CLIFTON V cockburn see Roger v Ingham Ch d construction of a clause in a  marriage settlement a court of equity will not direct payment make under a  mistake construction of a doubtful clause in a settlement to be refund after  many year of acquiescence by all party and after the death of one of the  author of the settlement especial where subsequent family arrangement have  proceed on the foot of that construction this be a appeal on the part of the  defendant against the decree of sir I leech master of the roll in so far as it  be not thereby declare that dame Eliza Cockburn decease be accord to the true  construction of the settlement of the saint of January entitle to the interest  which accrue due on the clear residue of the respective estate of Charles  rumley and dr Davis from the date of that settlement till the time when the  plaintiff come of age and in so far as it be not also thereby declare that so  much carnatic stock and money as have be transfer or pay to the plaintiff and  his trustee in respect of the estate of dr Davis over and above what they be  entitle to accord to such construction ought to be set off against the  carnatic stock and money to which they be entitle in respect of major Rumleys  estate the question discuss on the appeal be principal two first whether his  honour right decide that upon the true construction of the settlement of the  saint Mylne and keen of January the plaintiff be entitle to the interest which  have accrue due on the clear residue of the estate of dr Davis and major  rumley during the interval between the execution of that settlement and the  period of the plaint S majority suppose his honour decision to have be  erroneous in that point whether under the peculiar circumstance of the case  and after the death of lady Cockburn by who direction the settlement have be  frame and who during the whole of her subsequent life have recognize and act  upon the construction which the master of the roll consider to be the true one  the court be now at liberty to adopt and give effect to a different  construction by allow the sum which under the common mistake of all party have  be pay to the plaintiff in respect of the minority interest to be deduct from  the money which be still owe to he in respect of major Rumleys estate and of  which it be the object of his bill to obtain a account and payment the  argument on the first point consist entire of a critical examination of the  language and provision of the settlement execute by lady Cockburn on the saint  of January in contemplation of her marriage with sir William then captain  Cockburn with a view to throw light upon the question of construction  reference be make on both side to that class of case in which the court have  be call upon to consider under what circumstance and to what extent a person  have only a temporary or partial interest in a fund have a right to make it  effectual as against the party entitle to the capital while the capital itself  remain unrealize and unproductive upon this point the follow authority be cite  Garth v Colton I dick hutcheon Mylne and keen v Mannington Ves jun Gaskell v  Harman Ves sitwell v Bernard Ves mood v Penoyre Ves walker v shore Ves earl of  stair v Macgill Bligh saint S Bernard v Montague mere tailor v Hibbert James W  Stott v Hollingworth mad Fitzgerald v Jervoise mad angerstein v Martin t king  Hewitt v morris t king Kilvington v grey sim S law v Thompson Russ on the  second point the follow case be refer to and comment upon pullen v ready atk  Nicholls v leeson atk curry v gold mad Skyring v greenwood barn c Moseley v  Jackson not report before sir I leech when vicechancellor and affirm by Lord  Lyndhurst on appeal the history of the peculiar circumstance and transaction  out of which the question in the cause arise be full detail in the Lord  chancellor judgement where the material passage in the settlement be also  state Mylne keen er p sir e Sugden Mr Tinney and Mr Garratt in support of the  appeal Mr knight Mr Wigram and Mr Richard contra march the lord chancellor  Brougham deliver the follow judgement Mylne and keen dame Eliza Cockburn have  be twice marry in the east Indies before her union with sir William Cockburn  her survive husband and one of the defendant in this suit by her first husband  Mr George Clifton she have two child Frances who die under and Charles clande  the present plaintiff during her first marriage major rumley a intimate friend  of her family deposit with her a seal packet upon his departure to the war  then wage against Hyder a and be take prisoner perish with many other gallant  and unfortunate man in the dungeon of that barbarous tyrant before his death  he find mean to communicate by write to mrs Clifton his desire that she shall  open the packet which she do a d find it to contain his will and a bind for  star pagoda from Omdut ul omrah then heir apparent of the nabob of arcot and  who afterward succeed his father wallah Jah upon the throne of the carnatic  the bind be to secure a debt from the omrah but major rumley have take the  precaution of make mrs Clifton the obligee as he intend the sum shall be pay  to her who he also leave executrix and residuary legatee in his will it be  admit however that she take a beneficial interest in the bind only under the  will after the decease of her first husband she intermarry with dr Davis  resident physician at the court of arcot and who also be to a considerable  amount a creditor of the nabob as indeed every one appear speedy to have  become who get within the vicinage of his highness describe and just describe  by a great orator of that age Burke speech on the nabob of arcot debt as a  know and establish bind Mylne and keen seller keep himself