case blunden against barker of the custom of London with respect to the estate  of freeman S c Eq Abr S c Peer wms the bill be bring by Mr blunden in right of  his wife who be the daughter of ibbot the testator and by the widow of the say  testator against mrs Barker who be the other daughter of ibbot and  administratrix with the will annex to have a discovery of the estate of the  decease Mr ibbot and to have the will set aside as far as it be prejudicial to  the right of his wife as a daughter of a citizen of London or to the right of  the widow as the wife of a citizen upon the plead the case come out thus ibbot  the testator have by his first wife issue whether Barker the defendant and by  the second his present widow one of the plaintiff Esther blunden marry to the  plaintiff against the consent of the father upon the marriage of Mr ibbot the  testator with his second wife now widow there be article of agreement  precedent to the marriage enter into by Mr ibbot and the present widow the  substance of which article be that Mr ibbot shall leave her at his death a  estate in land for her life of eightyfive pound a year four hundred pound in  money and all her jewel and that she shall enter into a bind of three thousand  pound penalty in trust for Mr ibbot the condition of which bind be that if  these term be make good to her she will within two month after the death of Mr  ibbot release to his executor all right and title that she may have to any  part of his estate real or personal by dower custom of London or otherwise the  bind be enter into accord and in the year the match take effect modern report  in the year Mr ibbot marry his old daughter mrs baker and give her for her  portion as appear by the marriage settlement four thousand pound in money  beside land and tenement among which there be the reversionary interest of a  lease to a considerable value to this settlement among other Mr ibbot the  father be a party and the certainty of mrs barker advancement appear no  otherwise than by the father be a party to this settlement wherein no value be  put either upon the freehold estate or the reversionary interest of a lease  settle upon her but precedent to the marriage the father think fit that mrs  Barker his daughter shall before her marriage execute to he a release to which  the lawyer that draw the settlement and Mr Barker the intend husband shall be  party wherein his daughter shall in consideration of her present advancement  release to her father his executor and administrator all interest right and  title c that she have or shall have to any part of his estate real or personal  by custom of the city statute of distribution or otherwise save what her  father shall please to give her by his last will and this release be accord  execute mrs Barker before this have some small matter in land and money leave  her by other relation the modern report er p interest and profit of which be  receive by the father but no account be ever make up between they some time  after this Mr blunden the plaintiff marry the other daughter of the testator  ibbot without his consent afterward Mr ibbot make his will which as far as be  material to this dispute be to this purpose he give to his wife during her  life the interest of so much bank and eastindia stock as amount to twelve  hundred pound ayear he give his two grandchild by modern report mrs Barker  five thousand pound apiece then he give a leasehold estate in trust for Mr  blunden during the life of his wife and after her decease in trust for the  child of mrs blunden and in default of such in trust for his own right heir he  give all his real estate to mrs Barker and likewise make her residuary legatee  of all his personal estate ibbot die leave a very considerable estate both  real and personal the point in this cause be three first whether mrs ibbot the  widow be bar by the article of agreement and the bind from claim her customary  share second if she be bar what be to be do with her customary share videlicet  whether the husband be to be consider as die without a wife and so the estate  be to be divide into two moieties the one moiety to go among the child the  other moiety to be the testamentary part of the testator or whether this  agreement by which the wife be bar be find upon the consideration of a  settlement upon her of a real estate Mr ibbot shall not be consider as a  purchaser of his wife three and so have a right to dispose of twothirds of his  estate by will three whether mrs Barker in this case be bar from claim her  customary share either upon account first of the release execute to her father  or second for want of a sufficient certainty of her advancement appear under  the hand of the father in case the widow be bar and the husband be to be  consider as a purchaser and mrs Barker be bar Mr blunden in right of his wife  will be entitle to onethird of the personal estate of the testator in case the  widow be bar mrs Barker bar and the husband be to be consider not as a  purchaser but as die without a wife then Mr blunden in right of his wife have  a clear title to a moiety modern report but in case the wife be bar and the  husband be to be consider as a purchaser and mrs Barker not bar then will Mr  blunden in right of his lady be entitle only to a moiety of the three part of  the personal estate of the testator this cause come to a hear before sir  Joseph Jekyll master of the roll he be please to decree first that the wife be  bar but what the consequence of that be whether the husband be to be consider  as die without a wife or whether in regard the wife be compound off by the  settlement of a real estate the husband be to be consider as a purchaser of  his wife three he send to the city to be certify what their custom be second  he decree mrs Barker bar both by the release as a subsist agreement in equity  and also because there be not such a certainty appear under the hand of the  father as the custom of the city require to let her ill to claim her share a  but not by Geo c S it shall be lawful for all person who after the first of  June shall become free of the city and for all who at that day shall be  unmarried and not have issue by any former marriage to dispose of their  personal estate a and consequent he be of opinion that Mr blunden have ill all  event in right of his wife a title to onethird but in case by the custom of  the city Mr ibbot be to be esteem as die without a wife then to one entire  moiety of the personal estate of the testator mrs Barker not acquiesce under  the determination of the master of the roll the cause be again bring on before  Parker Lord chancellor in support of the decree of the master and in favour of  Mr blunden it be insist upon that the wife may by a agreement before marriage  bar herself of her modern report er p customary share and that when this be do  the husband be always consider as die without a wife and no difference make  when the estate by which the wife be thus compound off be real and when  personal in the case of Hancock v Hancock b vern b the wife be bar by a  jointure of land and yet hold express that the modern report estate shall be  divide into moieties in the case of Rawlinson v Rawlinson a Prec Chan a the  wife be compound off out of a real estate and yet hold that the husband shall  have a moiety for his testamentary share in the case of Clare v Auchmuty b  vern b the child be all advance in full and it be hold that in that case the  father be to be consider as die without child and the estate be to be divide  