case thomas blunden and hester ux he quer Frances barker Administr cum  testament annex John Hebbert defunct et all to ward off at the roll Mod Eq can  ab pl pl on a freeman widow customary part be bar by composition who shall  have the benefit of it whether the husband or child also whether a child  orphanage part be barrable by release or covenant for a valuable consideration  Mr Hebbert the upholder a freeman of London have issue by his first wife one  daughter the defendant mrs Barker marry his second wife the defendant Hester  and Feb article before marriage to settle land upon her and leave her pound in  money the wife before the marriage bind herself to a trustee in a bind of  pound penalty recite the article upon condition the bind to be void if she  survive the say John Hebbert her then intend husband and peer William on the  receipt of the pound shall release to his heir executor or administrator all  her right to his estate real or personal by virtue of the custom of London Mr  Hebbert have issue by his second wife one daughter marry to the plaintiff  blunden and after this advance his old daughter in marriage by the marriage  write pound in money be declare to be towards her portion and some freehold  together with some leasehold estate be settle upon Mr Hebbert for life  remainder to Mr Barker the husband his heir executor and administrator and  this marriage write among other be sign and seal by Mr Hebbert himself who be  indebt to his daughter Barker for money and rend receive by he during her  infancy and which have become due from estate give her by her aunt and other  relation mrs Barker before her marriage execute a release to her father of all  right claim and demand which she have or may have by the custom of the city of  London save to herself whatsoever her father shall voluntary give her some  time after march Mr Hebbert make his will whereby take notice that his second  daughter have marry against his consent he give a considerable estate to his  wife and about the value of pound in land and money to his say second daughter  and after several legacy bequeathe the surplus to his daughter Barker and die  the plaintiff blunden and his wife bring their bill for a account of the  personal estate of Mr Hebbert insist first that the freeman wife have give a  bind in pound penalty peer William to release her right by the custom to the  heir executor and administrator of her intend husband Hebbert this have  extinguish her right by the custom she be thereby compound with and to be take  as dead consequent that the child of the freeman be to have one half of the  personal estate and the remain half to be the testamentary part second that  mrs Barker ought to be bar from take any part by the custom and this as well  in respect of the release which she have give to her father of all right which  she may have to his personal estate by the custom as also for that it do not  appear what be the value and certainty of the portion which Mr Hebbert have  give her both in regard to the uncertainty of the lease and likewise to the  uncertainty of what be due from Mr Hebbert to mrs Barker and how much of what  be give on mrs barker marriage shall be apply towards payment of the debt due  to her from her father from all which it be infer that the plaintiff mrs  blunden be alone entitle to a moiety of the whole personal estate of the  testator videlicet all the orphanage part upon the hear of this cause before  the master of the roll his honour take it and so decree that the release give  by mrs Barker the old daughter of her right to her father personal estate by  the custom though it may be void in strictness as a release yet be make for a  valuable consideration be a good agreement that she the say mrs Barker will  not claim or intermeddle therewith and shall bind her in equity vide Vol two  cleaver v spurling also that the value of the leasehold premise be uncertain  and the quantum of the debt which Mr Hebbert owe to his daughter be likewise  uncertain and it not appear how much of the portion peer William er p of peer  William mrs Barker shall be apply towards payment of the debt due to her from  her father this be a double incertainty and therefore not within the custom  consequent that mrs Barker be bar from claim any of the orphanage part but  there remain some doubt with the court how the widow three of the personal  estate on her be compound with shall be dispose of by the custom of London the  party be order to attend the Lord mayor and alderman who be desire to certify  the custom of the city by their recorder to the court on this point videlicet  where the widow of a freeman be compound with or bar before marriage from  claim her customary cc part of her husband estate and such freeman die leave  one or more child or child be a moiety or only a three of such freeman  personal estate the orphanage preserve until the account of the personal  estate shall be report and the custom certify from this decree there be a  appeal to the Lord chancellor Parker mich term before who it be insist in  support of the decree that mrs Parker release of all demand right or claim  which she have or may have by the custom of the city of London be a discharge  and release of her orphanage part that by the same reason freeman wife before  marriage may release her customary part so also may a child release his  orphanage nay that the wife before her marriage have not so much as a  inchoation of right whereas the child of a freeman have a inchoate right not  perfect it be true until his father death in his lifetime that there can be no  danger from the possibility of the father gain by his authority without a  consideration or by any indirect method a release of the orphanage part from  his child since whenever that case peer William happen