the large bind  warehouse in the world by this second marriage there be no family and mrs  Davis possess of the fortune which she derive under major Rumleys will and of  that which she take under dr davis bequest contract a three marriage in the  beginning of the year with captain afterward sir William Cockburn by who she  have several child before she contract this three marriage lady Cockburn be  natural and very laudable desirous of make a provision for the child of the  first thus at once to protect herself from importunity and to secure they from  the effect of those new affection and possible those partianties which be  about to spring up a settlement be accord execute on the eve of the marriage  on new year day of all her property derive under the will of major rumley and  dr Davis one half to her sole and separate use and the other half to the two  child or the survivor to vest in each respective at majority or marriage and  in case of both die under age and unmarried then to lady cockburn separate use  together with the other half the interest of the child moiety before the  principal vest to lady Cockburnas one party contendsthat interest before the  time of vest as the other party maintain to be lady cockburn only in case it  shall during that interval be realise and lie out pursuant to the direction of  the settlement at the date of this marriage Mr Clifton be fourteen year of age  and his sister a year or two young she die before reach majority and the whole  question turn upon the right to the interest on the arcot bind Mylne and keen  which form the principal if not the only property of lady Cockburn for the  period which elapse between her three marriage and the year when the plaintiff  Mr Clifton come of age if the money due upon these bind have be pay or if in  any way the fund which consist of they have be realise and invest so as to  bear interest while Mr Clifton be under age no question can ever have arise at  least upon the construction of the settlement for it will then have be admit  on all hand that lady Cockburn have reserve to herself the right to this  interest but many year elapse before a prospect be open of the bind ever yield  anything at all a long period intervene before any arrangement be make for  liquidat the debt which the bind represent and it be not till above fifteen  year after the  settlement and eight year after Mr Clifton come of age that a  arrangement make Mylne keen er p between the east India company and the  creditor of the nabob receive the sanction of parliament seven year more  elapse before that arrangement lead to any adjudication or award by which the  amount due to those entitle under the settlement can be ascertain and by mean  of which they can be put in possession of any fund that be tangible or  convertible into money the award then make allot to those claimant who have  establish their demand the principal sum prove by they to be due with interest  on the same at different rate down to the year l this principal and interest  be form into one capital and stock call carnatic stock equivalent to it be  allot and interest from that period downward to the date of the award in the  year be also award in money and the stock be to bear interest afterward and to  be transferable to lady Cockburn there be Mylne and keen in this way award  first on account of the bind of dr Davis pound carnatic stock and pound  sterling for interest since the year so that the stock represent as well the  original principal of the debt as its interest down to while the money  represent the interest which since the year have accrue due both upon that  principal and interest afterward the commissioner award a further sum of pound  carnatic stock to her as executrix of major rumley and six year after a  further sum of pound like stock be award to her in the same character these  fact as indeed most of those in the cause be undisputed it be equal a admit  fact that for many year after the award be make the stock thus receive be deal  with by lady Cockburn under the right and power of the settlement as if she  have only title to the moiety of the principal and to the interest upon that  moiety from the settlement of downward nay even to the period of her decease  which happen in the year she take the same view of the matter and uniform  continue to act upon this supposition after that event the term of the  settlement appear to have be more narrow examine and those entitle under her  will conceive that the interest of the moiety settle upon Mr Clifton from the  date of the deed till he attain majority and consequent such portion of the  interest award by the commissioner as correspond to that interest be reserve  by lady Cockburn under the settlement a discussion take place between the  party at first as be usual amicable enough but as unfortunate also be wont to  happen when those discussion be protract it become much less friendly referee  be name of the high respectability one of who in Mylne and keen this court we  all have the happiness of know and esteem accord the other a distinguish  officer friendly to the family but the party do not think proper to comply  with their recommendation which never ripen into a award there never indeed  have be any formal submission while I be very far from cast any blame for this  failure upon either side certain not upon either in a unequal share I must be  allow exceed to lament it for the sake of the whole family respectable in all  its branch nothing I be persuade can have give great uneasiness to the person  now remove from among they and who appear to have so entire engage their  affection and to have guide their conduct than the knowledge that their affair  be this day and in this