case brown et ux v elton on a appeal from a decree at the roll Lord chancellor  king Eq can ab pl husband and wife sue for a legacy give to the wife the court  will not compel the payment of it unless the husband make some settlement on  the wife sir John brown marry a young gentlewoman who have a legacy of pound  leave her Payable at her marriage sir John brown demand the legacy but the  executor refuse to pay it unless some settlement or provision be make for the  lady but on those term offer to pay the legacy sir John refuse to make any  settlement nor as yet have he make any and with his wife bring this bill for  the recovery of the legacy the cause be first hear at the roll it be there  order that the plaintiff sir John shall make his proposal before the master  and shall also pay the cost of the suit in regard it appear that the defendant  the executor as well before the bill be bring as also by his answer offer peer  William to pay the legacy on sir John consent to make the settlement on his  lady and now on sir John appeal from this decree to the Lord chancellor it be  insist by the attorneygeneral and Mr will that this be a legacy give out of a  personal estate only the plaintiff and his wife may have sue for the same in  the spiritual court and recover it without be tie down to any term of make a  settlement and measure of justice ought as much as possible to be uniform and  consistent in all court that as this be a mere personalty which the husband  may release the impose term upon he be take from he the benefit of the law see  the next case precede beside pound be a small sum to require a settlement f or  and there have be instance where equity have refuse to compel the lie out very  small portion Adam v pierce ante that since the executor have admit asset he  be rather to be look on as a debtor for this pound than as a trustee and  suppose it to be the case of a common debt it must seem a pretty strange  defence make by a debtor when sue by his creditor to say I will not pay your  debt because you have not make a jointure or settlement on your wife in answer  to which it be urge for the defendant that those who will have equity ought to  do equity that where the husband can recover the wife portion at law equity  will not interpose so as to compel a settlement or provision for the wife but  where the husband come here to be assist in recover his wife portion this  court may give peer William their assistance on what term they shall think  reasonable and nothing can be more reasonable than that care shall be take to  make a proper provision for the wife and the issue of the marriage that  agreeable to this have be the constant practice as in vern lady Oxendens case  where it be say by the Lord keeper wright that a court of equity will oblige a  husband who come there for his wife portion to make a settlement upon her by  way of jointure or to secure a maintenance to her in case she survive so in  vern Lupton et ux v tempest et all a diversity be take by the Lord Cowper  between a husband and wife come into equity to demand a execution of the trust  of a real estate in which case the court will make no term with the husband  forasmuch as when the wife have recover the estate she may keep it and where a  husband sue there f or a personal demand in right of his wife because as peer  William er p this latter when recover will belong to the husband therefore  this court may insist upon term as be in diminution of his right also the case  of jacobson v William vol be cite where the husband be a bankrupt and entitle  to a legacy give to his wife dumb sola and the assignee under the commission  sue f or this legacy whereupon the Lord Cowper and after he the Lord  Macclesfield deny relief until some provision be make thereout for the wife  for that the assignee under the Commission can be in no better condition than  the husband the bankrupt himself and he will not have be entitle thereto  without provide for his wife so in the case of dod v hall on the last day of  petition before the present Lord chancellor the husband be not allow to have  his wife portion without first make his proposal before a master in order to a  settlement or provision for her peer William neither be it material what the  spiritual court will have do have the husband and wife apply there for the  legacy since as this be the constant practice of this court and a reasonable  one too there can be no colour to make a different rule here from what have be  observe in like case and though the sum be but pound still it be something and  may serve to supply the wife with the bare necessary of life that the  defendant the executor can not be consider as a mere stranger for he be relate  to the wife and consequent under a double obligation both as her relation and  trustee every executor be a trustee for the performance of the will to see her  provide f or in the most beneficial manner Lord chancellor I find it to be the  practice at my come into this court to enforce the husband before he recover  by the aid of equity his wife portion to make a settlement and as such  practice have so long obtain shall not at this time take upon I to alter it  although it seem to break in upon the legal title which the husband have to  the wife personal estate see milner v Colmer vol and this method however  intend original as a cautionary provision in favour of the wife have sometime  prove inconvenient but yet custom and long usage have sufficient establish it  nevertheless will reverse that part of the decree below which order the  plaintiff sir John brown to pay cost to the defendant for I in not condemn a  man to pay cost for insist upon a peer William right which the law give he so  let there be no cost on either side but as the plaintiff sir John brown now  offer to make a settlement upon his wife that settlement must be make at his  own charge vide Harrison v buckle stram milner v Colmer ante vol Adam v pierce  ante Jewson v Moulson atk attorneygeneral v whorwood ves jacobson v William  ante l Vol where the wife have only a life interest the court will not compel  a settlement by the husband unless in case of his insolvency or desertion of  his wife or other extreme misconduct nor will they except for the above reason  deprive he of the interest of his wife fortune although he refuse to make a  settlement bind v simmons atk sleech v Thorington ves sen like v Beresford Ves  Macaulay v Philips Ves wright v Morlay Ves Atherton v Nowell Cox Elliott v  Cordel mad say why the equity of this part of the decree whereby the executor  be to pay cost out of his own pocket that be the consequence of order no cost  on either side for a conduct which the court itself have ever approve of  tailor v Glanville mad