case the earl of Tankerville plaintiff sir george coke Mr ruth and Mr mill  executor of Charles late earl of Tankerville decease james earl of Berkeley  survive trustee Lord Limington and lady bridget his wife William paulet Esq  and lady Annabella his wife William Wilmer Esq and lady mary his wife daughter  of the late earl of Tankerville decease Mr gordon executor of grey bennet one  of the young son of the late earl of Tankerville Elizabeth Misson executrix of  sir james Misson a trustee Charles bennet Esq common call Lord ossulston old  son of the plaintiff henry Nevil alias grey devisee under the will of ralph  Lord grey and Charles Wilmer son of William Wilmer defendant at the chancellor  house Lord chancellor a have a power to charge only pound apiece the other  pound apiece shall not be make good out of his personal estate because he  design only to charge the land and have devise away the residue of his  personal estate if one grant a annuity out of the manor of dale and have no  such manor yet his person be liable a have a power to charge land with portion  for young child suffer a recovery and after by will recite his power he charge  the estate with pound for the portion of his daughter and devise her pound the  recovery have extinguish his power the pound charge on the land be decree to  be pay out of his personal estate Mr solicitorgeneral for the plaintiff this  bill be bring for a specific performance of article enter into by the  plaintiff father previous to his marriage with mary the daughter of the late  ford Lord grey decease and to be relieve against two deed of appointment  whereby the late earl of Tankerville charge the ossulston estate with the  payment of pound apiece for the portion of the defendant his young child and  in order to set the plaintiff case in a clear light before your lordship I  shall consider how the several estate of ford Lord grey and of Charles late  earl of Tankerville stand limit at the time of the execution of these article  part of the estate of ford Lord grey be in settlement and part out of  settlement the land in settlement be by indenture of lease and release date  respective the saint of may and the first of June mosely report convey by  William Lord grey his grandfather in trust to the use of himself for life  remainder to his son Ralph for life remainder to ford the first son of Ralph  for life remainder to his first and every other son in tail male remainder to  Ralph the second son of Ralph for life remainder to his first and every other  son in tail male remainder to Charles the three son of Ralph for life  remainder to his first and every other son in tail male with proper limitation  to trustee to preserve the contingent remainder and for default of such issue  to the four and every other son of Ralph in tail male successive remainder to  the heir male of the body of William in tail male remainder to his own right  heir in ford Lord grey by indenture of lease and release convey all his land  out of settlement to George earl of Berkley and other and their heir in trust  as to part of the value of pound per annum out of the rend and profit or by  mortgage or sale or otherwise as they shall think convenient to pay off and  discharge all his debt by mortgage statute or recognizance and then to raise  pound for the portion of his daughter mary in such manner as he shall appoint  and if he shall mosely report er p die before any appointment in trust for her  and her heir and after the raise of those sum then to raise any other sum he  shall appoint and for want of such appointment in trust for those to who the  land in settlement shall come after his decease and as to the other part in  trust to pay his debt by bind specialty or note and then in trust for he and  his heir John Lord ossulston by his will and codicil date the that of November  devise all his land to his son Charles for life without impeachment of waste  remainder to his first and every other son in tail male remainder to the heir  male of his own body in tail male remainder to his own right heir with a power  to his son and the several heir male as they several and respective come into  possession to make a jointure for his wife after the rate of pound for every  pound of her portion and to charge the say land with portion for young child  the estate of ford Lord grey and of Charles Lord ossulston stand limit in this  manner article be enter into date the that of June between the say ford Lord  grey and Charles Lord ossulston recite whereas a marriage be intend to be  short have between Charles Lord ossulston and mary the daughter of ford Lord  grey and whereas ford Lord grey have convey part of his estate in trust inter  all to raise pound for the portion of his say daughter which money can not be  immediate raise because as I have already observe mosely report to your  lordship the trust be in the first place for the payment of debt which at that  time be not full satisfy and whereas by the will and codicil of John Lord  ossulston the ossulston estate be settle in such a manner on the Lord Charles  that he can not make a jointure so soon as the say marriage be intend to he  have for by the codicil as the jointure be to be proportionable to the quantum  of the portion it can not be settle till the payment of the portion ford Lord  grey covenant if the say marriage too king effect to enter into a security for  the payment of pound ayear interest till the raise of the pound in  consideration whereof Charles Lord ossulston covenant that on payment of the  pound he will assure land in feesimple in the kingdom of England of pound  ayear at least to the use of himself for ninetynine year if he shall so long  live without impeachment of waste remainder as to part of the value of pound  ayear to his wife for life for her jointure remainder of the whole to his  first and every other son in tail male remainder to his own right heir and in  case the say Lord ossulston die without issue male the say land be to stand  charge with the payment of pound for daughter portion but if he die leave  issue and one young son or daughter he or she be to have pound for their  portion if more son or daughter they be to have pound apiece to be raise out  of the say land and it be covenantee and agree by and between the party that  if Lord ossulston die before the payment of the pound or the settlement of a  jointure the jointure shall not be make or the portion pay to the executor of  Lord ossulston but to the proper use of mary herself and if mary die without  issue in his life he be to be pay only pound within one year after her decease  and it be further agree that if ford Lord grey die before the payment of the  pound the estate charge therewith shall descend on mary and her heir in lieu  of the say portion and jointure the marriage be afterward have and Lord  ossulston have six child by his say lady ford Lord grey afterward earl of  Tankerville die the that of June have make his will and appoint Lord ossulston  his sole executrix and Ralph Lord grey his brother enter on the estate as next  in remainder the that of may article be enter into between the say Ralph Lord  grey and Lord and lady ossulston as sole executrix of her father the late earl  of Tankerville