place to be gaze upon by strange eye and discourse of  by indifferent lip and which branch soever shall even now show a disposition  to terminate these unfortunate difference may be well assure of act as she  will have desire and counsel and I will add command when the interference of  common friend prove unavailing and legal proceed be institute the court before  which the question be bring have two thing to consider first the construction  of the settlement and second the proceed of the party and especial of lady  Cockburn after the fund may be say to have be realise by the award of the  commissioner in and these be the two point which must now be consider here  when the case be bring before the court by appeal from his honour decree upon  the construction of the settlement the question be whether or not the interest  of the fund secure to the child of the first marriage be reserve to Mylne and  keen lady Cockburn during their minority I be of opinion that it be differ as  I here do with the master of the roll I shall be most reluctant to express a  opinion contrary to his honour as I shall with great hesitation have form such  Mylne keen er p a opinion have this be one of those case of very involve  difficult and uncertain construction where it be impossible to pronounce with  confidence between two rival interpretation but in examine this instrument I  can see nothing which warrant I in consider the meaning as unattainable or as  doubtful in so extreme a degree whether I regard the grammatical construction  the context and consequence or the general intent that it be quite clear or  free from doubt I be as far from assert indeed I have no right to say so after  find that two most learned and experience judge who I have consult come to  opposite conclusion upon a consideration of the instrument this difference of  opinion and the unhesitate judgement of the court below in favour of the  construction from which I dissent will justify I in leave this branch of the  case undecided as it be not necessary to support the general opinion to which  I have come certain it entitle the court to pronounce that the construction be  by no mean free from difficulty and doubt but I think I be bind to give my own  view of the construction because I have a strong opinion upon it and the party  be entitle to know what the court think of the whole case we may begin by put  ourselves in the situation of the party make the settlement safe and  convenient mode of deanng with all question of construction lady Cockburn be  about to marry again and be desirous of provide for the two child of her  former marriage who be whole dependent upon her perceive of course that she  and her new husband Mylne and keen must maintain and educate they during the  remain portion of their infancy she reckon upon have a family by her  contemplate union and be resolve to give those two child provision independent  of herself and her husband she know that her only property consist of bind  from the nabob and that those be by no mean likely speedy to be pay nothing  can be more natural for one in such circumstance with this knowledge and with  these view and expectation than to settle a portion of her property upon the  two child so that they may receive it at their majority or marriage but only  give they the capital and reserve to herself the interest during the intervene  period before they shall be entitle to their share there be no reason for give  they that interest and there be this additional reason for reserve it until  they shall become entitle to the principal by be of age or settle in life that  the expense of their maintenance be to fall upon her new establishment during  the interval let we now see whether this be not exact what the instrument have  provide the fund be vest in trustee in trust for herself till the marriage and  from and immediate after the solemnization thereof to collect and receive the  say property and every part thereof this be the primary and fundamental  direction and then follow the other the trustee be to invest the same that be  the whole property in fund or bind of the east India company if realize in  India in the stock if realize in England or in such other security as lady  Cockburn shall direct and to pay and apply the interest of onehalf thereof to  lady Cockburn or her attorney or assign until the child respective attain the  age of twentyone or be marry at which time such moiety of the say trust  property shall be pay to the child Mylne and keen or the survivor of they and  if both be dead then to lady Cockburn that this clause be sufficient to carry  the meaning advert to can hardly be doubt it take the distinction between the  property or capital which be to vest at twentyone or marriage and the interest  before it vest which it reserve to lady cock urn whether interest shall actual  have be receive or not can signify any more than whether the principal shall  have be receive or not although the principal remain outstanding when the  period of vest arrive the child have a right to receive it whenever the  trustee shall get it in it be they from that time in like manner although the  interest be not receive before the time of vest the mother have a right to it  whenever the trustee shall receive its arrear it be she up to that time but  not only be the word sufficient to bear this the natural meaning and to  express this the plain and natural intention of the maker I consider it to be  a obvious perhaps the most obvious sense of the word take grammatical and with  a view to their collocation the subjectmatter of the whole clause be the  property and every part thereof and this be the first and govern antecedent  first it be Mylne keen er p to be get in