be dispense with if the performance of it become impossible Peyton v bury p W  Graydon v Hicks post vol Jones v Suffolk bro Charles Rep it be observable that  the bequest of a residue be such a devise over as to be within the above rule  Amos v Horner Eq ab pl scot v tiler bro Charles Rep this be former hold  otherwise Semphill v Bayley Prec Charles garret v pretty vern paget v Haywood  above post vol Wheeler v Bingham will post vol S c as to case where the court  have dispense with the forfeiture though the condition have not be strict  perform see Dailey v Desbouverie post vol and note thereto atkins er p