decease recite that whereas difference have arise between the  party inter all about several security which Ralph Lord grey have become bind  in with his brother the late earl of Tankerville in order to prevent and put a  end to the same it be agree that Ralph Lord grey shall pay off pound due by  mortgage of part of the say grey estate to lady grace pierpoint and John Savil  Esq and pound due by mortgage of another part of the say estate to the earl of  Rochester and the say mortgage mosely report be to be assign to Lord ossulston  as a security for the payment of pound agree by these article to be pay by  Ralph Lord grey to Lord ossulston and that he shall indemnify Lord and lady  ossulston from the say mortgage and that he shall pay a annuity of pound ayear  to Mr Ireton and pound to lady ossulston in full of her portion and of all her  right and title to the premise so mortgage by her late father as aforesaid and  more effectual to enable Ralph Lord grey to make mosely report er p these  several payment Lord and lady ossulston covenant that land of pound a year  part of the land contain in the settlement of of which Ralph Lord grey be only  tenant for life shall by act of parliament be settle on Ralph Lord grey and  his heir and that if there be occasion to raise money before the say act can  be pass they will join with he in the mean time in proper conveyance and that  on payment of the pound they will reassign the mortgage as Ralph Lord grey  shall appoint and Lord ossulston for himself further covenant and agree that  on payment of the pound he will settle in jointure on his lady pound a year  for every pound of her portion and pursuant to these article that of April  Lord and lady ossulston by fine and recovery and indenture convey the say land  to Francis Ryles for the term of one thousand year as a security for the  repayment of pound borrow of the say eyles to pay off and discharge the earl  of Rochester mortgage remainder to Ralph Lord grey and his heir and on the  that of February a act of parliament pass to confirm these article and Ralph  Lord grey enter into a bind of the penalty of pound for the payment of the  pound and interest to Lord ossulston but before the same be pay Ralph Lord  grey die have first make his will date the that of march and thereby devise  all his real estate to Lord summer and other in trust to pay all his debt and  then in trust to convey the same to Henry Nevil alias grey the defendant for  life remainder to his first and every other son in tail male with several  remainder over in lady ossulston die the that of may Charles Lord ossulston  then earl of Tankerville by deed poll recite the will and codicil of John Lord  ossulston and his intermarriage with mary the daughter of ford Lord grey by  who he have six child and that a treaty of marriage be on foot between Mr  Wallop and his old daughter lady Bridget and that the say Mr Wallop have agree  to accept pound in full of her portion the earl of Tankerville in order to  raise the money by virtue of the power give he by the say will and codicil and  of all other power appoint and set over part of the feefarm rend of the  ossulston estate to James earl of Berkley and sir John Pennet for a thousand  year in trust to raise pound as a portion mosely report for the say lady  Bridget Payable at her day of marriage or at his decease or in his lifetime as  he shall appoint and Mr Wallo now Lord Limington covenant that whereas the  lady Bridget be entitle to pound by the will of her grandmother on payment of  the pound he will give a release for the pound to the earl of Tankerville and  this deed of appointment be assign to Lord Limington to secure the payment of  the pound and the marriage be have Lord and lady Limington execute a general  release to the earl of Tankerville and the earl have assign over the bind of  pound of Ralph Lord grey to Lord Limington as a security for the pound Lord  Limington reassigns the say deed of appointment to sir James Misson in trust  for the earl of Tankerville his executor administrator and assign the that of  December Charles earl of Tankerville by deed poll recite the will and codicil  of John Lord ossulston and the marriage of lady Bridget and that her portion  be pay and the rest of his young child be unprovide for by virtue of the power  give he by the say codicil and of all other power assign over several feefarm  rend of other part of the ossulston estate to the same trustee for one  thousand year in trust to raise pound apiece for his young child after his  decease or in his lifetime as he shall appoint Henry one of the young son die  in the lifetime of the earl his father Charles earl of Tankerville make his  will whereby he recite the will and codicil of his father and the two deed of  appointment which he thereby confirm and lest there shall be any defect in the  execution of his power or that the say feefarm rend shall not be sufficient to  raise the say portion therefore in further execution of his power by the say  codicil and of all other power and authority he in that behalf enable he  devise all the ossulston estate to the same trustee for a term of two thousand  year if the feefarm rend shall not be sufficient with ease and speed to raise  the say portion to his daughter Wallop and his other young child to raise the  say portion or so much thereof as the say feefarm rend shall not be sufficient  to raise it be his intention that the real estate thereby devise shall be a  additional security but not to give they more than pound apiece then he devise  all the rest and residue of his real and personal estate to his executor sir  George coke Mr ruth and Mr mill in trust out of the rend and profit or by  mortgage or sale to pay mrs Sidney pound a year for her life and the surplus  to grey Bennet and lady mary Wilmer two of his young child and after by a  codicil date mosely report er p the that of April he devise the say surplus to  grey Bennet to be pay he at his age of twentyone year and if he die before  that age to his grandson the defendant mosely report Charles Bennet old son of  the plaintiff and Charles Wilmer and if either of they die before the age of  twentyone year then to the survivor of they and soon after die and grey Bennet  be since dead under the age of twentyone year the first point to be consider  arise from the marriage article of whereby the late earl of Tankerville  covenant to settle land of pound a year and no settlement have be make we have  a plain demand against his executor to have land of that value purchase out of  the asset of the say earl or to have his personal estate apply to that purpose  as far as it will go but it be say these land be to be convey and assure on a  condition precedent on the payment of the pound which not have be pay the earl  be not oblige to perform the article but it plain appear that this money be  pay for though it be not actual pay by ford Lord grey in his lifetime yet the  principal be charge on the estate by the settlement in and ford Lord grey  confess a judgement defeasanced for the payment of the interest so that both  the principal and interest be secure which in equity be consider as a payment  beside lady ossulston be executrix of ford Lord grey and possess herself of  