immediate next when get in it be to  be invest in security and then the interest of onehalf of it while the child  be under age and unmarried be to be pay to the mother and the principal of  that half to the child when of age or marry the interest of what the principal  of what clear of the property and every part thereofof that capital which the  whole clause be deanng with and direct to be call in invest distributedcalled  in immediate invest Mylne and keen in security distribute in moieties the  opposite construction be not even the more grammatical to compensate for its  be in so many other respect objectionable it make the word onehalf thereof  refer to the last antecedent that be not to the say property as first mention  and the same as afterward state by way of reference but to the fund and  security in which it shall have be invest but though it be sufficient correct  to speak of the interest of property it be not so accurate to speak of the  interest of government fund or mortgage or security one may speak of the  interest of money or property lend on mortgage or security or invest in the  fund but not of the interest of those fund or security and it be remarkable  that of the four kind of investment set forth there be only one in bind to  which the expression interest thereof can be apply with strict accuracy to be  strict correct then these word must be take to mean the interest of the  property vest in the fund or security but have we any right when go upon the  mere literal construction to add such word if for the sake of verbal accuracy  we must import the general antecedent property into the body of the last  antecedent that member of the clause which mention fund why be we not to take  that general antecedent itself as the one refer to by the word in question  interest thereof and then it be gratuitous to mix up that antecedent with the  part relate to investment this become still clear when we observe that the  expression be interest of onehalf thereof plain that can mean literal onehalf  of the government fund or security without more it appear indeed as great a  strain upon the word as upon the sense to adopt the interpretation which will  connect the gift or distribution with the manner Mylne and keen and time of  investment mere because that happen to be the subject of the clause near in  place the capital be the subjectit be the subject of all the provision in the  clause the thing to be realise in the first invest in the second distribute  quoad principal and interest in the three it seem a violent and capricious  construction which will raise the direction for investment into a primary  object and lose sight of the thing invest will turn aside and begin deanng  with the security in which the investment be to be make further the  consequence of this construction be in no slight degree startle they be such  as can rational be suppose to have be in contemplation it will follow that the  interest during minority will go different way and belong to different party  accordingto the course of event or of conduct which may retard or accelerate  the reansing of the fund that interest will belong to the child or to the  mother not accord as the duration of life or of celibacy may regulate which be  the only contingency designate in the instrument but accord as the debtor be  more or less solvent the trustee more or less diligent or the creditor more or  less fortunate in obtain payment if the nabob can pay in three year lady  Cockburn will receive four year interest on the plaintiff survive and marry  after twentyone the event that have happen but if the prince defer payment for  six year she will get but one year interest and if he do not pay within seven  year she will get none at all yet all the while interest be accrueing due  though not pay and the deed which provide for its be allot to the mother at  any rate and by both construction in a certain event in no event provide for  that interest be give to the Mylne and keen child yet we be here ask to supply  such a provision again if the trustee be so active as to reanse the debt and  invest it in security speedy the mother get the interest if they be more  supine and do not effect a investment it go to the child nay if they sue the  nabob and obtain a judgement for the principal it will depend upon the state  of business in the court where the proceed be have and their swiftness in give  redress and it may be in the court of error where the judgement be bring under  review whether the one party or the other shall be entitle to the fund in  question but if the debt be pay during the minority and with interest due for  any part of that minority who Mylne keen er p can doubt that this interest go  to the mother and yet it be not interest arise from the property vest in the  fund or other security so that here the construction contend for on the  suppose literal meaning of the word and their collocation fail entire to  follow that out in the case now put we be reduce to the violent conclusion  that if the nabob pay principal and interest up to the last year of the  minority and the trustee have receive it before that year expire they can not  pay it to the mother who have express reserve it and this in the face of the  direction to pay and apply it to her mere because they receive the interest  from the original debtor and not from obligors in new security again suppose  it have be find expedient for the creditor a very possible case to give the  nabob time observe the position of the trustee if they be ask by the royal  debtor to let he pay the whole ten year hence with interest up to the day of  payment they can accede to the request which may be most advantageous for all  the party beneficial