equity will interpose  and set aside such release that if it be void at law in regard no right to the  orphanage part be vest in the child at the time of the make it yet be for a  valuable consideration it will operate in equity as a agreement to quit and  waive his orphanage part afterward and that the release in the principal case  do import such a agreement by the daughter to waive her orphanage part as will  bind her in equity on the other side it be say to have be admit that at law  the child right to the orphanage part be not releaseable in the father  lifetime because the child neither have nor possible ever may have any right  thereto any law in re or ad remember that many thing may happen which will  prevent the child ever have this right for instance he may die in the father  lifetime the father may leave no personal estate or may before his death be  disfranchise and if the child have no right he can release none it be compare  in point of reason to the case in light sect father and son the father be  seize the son in the life of the father release to the seize all the right  which he have or may have this be hold void because at that time the son have  no right and as in that case the son may have die in the father lifetime so  may the daughter in the principal one and as there the father may have alien  the land so here may he have dispose of his personal estate by invest it in  land that in Vernon case   b it be say that at commonlaw if a woman before  marriage accept of a jointure in bar and satisfaction of her dower yet this  will not bar her peer William and one of the reason give in the book be  because at that time the woman have no right to dower can not release what she  have then no right to Lord chancellor this release be clear void at law and  for the reason give at the bar because at the time when it be make the person  release have no right nor possible ever may have any to the orphanage part  vide medcalfe v Ives I atk morris v Burroughs atk whereupon it be insist to be  unreasonable that if the release in the principal case be void at law it shall  yet import a agreement in equity which be make on a good consideration may be  carry into execution by this court for that by the same reason every agreement  that be void at law may from some circumstance attend it be pretend such a one  as equity will carry into execution that the covenant of the wife before  marriage to claim nothing of the customary part be warrant by the custom which  call it a composition for such part but that there can be no such custom show  to warrant the child release the orphanage part neither be it within the same  reason the child be not Himself law the awe he be presume to have of his  parent the duty he owe he the total dependence he have upon he for all the  convenience of life will not suffer he to be a free agent in this peer William  er p case will not permit he to deny give a release to his father though upon  the advance to he a portion much less than the customary share will come to  Lord chancellor I do not see the argument from the father power over the child  to be of any weight for if it shall ever appear that this power have be abuse  peer William a court of equity will certain set aside the release thus  indirect gain but then it be urge that if a portion be to be give by a freeman  with his daughter in marriage and this portion shall be mention in the  marriage settlement and accept by the daughter and her intend husband as in  full of her orphanage part even this however express will not et be construe  any bar to it nor do it seem ever to have be so take nevertheless it be so  determine in the case of medcalfe v tres and Johnson June atk for if it have  it must have be common practice and thereby have render the orphanage custom  easy to be elude and of little force though admit for argument sake that such  release will amount to a agreement in equity yet in the principal case the  release be with a express save and exception of what thereafter her father the  freeman shall voluntary give her so that it be part of the very agreement by  which she do release her customary share that still she shall have what her  father may think proper to give her and it be reasonable and equitable that  the daughter so far as to secure her father gift or bequest by his will shall  insist upon her right by the custom it be upon these term that she submit to  bar herself of the benefit thereof and if equity will enforce the agreement in  any part it will do so throughout Lord chancellor this save be a exception out  of the agreement and make it as part thereof that the child shall still be  capable of take what her father shall please to give her and as it be make by  the daughter with the father so it seem plain to have be in his power to relax  or release it it be absurd to say that when a agreement be peer William make  between two person these join can dispense with it the agreement be make only  for the liberty and ease of the father that the daughter against his will may  not claim any far part of his estate but suppose he incline to give her a far  part it will be invert the intention of the agreement and make those word  which be design to give he a more complete power over the estate to restrain  he from dispose of it in such manner as he shall judge proper wherefore by  virtue of this save the father may dispense with the daughter covenant it be  no more than a covenantees release his covenant and the father gift to his  daughter by will be a demonstration of his intention to dispense with it it  have be object that the daughter be hinder from claim any orphanage part  because the certainty of the portion do not appear under her father hand  fawkner v Watts atk but in reality it do appear under the father hand in