all his personal estate which be very considerable though we do not know the  exact amount of it and therefore it shall be presume that the personal estate  with the pound secure to her by Ralph Lord grey be a full satisfaction of the  pound but suppose the late earl of Tankerville have compound this debt for  pound yet in regard to the plaintiff and his other child who be no party to  that composition it must be consider as if the whole be pay but the executor  likewise object that the late earl of Tankerville at the time of the article  be not seize of any land in feesimple and therefore it can be suppose he  design to purchase land but that his intention be that the ossulston estate  which be about pound a year shall go as a satisfaction accord to the article  but how can the article hear this construction whereby he covenant to convey  and assure land in feesimple to such use now he be only tenant for life of the  ossulston estate and it be no answer that he will permit his son to enjoy it  for it be not in his power to hinder he he claim by the same will with his  father so this be not like the case where the covenanter suffer land to  descend but the plaintiff notwithstanding the large portion of his mother by  these marriage article will be the purchaser of nothing but if the ossulston  estate be take notice of in these article the nearness of the value and the  likeness of the limitation shall induce your lordship to think that these be  the land intend to be settle that will determine the other question of the  portion by the codicil of John Lord ossulston the power of Lord Charles to  make a mosely report jointure be limit but to provide for young child be  indefinite yet regard must he have to the value of the estate in the execution  of it the ossulston estate be about pound per annum and be charge by the deed  poll with the payment of pound so that if the power be consider in this light  only it be not well execute for though the codicil give the late earl a  unlimited power this court will never decree a unreasonable execution of it  for by that mean though he be only tenant for life it will be in his power to  disinherit his old son contrary to the intention of the donor that the bulk of  the estate shall go to he but if the article refer to the ossulston estate  they restrain this general power it be proper on the marriage to ascertain the  portion of the young child it be therefore agree if there be daughter and no  issue male they will have pound if a son and young child they shall have pound  apiece and if the father can say I have make you a satisfaction by the  ossulston estate for the land to be settle by the article the plaintiff sure  may say your unlimited power over that estate be restrain by the same article  for if the article be take in this sense what advantage be they to the  plaintiff but by a restraint of the power and the ossulston estate can  otherwise be take as a satisfaction of the covenant for if by the article he  covenant that the ossulston estate shall be limit to such use it can come to  the plaintiff with no great burden than the article charge it but it be say  that the plaintiff in his answer to a bill file against he by his late father  have admit he have a power to charge pound apiece for the portion of young  child and submit to the raise of they as to this objection your lordship will  please to observe that Lord Limington have assign over the deed poll of  appointment of pound to sir James Misson in trust for Charles late earl of  Tankerville the say earl file a bill in the name of Lord mosely report er p  Limington and his lady against the now plaintiff his son to have the money  raise and also another bill in the name of the other young child to have their  portion raise to which bill the now plaintiff put in his answer and insist  that the say sum be high unreasonable and no way proportionable to the value  of the estate and contrary to the intention of John Lora ossulston the  testator who design the estate shall continue in the name and blood of the  bennets at this time the plaintiff have no knowledge of the article of and be  under the displeasure of his father and in great difficulty upon some proposal  from the late earl he agree to put in other answer in which he own the pound  apiece for the portion to be well charge and submit to the raise of they but  at this time too he be a stranger to the marriage article which be industrious  conceal from he but the case appear to he single on the will and codicil of  mosely report John Lord ossulston under these circumstance and ignorance of  his title he be induce to put in those answer the late earl die in and then  upon examine his paper several brief be find and case for the opinion of  counsel wherein these marriage article be take notice of upon which the  plaintiff apply to the defendant mill who be agent and solicitor for the late  earl for the say article but he deny they be in his hand the plaintiff file a  bill against he for a discovery and in his answer he confess that they be  afterward find among his paper by one of his clerk so that the plaintiff  answer be put in while he be ignorant of his title and it be industrious  conceal from he shall not injure he for if under this ignorance he have join  in a mortgage or a conveyance the court will have relieve he as appear by  number of precedent and the case of a answer only be strong upon which your  lordship be to make a decree these be the general point in this case there be  likewise another question that particular relate to Lord Limington whether  over and above the pound he receive as a portion with his lady he be entitle  also to pound by the will of the late earl of Tankerville the will take notice  of the appointment of pound to lady Limington and lest the execution of the  power shall be defective or the feefarm rend not sufficient the testator  charge all the ossulston estate with pound apiece for all his young child  indefinite which word they say amount to a new devise of pound to lady  Limington as she be express mention with the young child the deed poll of  assignment to Lord Limington be reassigned by he to the late earl who intend  by his will not to vary the portion but to make a further security for the  payment of they it do not appear at that time that the portion be reassigned  and that the late earl stand in the place of Lord Limington but he have  express himself in his will as he do by his bill but the word that his  intention be not to give they more than one pound apiece exclude all double  portion therefore another question be how this money shall go whether it shall  be raise for the executor in trust for the residuary legatee or sink into the  inheritance for the benefit of the plaintiff because the power be to be  execute in a reasonable manner Monday march the that the Lord chancellor be  assist by sir Robert Raymond Lord chief justice of b r and Mr baron comens Mr  solicitor general open the case again and argue to the same effect as before  mosely report Tuesday march the that Mr lutwych the article in be enter into  previous to the marriage and on a valuable consideration and if they be not  construe to restrain the power to provide portion for young child they will