interest because these will gain in very different degree  and one Mylne and keen will profit at the other expense the mother will lose  and the child gain the minority interest but if they give anything less than  seven year time then that interest will go to the mother I have put the case  of the principal be pay with and without interest and be pay before alid after  majority but what if the interest be pay without the principala kind of  bargain or compromise not irreconcilable with the character of a princely  debtor and a debt carry interest upon the Oriental scale there real seem no  possibility of give this interest for the period of minority to the child for  there be no word which can be so torture as to include it all the party claim  in respect of the debt and whatever be take for the debt will go to the child  quoad one moiety but the interest for the period of minority be reserve to the  mother and thus in the suppose case of compromise there will be no principal  which the composition can accompany so as to go to the child the context throw  some doubt upon this construction as far as the use of the word eventual go  the expression occur thrice and the two first use of it seem in some  inconsiderable degree to favour the opposite construction but the three time  it be so use as exceed to support the interpretation to which I incline the  clause however which seem express to provide for the case of postpone payment  throw a very strong light upon the whole argument a power of disposition by  deed or will be reserve to lady Cockburn over all or any part of the say  property as well before such property shall have be realize as after now if it  be say that this only give her the power of dispose Mylne and keen before it  be realise that will go far in favour of our construction because there be no  possibility of distinguish between principal and interest property clear  meaning here whatever portion of the whole be reserve to her by the deed and  the precede part have in express term place the minority interest under her  sole control but the part which immediate follow be still strong for it refer  to the period at which her disposition shall be bind on the trustee that any  disposition of the property or any part or part thereof under her hand c shall  be bind on the say trustee as well before such property shall be receive by  they as at any time after they shall have be in possession of the same she be  therefore invest with the power of direct before they get it in what they  shall do with it after they receive it suppose she make a appointment five  year before the child majority by this clause the trustee be bind in term to  obey that direction after they receive the minority interest and at whatever  time the opposite construction involve this inconsistent and contradictory  conclusion that her appointment will only be bind on the trustee provide they  get in the interest within five year although the clause contemplate  postponement be quite general and refer to no period of reansing or rather  indeed be frame upon a supposition of long postponement with which view and  upon which recital it proceed to provide for fill up the place of such trustee  as shall quit Asia and return to their native country before the property can  be realize this lead to a remark upon the argument draw from the desperate  state of the debt and the prospect of its be receive late if at all evidence  be give at length by the plaintiff to prove this fact but it appear to I  rather to oppose Mylne keen er p than to aid his con Mylne and keen struction  lady Cockburn certain suppose that she be settle a fund of some value if she  think it worth nothing why make it the subject of a elaborate arrangement the  interest as well as the capital be deal with but to be sure the whole  complexion of the case on the evidence as well as of the deed construe it how  we may in the dispute part show that no immediate payment can be expect at  some time or other it be look to as a provision of some value accord as the  chance of the nabob treasury be solvent be deem more or less probable but the  expectation though cherish be remote Even in those day when the revenue of  eastern kingdom be so lavish squanderedthose day happy go never to return when  Oriental munificence and European profusion vie with each other in desolate  both part of the empireeven then the day of a possible payment whether of  principal or interest be assume to be distant and the infancy of the child can  only last seven or eight year be there then no meaning at all in the provision  which reserve the interest during that period to the mother sole and separate  use they who contend that she be only to have it if the fund shall be realise  during these few year sure defeat their own argument when they prove that the  author of the deed do not expect to call in the fund until after those year  have elapse of the other argument in support of the construction which I  favour I shall add but one the maintenance and education of the child be  undertake by lady Cockburn at all event be it not reasonable to suppose that  the interest of the fund belong to those child while throw upon her care be  give to her in consideration of the charge thus undertake and be it not very  unreasonable to hold that she intend to make Mylne and keen the charge certain  and inevitable and the fund for defray it or replace the charge if bear and  advance in the first instance uncertain and contingent that she shall take the  interest at all event and whensoever receive upon undertake at all event the  expense of their maintenance be Intelligible that undertake the charge she  shall provide a fund for defray it or for compensation which