the  settlement what her portion be it be pound in money and some lease and there  be no necessity that the value of these lease shall appear provide the thing  itself be sufficient evident this be the rule in such case and it be the fair  method imaginable to mention the thing itself that be the advancement of the  deed Id that which is fixed be quod that which is fixed To give back to be  able object at this rate the great incertainty may be render certain as the  most perplex and intricate account may in the work of many year be state and  settle whereas the city must have intend by their custom that thing shall be  so plain as to be see easy and at the first view peer William resp but why can  these lease be value as well as those of which the residue of the freeman  estate be suppose to consist and what can be fair than the offer make that the  other side shall have the lease themselves give up and bring into hotchpot by  the same reason that these lease be whole uncertain in their value so must  pound Southsea or eastindia stock be and then if I be a freeman give pound in  money with my daughter to advance her in marriage this will not bar her of her  orphanage part but if I give my daughter half so much videlicet pound and a  lease worth but pound more or a jewel this will be a good bar to her from  claim any orphanage part indeed it be unreasonable to say that the father  ought to put the value of the lease in the settlement or will for if such  value be to be conclusive it will then be in the father power to make the most  partial division of the orphanage part among his child imaginable by overvalue  what he give to one child and undervalue what he give to another vide Vol if  cleaver v spurling object it be no hardship upon the child that the father may  give what lie peer William er p please out of the orphanage part as little to  one child and as much as he think fit to another because if the father give  ever so little a advancement yet if he will withdraw his hand and not sign the  write by which the quantum of the child portion may appear the child shall  come in upon bring what he have receive into hotchpot resp it be not necessary  that the quantum of the portion shall appear under the father hand since  accord to the case of dean and Lord delaware vern if the certainty of the  portion with which the child have be advance appear in peer William the  freeman book of account though write by the freeman bookkeeper or his servant  it be as sufficient as if write by the freeman himself and such advancement  may be bring into hotchpot now if it be sufficient that the certainty of the  sum shall appear under the freeman bookkeeper or servant hand then as the  freeman must be suppose a tradesman it must also be presume that he keep book  of account of all considerable sum expend by he and therefore if the freeman  give any portion with his daughter that the sum and quantum thereof will  appear in some of his book of account object but the freeman may invest all  his personal estate in land and by that mean evade the custom resp this can be  well suppose of freeman who be presume to be trader and consequent to keep a  stock wherewith to manage their trade which stock be personal estate object in  the principal case there be not only incertainty in the value of the lease  which be settle but also in the quantum of the portion that shall be apply  towards satisfy the debt the freeman owe to his daughter peer William resp the  release make by the daughter to her father Hebbert extinguish that debt but if  not equity which always marshal the application of asset in such a method as  that all the creditor may be pay either out of the real or personal estate  will in the present case marshal the application in this manner videlicet that  the land settle by Mr Hebbert shall go in satisfaction of the money which he  owe to his daughter in the last place it be strong contend that the court  shall not send it to the lord mayor and alderman to certify whether when the  widow be compound with the husband testamentary part and the child orphanage  part shall go each in moieties in the same manner as if the wife be dead in  regard this be say to have be already certify by the city in the case of Clare  and Achmooty may where the child be all full advance in the father lifetime it  be hold that it shall be as if there be no child and so the wife to have one  moiety and the other be the testamentary part that agreeable hereto it have  also be decree in the case of Rawlinson v Rawlinson July S c cite atk  wherefore it will be set this matter at large again to send it a second time  to be certify by the court of alderman but the other side deny that this  custom have ever be peer William as yet so certify and insist that the reason  of the thing be entire against it for what can be more absurd than to suppose  a wife dead when she be live and yet at this rate if the husband shall have  compound with his wife and die intestate one and the same woman as to her  claim of the customary part must be take as dead with regard to her  distributary share look upon as live sure it be much more reasonable that he  who be the purchaser of the wife customary part shall himself have the entire  benefit thereof that a man shall reap the advantage of his own purchase and  thereby amplify the power which he before have over his own estate beside in  this case the bind of the wife before her intermarriage with her husband be to  release to his executor be a far argument that the executor be to have the  benefit of it and that it shall not be absorb and extinct and suppose the  covenant have be to assign her customary part in such manner as the husband  shall direct it will not in such case have be extinct but must have be assign  accord or if it have happen