be  of little or no import and though it be agree by those article that if ford  Lord grey die before payment of the pound the estate charge shall go to mary  in satisfaction of the portion and jointure it be not say that it shall go in  satisfaction of the land to be settle and the descent of the land be in itself  a payment though Lord ossulston afterward agree to accept pound from Ralph  Lord grey for the say portion so that the plaintiff be plain entitle to the  benefit of these article the late earl of Tankerville be by the will and  codicil of his father John Lord ossulston tenant for life with a remainder to  his first and every other son in tail male and with a power to make a jointure  and provide portion for young child covenant by article previous to his  marriage to settle land of every year on himself and the issue of that  marriage and pound a year for a jointure for his lady and pound apiece for the  portion of young child if we consider these article without any relation to  the ossulston estate we be in the mosely report er p ordinary case the  plaintiff be a purchaser and may come into this court to have a specific  execution of they and the late earl though he have take no notice of his power  in the article yet his covenant to settle a jointure will be construe to be a  execution of his power as be adjudge in lady Coventry case but it be hard to  say that the land which the plaintiff hold under the will of his grandfather  shall be take as the hand which his late father covenant to assure so that in  consideration of marriage and of a portion of pound he covenant to settle a  estate he can not hinder he of but suppose this estate to be name in the  article and that the late earl design to refer to it it fall short of the  value and be not a improvable estate but consist in feefarm rend which be not  as valuable as other estate because they be not capable of improvement it be  agree by these article that the old son shall have the land subject only to  pound apiece for the portion of young child this covenant have abridge the  late earl general power and after the execution of these article he can no  more appoint a large provision than he can make a sale of any part of the  estate and if the ossulston estate be to be take as a satisfaction of the  covenant this be the only thing he part with by these article but suppose they  out of the case no unlimited power mosely report will be establish by a decree  of this court if it be unreasonable execute by the codicil it appear that John  Lord ossulston design the estate shall remain in the family and where the  power be execute in such a manner as total to defeat this intention it be in  the discretion of the court of equity to restrain it and it appear from the  article that the party thereto think pound apiece to the young child a good  execution of the power though the lady bring so great a portion as to the  answer a court will relieve the plaintiff against it even after a decree as it  be obtain from he without know of the article and by the plaintiff in that  cause conceal from he what be material for he to know for the bill be real  bring by the late earl though in the name of the Lord Limington who have  assign over the appointment to he Wednesday march the that Mr attorneygeneral  for the defendant Lord and lady Limington Mr Paulet and lady anabella his wife  and Mr Wilmer and lady mary his wife this case depend upon the codicil and  article and may be consider under these two head first whether the article  ought to be carry into execution and second in what manner and whether so as  to defeat the appointment for the portion of young child it appear from the  article that the late earl be unable to make a present settlement and these  article be afterward lie aside and the earl always act without any regard to  they which be a sufficient evidence that the party waive they and the set they  up now may create confusion and defeat subsequent settlement in ford Lord grey  convey certain land in trust to pay his debt and raise pound for his daughter  portion Payable as he shall appoint and if it be not raise in his lifetime in  trust for her and her heir otherwise it be to go as the settle estate at  Chillingham by the marriage article ford Lord grey covenant to pay pound for  his daughter portion no provision be make for the payment of the principal but  he confess a judgement to secure the payment of the interest and there be  proviso in the article that if Lord ossulston die before the portion be pay or  a jointure make the portion shall not be pay to his executor but to lady  ossulston and that if ford Lord grey die before the portion be pay all the say  land shall come to lady mary and her heir in full satisfaction of her portion  and jointure the next consideration be what have happen since these article  ford Lord grey die before the mosely report money be pay and controversy have  arise between Ralph Lord grey who succeed he in the honour and estate and  Charles Lord ossulston and his lady in relation to the estate and encumbrancer  by article date the that of may it be agree that Ralph Lord grey shall pay of  the several encumbrance and pound to Lord ossulston not only in satisfaction  of his lady portion but of her right and title to the land and premise in  mortgage and that ford ossulston shall settle pound a year for every pound  this be a new agreement and Lord and lady ossulston covenant to convey the  inheritance to Ralph Lord grey and his heir which show they proceed on the  proviso that have happen by ford Lord grey do before the payment of the money  but allow these article be not waive but be to be carry into execution the  next question be whether the ossulston estate be to be deem as a satisfaction  of the covenant mosely report er p and whether these article shall set aside  the appointment in favour of the young child it do not appear indeed that any  land descend in fee to the plaintiff from his father the late the earl but his  father can have hinder he from enjoy the ossulston estate for no estate be  limit by the codicil to trustee to preserve the contingent remainder before a  son be bear the late earl can have bar the estate by a fine or a feoff and  this estate come limit to he as by the article the late earl under his general  power appoint a term of a thousand year for raise pound to lady Limington and  another term of a thousand year for raise the like portion for his other young  child the article be general they recite indeed that the ossulston estate be  so settle that the earl can not make a jointure but then he covenant to convey  land in fee so that this general covenant create no lie on any particular land  where it be agree by article to settle particular land they create a lie on  that particular estate and the party be consider in equity to have the same  interest as if the article be actual carry into execution but where the  article be general the person entitle to the benefit of they claim only as a  general creditor by specialty as be admit in the case of lady Coventry in that  case a particular power be recite and the earl covenant to settle land by  virtue of his power or otherwise which word be adjudge to be only auxiliary  beside settlement be