fund shall be she  or the child accord to accident and circumstance beyond her control and whole  unconnected with the expenditure or its object appear in no small degree  difficult to believe or comprehend the authority of decide case be seldom  calculate to throw much light upon question of construction so special in the  circumstance in which they arise and by which they be surround as the present  we may however sometime gather from they a few hint or analogy or  approximation to a principle hutcheon v Mannington decide by Lord Thurlow I  Ves jun and still more sitwell v Bernard Ves on which Lord Eldon appear to  have bestow great pain and which he decide after take the long vacation to  consider it as far as they go support the view which I have take of the  present instrument in the former Lord Thurlow appear to have hold that with  reference to the vest of a right or the party in who it shall vest nothing can  depend upon the dispatch or slowness or caprice of trustee in make a  investment or a sale in the case of a direction give to they which they can at  any time fulfil the latter also be the case of a direction to sell with all  convenient speed but in Kilvington v grey sim stuff the direction be to  purchase on certain Mylne and keen term and in a give county and the present  master of the roll then vicechancellor there hold that this do not differ from  sitwell v Bernard and he give the tenant for life the interest from a year  after the testator death I have weigh this settlement and have give my opinion  plain upon its construction not express great doubt than I feel on it but it  will be most unbecoming to say that r anyone can consider the point as involve  in no difficulty it be enough to know that other to who opinion the great  deference be due regard it in a different light enough that his honour in the  court below hold a confident opinion of a opposite kind that it be of doubtful  import therefore that it be of difficult interpretation must be assume from  the fact that the maker of the deed themselves impose upon it a meaning  contrary to that which I be give itthat they act on that construction which I  be treat as a misconstructionthat they know of none other live and die and  make all their family arrangement upon the foot of it be undeniable and this  be the next and most important light in which the case present itself to our  view Mylne keen er p two lady Cockburn survive her marriage thirtynine year  and while it be contend on the one hand and it be so argue below that a  construction act on for so long a period of time can now be disturb it be on  the other deny that any such lapse of time can be allege because nothing be do  till the year I be of opinion however that the former of these position be  much more near the truth than the latter indeed from the nature of the  transaction nothing be likely to be do until the fund be realise or about to  become tangible during the early period while the Mylne and keen amount be as  uncertain as the time of payment there be no likelihood of the fund be deal  with either in the family or with stranger as soon as the uncertainty cease  the very month after the award the deed of August be execute other arrangement  be afterward make respect the fund down to within a few year of lady cockburn  death so that we be warrant in say with the master of the roll that for near  forty year she and those who advice her act upon the supposition that the  interest during minority belong to the child in the case which arise of the  fund not be realise before the time of vest some question may be make as to  the first seven year but that will only have the effect of make the term of  act upon this construction thirtytwo instead of thirtynine year the first  award make by the commissioner on the that of jul be upon the two branch of  lady cockburn claim as executrix of dr Davis on the that of August in the same  year a deed be execute by her with sir William cockburn concurrence wherein  after recite the settlement of and the award of the commissioner lady Cockburn  in order to give Mr Clifton the benefit of the settlement as far as she safe  can with reference to possible claim upon dr davis estate covenant to transfer  the whole stock award by the commissioner except a trifle sum due to herself  into the joint dam of sir William herself and Mr Clifton trustee on trust to  pay half the yearly interest to herself and the other half to Mr Clifton for  six year and at the end of that period to transfer the whole to the trustee of  the settlement of she also give he half the sum award for interest since that  sum represent the interest on the minority interest as well as on the rest  Mylne and keen here then be a distinct recognition of Mr Clifton right to the  minority interest and a actual transfer to he of the interest of that minority  interest during Six year which he receive for the six year accord and in the  year a deed poll be execute by lady Cockburn and sir William whereby the  capital stock be divide into two equal part and one transfer to Mr Clifton his  trustee and party to who he have pledge it in December of the same year the  further award of pound carnatic stock be make in lady cockburn favour as  executrix of major rumley but in consequence of outstanding claim on the major  estate which remain to be liquidate no settlement be come to with Mr Clifton  concern this sum until the year in that year it be agree that both lady  Cockburn and Mr Clifton shall receive from the last mention sum of stock  yearly payment of pound each be equal moieties of the interest which it be  deem safe to appropriate have regard to the claim upon the estate no doubt be  start with respect to the interest during