that the pound have not be pay to the freeman wife  will she not then have be at liberty to have take advantage of the custom at  least so far as to have make up her pound afterward videlicet November the  follow order be make upon read the release from the defendant Frances Barker  date the that of June the will of the say John Hebbert date the that of march  the article date the that of February and a bind of the same date peer William  his lordship declare he take this to be a absolute agreement that the peer  William er p defendant Hester shall perform the condition of the say bind  which be that after her husband death she shall release to his executor and  that the agreement be not that her three part shall be absorb for the benefit  of her child but shall go to his executor for the benefit of his will that his  lordship will look into precedent and see whether they come up to the present  case and also whether the custom of the city of London have be certify as to  the question whether when the widow of a freeman be compound with or bar  before marriage from claim her customary part of her husband estate and such  freeman die leave such widow live and also one or more child or child be a  moiety or three of such freeman personal estate to be the orphanage part and  in case the custom have already be certify in that point his lordship will not  send it to the city again to be certify and as touch the say orphanage part  his lordship declare that the testator have a power to release the agreement  make with the defendant Frances Barker before her marriage and that he have  release the same by his will by give her the remainder of his real and  personal estate that by the word of the release execute by the say defendant  Frances Barker she be not to be bar of what more her father will give her by  his will and the testator have thereby give her the remainder of his personal  estate his lordship be of opinion that one three of the personal estate in  case the defendant Hester Hebbert shall be bar thereof will not fall into be  absorb or extinguish in peer William the orphanage part but will fall into and  belong to the testamentary part and the plaintiff Hester will be entitle to no  more than a moiety of one three of her father personal estate the defendant  Frances Barker bring the leasehold house and the pound give her upon her  marriage into hotchpot his lordship further declare that her advancement be  certain be the say leasehold house and the say pound and that by the custom  not the value of the advancement be to appear with certainty but the thing  advance and that the freehold estate settle then upon her ought not to be  bring into hotchpot the custom of the city of London not have any power over  land of inheritance vide ante babington v greenwood and in case upon look into  precedent his lordship shall not find that the question whether when the widow  of a freeman be compound with or bar before marriage from claim a customary  part of her husband estate and such freeman die leave one or more child or  child the orphanage part of such freeman personal estate be a moiety or only a  three have be full certify then at the same time his lordship will if he shall  see cause send it to the lord mayor and court of alderman for they by their  recorder to certify the custom in that particular also that his lordship will  if he shall find cause likewise send it to that court to certify the custom of  the city of London as to the father power to compound or make a agreement with  the daughter before her marriage touch her customary share of his personal  estate and after his lordship shall have be attend with precedent or shall  have the custom of the city of London certify in the point aforesaid in case  there shall be occasion such far order shall be make as shall be just at  length the party come to a agreement so that these point be never certify Qure  if this be warrant by the certificate in that case which be as follow dean et  ux v a house delaware may in pursuance of a order of the that of December then  last it be certify that if a freeman of the city die leave a wife and one  daughter marry in his lifetime and it appear by the book of such freeman that  he have pay several sum of money in part of such daughter portion unto her  husband and afterward several other sum which ought to be take as pay on cc  account of the portion but not express enter in such freeman book as pay in  part of advancement or in part of the portion all which entry be of the  testator own hand write and such sum take altogether do not amount to a three  of such freeman estate put together with what he leave at his death such  daughter ought not to be take as full advance but in part advance only and in  such case by the custom of the city such child and her husband be to have a  three of what the testator leave at his death without regard of what be  receive in the father lifetime and without put what have be so receive to the  estate leave at his death note in the case of green v green which be hear at  the roll hill Mr Vernon observe that on this point precedent have be both way  though the peer William er p most solemn one be against the child have the  benefit of the composition make with the wife to which the court incline  without then determine it but afterward in the case of Pusey v sir Edward  Desbouverie hear July post Vol III Lord chancellor Talbot take notice of the  contrary determination make by the court in this point say it have of late be  settle that where the wife be compound withal it shall be take as if there be  no wife and consequent that the husband shall have one moiety and the child  the other the like be hold by the Lord Hardwicke in the case of medcalfe v  Ives and morris v Burroughs hear June and February I atk