draw wherein the particular land be describe but the earl  die before the execution of they so these article can no way affect his power  under the codicil either in law or equity which he have execute by these deed  of appointment and consequent the appointment be good and if the article do  not affect or restrain this power I shall next consider whether it be execute  in a reasonable manner it be plain John Lord ossulston design to trust his son  with mosely report the execution of this power and there be no instance where  a court of equity have control such a power legal execute by a father in  favour of his child and the testator give this power to his son not only with  a view to the ossulston estate but also with regard to any other estate he may  be seize of by marriage or otherwise at the time of the execution of it and be  the very reason why he give he a discretionary power and when the late earl  execute this power the grey estate also of pound a year be descend on the  family but this point be determine by the plaintiff second answer which I do  not consider now as a good answer in respect of the article for if they be  conceal from he without doubt it shall not prejudice he as to they but as far  as the point be open and know to the plaintiff so far it be a good answer now  the codicil be particular state and set forth the bill and there be no proof  of any imposition on the plaintiff and he have constant pay the interest of  the portion since his father death the next question relate to Lord Limington  who claim pound under the will of the late earl in which lady Limington be  express name and if he do not take by this will he will not have a shilling  out of the estate of her father though he compound a debt of pound and pound  interest for pound so it be natural to think the late earl her father design  her a recompense and therefore by his will he set up the appointment and  discharge the trust thereof for himself in favour of lady Limington the  portion be to be raise for all the young child and there be as full a  declaration that the pound shall be raise for lady Limington as for the other  but they rely on the word but so as not to give they more than one pound  apiece they show his intention that only one pound for every child shall be  charge on the estate but this be not to be apply to the other part of the case  that lady Limington shall not have the pound because she before compound a  debt for another pound but the word as to her be to be take in the same sense  as to the other child if his power be well execute the appointment be good and  the assignment over of it to the late earl be good and he have a power to  devise it to any person as we think he have to lady Limington N B the court  will not allow parole proof to be read of Lord tankerville intention to give  the pound by his will to lady Limington though her counsel insist they may  read proof of his have declare so though they can not read it to charge the  real estate by the will post Cas Mr will two objection have be make to the  raise pound apiece for the portion of the young child the article of mosely  report and the unreasonableness of the sum but the article do not affect this  question for two reason first because they be at a end and second because if  they be still subsist and the plaintiff mosely report er p be entitle to have  they carry into execution they create no lie on the ossulston estate but the  plaintiff can have a satisfaction only out of the real and personal asset of  the late earl the waiver of the article depend on the word and the subsequent  fact ford Lord grey die before the portion be pay in which case the article be  not to be carry into execution for then pound a year will descend on lady  ossulston in lieu of her jointure and the plaintiff will have no occasion for  a settlement for those land will come to he by descent from his mother and the  ossulston estate also by the will of his grandfather the subsequent  transaction also show the article be not in be because the party take no  notice of they and the article of the that of may and the act of parliament to  confirm they make no mention of these marriage article but go on another foot  for if the pound have be pay to make up the pound the late earl will have  covenant to make a jointure for the whole pound and not for what he receive  and though lady ossulston be executrix of ford Lord grey if she have retain  any asset the value of they as that they amount to pound or the like sum will  have be mention but if the article still subsist the plaintiff be not entitle  to a satisfaction out of the ossulston estate for though the codicil and the  ossulston estate be take notice of in the article that recital do not show he  intend to settle that estate but rather the contrary for the word be that John  Lord ossulston have so settle the estate that Lord Charles can not make a  jointure so they can effect this provision which we claim not by the article  but by the will of our grandfather as to the unreasonableness of the sum the  case of a trustee and a father be very unlike and all the party seem to allow  this a reasonable provision because the think pound a convenient portion when  the family be possess only of the ossulston estate and by the same rule pound  be a reasonable provision when the grey estate come into the family for the  plaintiff by his answer confess both estate to be pound a year and his answer  be very consistent for Henry one of his brother die between his first and  second answer so that though he may think the sum unreasonable when he put in  his first answer yet after the death of one he may submit to have they raise  for the other mosely report as to the claim of Lord Limington it do not appear  that when the late earl give he security for his lady portion that he design  the appointment shall be conceal but rather that it shall be keep on foot for  he may think it proper to raise the money in case any of the child die or for  other reason and it be plain by his will he do not design this money shall  sink into the inheritance for he direct it to be raise and have not give it to  the other child or any other person and his intention may be answer because it  will be only put her in the room of his son who die between the marriage and  the make of mrs will and the word but not to give they more than pound apiece  be in our favour they imply he design all the young child shall have pound  apiece therefore we must have pound by the will for we have nothing before out  of the estate and if the portion be to be pound apiece Lord Limington never  make any agreement to bar he of this portion because he be also ignorant of  the article and as he have have nothing from the late earl the portion he  receive shall not be take as a satisfaction Mr mead as to the question whether  the appointment be unreasonable there be a material difference whether the  young child apply to the court to have a defective execution of this power  supply in which case the court may consider in what manner they will relieve  they or whether the owner of the inheritance come to set aside the power  though it be well execute at law it be necessary also to consider the time  when these appointment be make