the minority and its accumulation  belong to Mr Clifton and on the foot of this arrangement Mr Clifton give sir  wm Cockburn a bind of indemnity in case of those claim exceed the reserve thus  keep to meet they in August the further award of pound stock on account of  major Rumleys bind be make to lady Cockburn but though some loan transaction  have since take place between Mr Clifton and sir wm Cockburn do deed or  agreement appear to have be execute upon this last payment be make nor any  further settlement as to the stock receive under major Rumleys will Mylne and  keen throughout the whole of the transaction which take place during  Lady Cockburns life the same assumption always prevail that Mr Clifton be  entitle to onehalf of the minority interest whether it come from major Rumleys  or from dr davis estate and as well in those transaction in which both party  concur as in matter necessary confine to lady Cockburn or to lady Cockburn and  the family of her three husband thus in the year she make her will and  distribute by it her whole property among the Cockburn but she express state  that Mylne keen er p have provide for her son Charles Clifton during her life  she have now nothing to leave he and his dear child but her blessing and  prayer nor can anything be more just for the settlement as she understand it  and she have act upon it give he onehalf the fortune she possess at her last  marriage with all the interest accrueing upon it at the time when it be reduce  into possession it give he as much as sir William Cockburn and all her second  family together so in the year she execute her power of appointment by a deed  of which much have be say in the course of this cause and she appoint or  profess to appoint her whole personal estate but it be clear as well from the  deed itself as from all the evidence in the cause that she proceed upon no  supposition of the minority interest have be reserve to her in the event which  have happen of the fund be realise after Mr Clifton have attain majority this  deed it be true contain error of calculation and of fact hardly conceivable in  a person apparent so accurate in all business transaction thus it set out with  state that a power of name new trustee in the settlement of have be reserve to  sir William Cockburn and herself which be quite contrary to the fact and it  state the stock in which her fortune have become invest as pound whereas its  amount on her Mylne and keen own assumption with respect to the bind for  pagoda be no more than pound but the assumption which it make respect the bind  may be take either as find on a error in law or in fact it can make no  difference in the conclusion to which we must come upon this instrument when  Mr Clifton come forward to claim his right under the settlement and allege  that whatever these may have be accord to its legal construction lady Cockburn  have conclude herself and party claim under he from set up that construction  upon one point by the deed of and which transfer to he his share accord to one  construction of the original instrument he have a clear title to assert his  right under that settlement against any construction which she may have give  it upon another point in a deed long subsequent and to which he be not a party  it be say that if she make a mistake of construction in his favour as to dr  davis fund in and with respect to the minority interest those who claim under  the settlement of have a right to take what she there give they at his expense  by a opposite mistake of law against he but independent of the consideration  that the mistake in his favour be clear one of construction and that the  mistake against he respect the capacity in which she take the bind for pagoda  much more resemble a mistake of fact it be to be observe that suppose the two  case be exact parallel and that she have first pay he money through error in  law and have afterward also through error in law pay away money which belong  to he nothing can be more clear than his right to recover the latter money  without be call upon to refund the former she or those who represent her can  set off a payment make to he Mylne and keen against his demand of what be his  right unless she or they can recover from he what have be so overpay now I be  of opinion upon all principle and all authority that the payment make to he in  respect of minority interest can not have be recover by her I do not feel it  necessary to argue upon the present question the distinction betweenpayment  make in error of law and in error of fact the distinction it maybe observe be  somewhat more easy to lie down in general term than to follow out in  particular case even as regard the application of the rule admit it to be a  correct one and I think I can without much difficulty put case in which a  court of justice but especial a court of equity will find it a extreme hard  matter to hold by the rule and refuse to relieve against a error of law at any  rate there can be no reason to find fault with the case where equity have  relieve notwithstanding the distinction for in truth they lie on the very  border of the two kind of error and be rather to be class among instance of  error in fact than in law even where there be no circumstance of circumvention  or fraud as there clear be in some of they thus Pusey v Desbouverie p wms be a  release to her brother by a sister of her orphanage part accord to the custom  of London for a four of its value and it be strong argue that she have not be  inform of the amount she be give up Broderick v Broderick I p wms be a case of  plain fraud a release by a heir at law to a devisee of all his right for  guinea on a recital that a will have be duly attest when it be not the