the grey estate be then descend and these  appointment be in favour of the young child of the same mother by who that  estate come they say we be volunteer but it be as I say before a material  consideration that we be not plaintiff nor be the young child to be consider  mere as volunteer for Mr Paulet and Mr Wilmer marry and make settlement in  prospect of these portion Mr fazakerley if the power stand single the only  objection will be that it be unreasonable execute though there be no case to  warrant what the plaintiff insist on the Lord John ossulston may have give his  son Charles the late earl of Tankerville the whole estate why then shall the  court control the indefinite power he have give he and the execution be not  unreasonable if it be consider only in relation to the ossulston estate the  old son must be satisfy with the less estate the more young mosely report er p  child there be their quality as well as circumstance must be consider the  plaintiff own the estate to be pound a year it be probable too that Lord John  give the late earl this power with a view to his have a great estate if the  ossulston estate be pound a year no body can think the appointment  unreasonable and be it not the same thing since he have two estate of that  value and this be a provision for child the article do not determine or  restrain this power because they be no lie on the ossulston estate the  covenant be to settle land in fee the article indeed take notice of this  estate but not as of the estate that be to be settle but as of a estate that  can not be settle and since it appear that the late earl have it under his  consideration if he have design to settle these land in his covenant to assure  he will have refer to they Mr baron comens John Lord ossulston by his will and  codicil devise the family estate to his son Charles for life c with a power to  make a jointure and a provision for young child in Charles Lord ossulston on a  treaty of marriage with mary the daughter of ford Lord grey covenant to settle  pound a year in fee and that if there be a son of that marriage and young  child they shall have pound apiece for their portion and the grey estate be  charge with pound the portion of mary by article enter into between Ralph Lord  grey and Charles Lord ossulston and lady ossulston Lord ossulston agree to  accept of pound in satisfaction of his lady portion and of her right to any of  the mortgage premise and to settle pound a year jointure for every pound of  her portion but these article make no provision for young child Lord Charles  by two deed poll appoint pound apiece to be raise for the portion of lady  Bridget and his other young child out of part of the feefarm rend of the  ossulston estate and afterward by his will for a further security and to  prevent any defect in the execution of his power the rest of the ossulston  estate be make liable to the payment of these portion the first question be  whether pound a year be to be purchase and settle on the plaintiff or whether  the ossulston estate be to be consider as a equivalent and I be of opinion  that it ought for it be not the intent of the article that pound a year shall  be settle which will be the case if land of pound a year shall be purchase but  that the ossulston estate shall be settle for notice be take of it in the  article it be about that value and it be in the power of mosely report the  late earl to settle it because no estate be limit by the codicil to trustee to  preserve the contingent remainder as to the next question of the portion if it  stand single on the deed of appointment or the will I be incline to think that  pound for every young child ought to be raise though I allow that this court  will take care a general power be execute in a reasonable manner but will not  interpose if the execution be not apparent unreasonable but then another  question be if the marriage article do not restrain this power it can be deny  but a person may agree to confine himself in the execution of such a power let  we then consider if by these article the late earl do not limit his power to  raise of pound apiece he plain intend by these article to settle pound a year  in this manner pound a year for jointure of his lady pound apiece for young  child and the rest of the estate on the first and every other son in tail male  he take care of all the child of the marriage and if these article have be  carry into execution by a settlement of the ossulston estate the late earl can  not augment or increase those portion to the prejudice of his old son for by  the same rule he may lessen or diminish they for his advantage and when he  have once execute his power he can execute it again as be resolve in   in  Diggss case of a power of revocation but it be say that the article create no  particular lie the ossulston estate but I think where a man have such a  general power and he confine himself in the execution of it that must be apply  to the estate over which he have that power the article of the that of may  seem to I only to confirm the former article which be recite as they can be  perform at that time and the agreement to accept pound in full of her portion  be no variance from the marriage article because as there be difference about  the raise of this pound the rest may have be pay or otherwise satisfy and it  do not appear that any variation be design there be another question too  whether the pound for lady Limington not be yet raise as Lord Limington have  agree to take pound in full of her marriage portion shall go to he by the will  of the late earl or to the executor but this I shall speak to hereafter mosely  report er p Lord chief justice Raymond the prayer of the bill be to have the  benefit of marriage article and to set aside two deed of appointment the  article be not waive but be to be carry into execution and mosely report they  be not determine by the proviso of ford Lord grey die before the portion be  pay by the article themselves it appear that provision be make for the payment  of the interest and the principal before be charge on the estate and by the  article in there be a agreement either for a composition or the portion and no  other portion be mention and therefore the first article be so far carry into  execution that the interest be pay and the principal compound and the  composition accept in full of her portion and though it be say to be in bar of  all lady Ossulstons other demand yet still it be in discharge of her portion  too as these article then be to be carry into execution I think the ossulston  estate be permit to come to the plaintiff shall be take by he as a  satisfaction and it look as if the party to the article intend it for they  take notice of this estate and that it be settle by the codicil in such a  manner that the late earl can not make a jointure out of it so soon as the  marriage be to he have which be three month after but why be that codicil  recite but with a view to that estate out of which he can not settle a  jointure till the portion be pay and which he covenant to do on payment as to  the portion no doubt the power by the codicil be under the influence of this  court to see it execute in a reasonable manner but I do not find myself on  that point because I think the late earl have restrain himself by the article  for if the ossulston estate be to be take as a satisfaction of the article it  will be strange to say that the earl have the same latitude of power leave he  over that estate he have under the codicil no the article be a purchase of  those land which he covenant shall be charge only with portion of pound as to  Lord Limingtons demand the late earl of Tankerville accord to his power have  charge lady Limingtons portion on the estate but it be not yet raise the  estate have not bear its burden the appointment have be reassigned by Lord  Limington in trust for the late earl of Tankerville his executor administrator  and assign and the question be whether a new trust of this assignment be by  the will declare for Lord Limington but we shall consider further of this Lord  chancellor the power to provide for young child by the codicil be subject no  doubt to the direction of this court but the question now be if the late earl  have not restrain himself it appear by the article not to be the intention of  the party that pound a year shall be purchase Lord Charles be mosely report  then in possession of the ossulston estate of that value which will answer the  article and they plain refer to the codicil and this estate and the reason why  the party go upon article and that no settlement be make be because Lord  ossulston can not make a jointure till the payment of the portion as to the  power by these article all the child be purchaser he have limit the estate to  the old son and lie on pound apiece for the portion of young child and any  further charge be null and the appointment be void for so much the article be  not waive but by the plain intention of the party be still subsist I question  if they can be waive suppose the proviso have happen must the old son have  nothing at all because a great estate descend to the mother Lord Limington  agree to accept of pound and the assignment be make over in trust for the late  earl so the estate not have bear its burden this money must be raise prima  fancy for his executor but the question be if the will do not amount to a  devise of the trust and then lady Limington will take as a legatee and must be  pay after creditor but let this point be speak to on Friday Friday march the  that Mr solicitor general for the defendant Charles Bennet common call Lord  ossulston the will of the late earl of Tankerville take notice of the  appointment for lady Limingtons portion but not that it have be reassigned for  his benefit and that there may be a defect in the execution of his power or  that the feefarm rend may not be sufficient and to supply any such defect or  want of value and for the speedy raise the portion he devise all the ossulston  estate c the will make no variation of the right of the party but be rather a  confirmation and there appear no intention in earl Tankerville by this will to  transfer any right or to give a new right and if the security prove sufficient  and the power be well execute nothing pass by the will and the word but so as  not to give they more than pound apiece mosely report er p be put in to  evidence his intention and to avoid the present question because Lord  Limington have accept pound in full of his lady portion but it be object that  the word give show his intention to give they something by this will no he do  not design to give they any thing by the will or to introduce a new devise but  to confirm what be already give and use no devise word the assignment in trust  for the late earl be a secret at least his will make it so and if he have  design to renounce the benefit of this trust it be not to be suppose mosely  report but that he will have use word to that purpose so that when this pound  be raise Lord Limington will stand a trustee for the executor of the late earl  and it must go into the personal estate for the benefit of the residuary  legatee Mr attorneygeneral for the defendant Lord and lady Limington the late  earl of Tankerville by the assignment to sir James Misson be undoubted entitle  to the benefit of the appointment of the portion of lady Limington and to have  it raise either for his own benefit or for choose to who he shall dispose of  it and the question be whether he have devise it to lady Limington it be admit  he do not advance a shilling for her portion but compound a debt of pound and  pound interest for pound this therefore go to increase his personal estate and  it be to be presume that in honour and justice he will put her on the same  foot with her other sister and therefore the word shall have this construction  put on they if they be capable of it as we think they plain be the will recite  the appointment he have make in execution of his power it do not take notice  indeed of the assignment to sir James Misson not because it be a secret in the  family for that do not appear or that he will make it a secret by his will for  what purpose will that serve when at his death it will appear but because he  design to take no benefit by it he say that in execution of his power by the  codicil he charge the whole estate with the payment of pound to his daughter  Wallop and his other young child suppose then the former execution to be  defective be not this a new execution of his power express in favour of lady  Limington and it be mention to be for her in the same manner and form of word  as for the other young child and therefore the testator shall be suppose to  mean the same thing by the same word he limit by the will a new term of two  thousand year this be a new legal estate and a new trust be create for the  benefit of lady Limington the sum be to be levy and raise for the benefit of  his four young child and he make no distinction between they and the word be  as plain as if he have say for the benefit of his four young child which will  have admit of no dispute the word but not to give they more than pound apiece  show that he intend to charge the estate but with one pound not that he do not  design to devise this pound to lady Limington because she have receive pound  composition money for a debt and they can be take in this sense in respect of  lady Limington because they be equal apply to all the child and the dispute in  question be not whether two pound shall be raise but to who the trust of one  belong and those word show mosely report he design to give they something and  only manifest his intention that they shall not have two pound by his gift he  have give lady Limington nothing before Mr fazakerly by the express word of  the will the trustee be to levy and raise pound to his four young child so  that he have explicit declare the trust to be for their benefit and he say  afterward it be his intention that the portion shall be raise for the benefit  of his four young child so that to say he design three of these sum for his  young child and the four for his executor be say direct contrary to the word  of the will and the intention of the testator and he have not in view the  pound he have pay lady Limington but only the sum he have charge Mr baron  comens Lord Limington previous to his marriage with lady Bridget one of the  daughter of the late earl of Tankerville agree to accept pound