court  Mylne keen er p express decide on the ground of pressingdown very Mylne and  keen from the heir and supplying an answer to one falsehood in the recital  cock v Pratt I Ves sen be a mix case of influence and mistake the influence be  that of which this court be peculiar jealous where a parent take advantage of  a child just come of age Ramsden v Hylton Ves sen consist much rather of  mistake or ignorance of material fact than error in law and Bingham v Bingham  I Ves sen be a case of certain a very startle nature for a person have sell  another a estate which in truth belong to the purchaser but the present case  do not call for any such argument it be to be regard as a act for a long  course of year upon a give construction of a clause in a settlement the clause  admit of two interpretation and far from absolute clear and certain in its  import the party put the construction be the maker of the settlement the other  party the member of the settlors family the transaction in the course of which  the construction be act upon be domestic arrangement entire it be unnecessary  to cite authority to show how strong the court always lean in support of  family arrangement and how reluctant it will disturb they nor be it necessary  to go so far as be do in Cory v Cory I Ves sen where a compromise make under  the influence of intoxication be support by Lord Hardwicke as tend to settle  family difference or in the old case where paternal influence direct exert be  hold insufficient to set aside what be do under such pressure the more  moderate view of the subject take in late instance such as Stockley v Stockley  I v b be enough to bear out Mylne and keen the only proposition I have any  occasion here to maintain that a construction far from be plain and gross  erroneous impose upon a clause in a family settlement ought not if act on by  the maker of that settlement to be disturb by this court after their decease  nothing can tend more strong than lady cockburn will to show that she act  throughout upon one view of Mr Clifton right and that have she entertain a  different view her course in dispose of her property may have be different she  say that she leaves he nothing because she have provide for he in her lifetime  this be upon the supposition that he be to have the minority interest with its  accumulation if she have know that he be by the more accurate construction to  have so much less say pound or pound less how can we tell that she will not  have say he shall have it notwithstanding true it be not receive while he be  on our band true that we struggle to maintain he when we have no help from  this source of supply but now that the struggle be over he shall have it  nevertheless how can anyone undertake to say that but for her firm believe it  be his by settlement she will not have make it his by her will that if she  have know it be her own by right she will not have dispose of it in his favour  who shall say that if the erroneous or doubtful construction on which she act  have be explain to her she will not immediate have set all right by another  instrument give he what she now find he be not entitle to this view of the  subject appear to have strike the master of the roll very forciblya  circumstance which I mention the rather because it show that Mylne and keen  his honour have well consider the case in both its branch and that he be quite  prepare to decide it upon the second ground have he not conceive that the  construction which he put upon the settlement preclude the necessity of go  further into the argument if it be say that Mr Clifton in this case be a  volunteer and that in the deed of and he be not a party take a interest under  a misconception of right for a valuable consideration inasmuch as the  settlement of be voluntary as regard he it must at once be admit to be so the  consideration of marriage in that settlement certain do not extend to he the  child of a former marriage he take under that and under the subsequent and  consequential deed as a volunteer unless in so far as his agree to the  postponement and his give the bind of indemnity constitute a consideration but  he be no more a volunteer than those with who he be now in conflict they too  take from the bounty of lady Cockburn the same settlor and she may have  execute the power of appointment which she reserve under the settlement in  favour of Mr Clifton as well as of sir William Cockburn or the child of the  three marriage or to the exclusion of all her child Mylne keen er p of the  first as well as of the last in this respect the party stand upon the selfsame  foot and they who now contest his right with Mr Clifton be as his honour  observe not lady Cockburn or any one represent her but the other object of her  benevolence that she contemplate throughout the possibility of his have much  more than a distributive share of her property be manifest by the settlement  she give he his sister share in the event which have actual happen of her  predecease and she thus provide for a case in which Mylne and keen he shall  have as much of the capital as herself her husband and all the issue of her  contemplate marriage together can possible ever take I have no hesitation in  affirm the decree of the master of the roll and in so do it become I again to  express my concern that all the party do not agree to the recommendation of  the common friend to who I will not say they refer their claim but to who they  resort for counsel and assistance where such advice fail it be possible they  may not take any that I can offer I shall therefore close my observation upon  the case by add that I see nothing on either side which call for any  expression whatever of blame and that this decree be affirm