in full of her  portion and to show that he do not expect any advantage from the sum to be  raise for young child portion pursuant to the power of the late earl he assign  all the benefit he may claim other by to the say earl when the earl make his  will it be certain in his power to have relinquish this advantage but the  question be whether the word be clear to give the pound to lady Limington and  from the construction of the whole will I think they be not the recital do not  show any such intention and it be plain by the direction that he design this  will only to supply any defect in the power or value of the feefarm rend this  be his design in express word and it be hard by a imply construction to put a  different meaning on they mosely report er p it be object that when be create  new term of year he say the trust of those term be to raise portion for his  four young child so doubtless it be he design the portion of lady Bridget  shall be raise as well as other portion and it can be intend from the word  that these portion shall be dispose of in any other manner than if they have  be raise by a decree or otherwise and then they who have transfer their right  will have hold they in trust for those to who they have assign they the  testator can not well have express himself otherwise but he do not say how the  money when raise be to be dispose but leaves that to be explain by former  agreement he have make appointment not only for raise the portion of lady  Limington but of the other young child and recite both appointment in his will  and his intention be that the estate devise shall be only a additional  security it be say that by the word mosely report but not to give they more  than pound a piece it be plain he design to give they something but I can see  the inference he give nothing by way of devise but use those word to exclude  any construction that he design by those new term to give more than he have by  former appointment Lord chief justice Raymond I be of the same opinion with Mr  baron comens there can be no doubt as it stand on the assignment for Lord  Limington have declare himself satisfy and assign over the appointment in  trust for the late earl of Tankerville but the question be whether the will  give this trust back again and we can by implication suppose so contrary to  the express word the will recite the codicil and the appointment and lest  there shall be any defect in the execution of his power or that the  appointment shall not be sufficient he charge all his estate with the portion  of his young child and vest a term of two thousand year in trustee for the  speedy and easy raise of the say portion that be to be raise by the  appointment and he say after that they be to be a further security for the say  portion as to the word but not to give they more than pound apiece he make  himself the giver by the appointment and declare he design to give they no  more and this he have already give to Lord Limington and the word be strong  against he Lord chancellor Lord Limington certain make a disadvantageous  bargain his lady be entitle to pound and interest and he be not unapprised of  her right because it be recite in his marriage article and he covenant to  release it and to accept pound in full of her portion and afterward he execute  a release and assign the deed of appointment for raise the money to sir James  Misson for the benefit of the late earl of Tankerville but the money must be  raise in the name of lady Limington and she will be a trustee for the earl but  the question be whether she be now a trustee for his executor or whether he  have devise the trust to her he certain have not in plain express word so that  his intention must be make out by implication which can never oust a express  declaration the plain intent of his will be lest there shall be any defect in  the execution of his power or the security he charge all the estate with a new  term which be not in all event to be liable but if the feefarm rend be not  sufficient then to raise the portion or so much as they will not raise his  intention be to raise the sum charge by the appointment then come the negative  word mosely report but not to give they more than pound apiece to show his  intention not to give the child more therefore since lady Limington have  receive pound and the will say she be to have no more we can construe it  otherwise so her portion be assign to the late earl of Tankerville must go to  his executor when it be raise Mr peer William for the defendant the young  child the late earl have devise pound apiece to his young child and your  lordship have determine he have a power to charge the estate with pound only  the residue ought to be make good out of his personal estate if one grant a  annuity out of his manor of dale and have no such manor yet the person of the  grantor will be liable to the annuity child be consider as creditor and  defective surrender be frequent make good by a court of equity for their  benefit in the case of Savil and Blackett decree in land be settle in trust to  the use of a for ninetynine year if he shall so long live remainder to trustee  to preserve contingent remainder remainder to his first and every other son in  tail male remainder over with a power to a to charge the estate with portion  for his young child a the trustee and his old son join in a common recovery of  the land afterward a make his will and recite his power charge the estate with  pound for the portion of his daughter and also devise to her pound there the  common recovery have extinguish his power Lord Macclesfield decree that the  pound charge on the estate shall be pay out of the personal estate mosely  report er p of the testator because it be the case of a daughter and that it  appear by the will he design she shall have it in that case the father execute  a power he have not here he have execute his power further than it extend Lord  chancellor you need not labour this point for by the will of the late earl of  Tankerville it appear that these portion be only to be raise out of the land  and the whole personal estate be devise away the court therefore declare that  the article date the that of June be subsist and Obligatory and ought to be  carry into execution and that the ossulston estate be the pound a year intend  by those article to be settle which be limit by the codicil of John Lord  ossulston to the plaintiff in tail male who be in possession at the death of  his father and Charles the late earl have do no act to defeat that limitation  it be to be consider as a mosely report performance of the article on his part  and therefore as to so much of the bill as pray a settlement of land of pound  a year on the foot of the say article the bill be to be dismiss and the court  also declare that the power give by the codicil of John Lord ossulston to  Charles his son to make provision for young child be restrain by the say  article to pound apiece and that under the deed of appointment and the will  pound apiece and no more be to be raise for and as the portion of his son grey  Bennet and of his daughter lady Limington lady Annabella and lady mary with  interest from the death of the late earl mosely report Thursday may the saint  de term pasch