into moieties the one moiety to go to the wife the other to be the  testamentary share of the father and not at all consider what the nature of  the estate be whether real or personal out of which the child be advance it be  urge that as to the bind give by the wife though in law it can bind no further  than the penalty yet in equity the bind and article make but one agreement and  therefore not in the liberty of the wife by incur the penalty of the bind to  free herself from the agreement as to the release give by mrs Barker it be  acknowledge that at law as a release it will be void but it be urge that it  will subsist as a good agreement in a court of equity it be urge that if a  jointure make precedent to marriage can bar a woman of her dower and that if a  woman can by a agreement precedent to marriage bar herself of her customary  share in neither of which case the woman have so much as a inchoate right at  the time of the bar a strong may a daughter release that right which as a  right be already by her birth vest in her though not to take effect in  possession until the death of the father as to the objection that if the  father be allow to take release from his child it will leave room for the  father to impose upon his child by that authority that a father have natural  over his child it be answer that this be not the case here the modern report  advancement be a very handsome and a very considerable one and the intend  husband and the lawyer that draw the settlement be witness to the release  beside if father can take release from their child some way or other it will  be a discouragement to father from advance child in their lifetime and in the  last place the father have it in his power as the custom now stand to cut off  his child from their customary share for it be but to give they some  inconsiderable advancement and take care not to let it appear under his hand  what the advancement be and the thing be do it have be settle in the case of  Fowk v Edwin that a advancement in marriage will cut a child off provide the  certainty of that advancement do not appear under the hand of the father upon  all these account it be infer that the objection take against these release  from the power it will give parent to impose upon their child have very little  in it as to the certainty it be urge that the decree of the master be right  first because the father be indebt to the daughter for interest of money and  profit of land by he receive at the time of this release and this account have  be never adjust it be now utter impossible to do it and consequent impossible  to know the certainty of that advancement which be the remainder after the  debt deduct another reason of the uncertainty of the advancement be because no  value be put upon the reversionary interest of the lease nor of the freehold  land in the settlement it have be very easy for the father to have put a value  upon these thing but it seem to have be omit on purpose to corroborate the  release that upon supposition the release shall not prove effectual for the  cut her off the uncertainty of the advancement in this settlement may modern  report if it shall be say that id cerium be quod that which is fixed To give  back to be able and that this advancement how uncertain soever it be upon the  settlement be yet capable of be reduce to a certainty modern report er p it  may be answer that it be true it may so videlicet by the Chargeable and  dilatory way of either a trial at law before a jury or by a account before a  master but this be not such a certainty as the custom require which on purpose  to avoid these inconvenience have fix and prescribe the way by which this  certainty be to appear videlicet the hand of the father if this be riot so the  custom as to the certainty will signify just nothing for there be nothing but  may some such way be reduce to a legal certainty if it be object that the  custom riot extend to land the uncertainty of the freehold estate be not  material the answer be that though the custom do not extend to land yet the  real estate as well as the personal make part of the consideration upon which  this release be give it seem not reasonable that she shall be release from the  agreement and yet retain so material a part of the consideration of this  agreement this fall in with the equity of the case of jointure where it be  hold that though a jointure after marriage in consideration the woman shall  quit her dower will not bind her from claim her dower yet equity will  interpose bold her to her election and not let her have both in the case of  Atkins v Waterson a citizen of London jointure his wife before marriage with  land to which the custom do not extend Lord chancellor send to the city to  certify whether this jointure do not bar her of her customary right it be  certify that it do not because not make in bar of her customary part but that  have it be make in bar it will have bind her Parker Lord chancellor it seem to  I that admit the custom of the city in general to be that modern report the  husband do not become a purchaser of his wife three when before marriage she  agree to accept of a settlement out of land in bar of her customary share any  more than he will in case the settlement have be of personal estate yet  notwithstanding as this particular case be circumstance the husband must be  consider as a purchaser and consequent will have twothirds of his estate for  his testamentary share suppose without any precedent agreement the wife have  after the death of the husband release to the executor of her husband all her  right to her three by the custom must not the executor of the husband have  have the benefit of the release No doubt they must if so what difference in  reason be there when the same thing be do in pursuance of a precedent  agreement and when without the notion that in this case the husband be to be  consider as die without a wife do necessary suppose the wife three so total  destroy as to have no more subsistence either in law or the consideration of  the party than if the testator have never marry but here it be very plain that  the wife right to her customary share do still subsist both in law and in the  consideration and intention of the party as a collateral security to the wife  for the husband perform his part of the agreement because have he fail she may  have claim her three as to the release execute by mrs Barker when the meaning  of the party the person apply to this court to make the release bind and the  will come to be consider I think it clear Mr blunden be not entitle to reap  any advantage from it mrs Barker in consideration of her marriage advancement  release to her father all right c that she shall have to any part of his  estate either by statute of distribution custom of London or otherwise save  what he shall be please to give her by his last will now what modern report be  to be understand by this clause save c it can be save what he shall give her  out of his own testamentary share for their it signify just nothing for the  release do not extend to that nor can the party think it do it must then have  relation to some part of the estate which it be think by the party the release  do cut her off from and then the meaning must be this and a very natural  meaning it be that in consideration of so handsome a settlement as I now make  you you shall promise I to be content with such part of your customary share  as I shall think fit to give you by my will and consequent it be the meaning  of the agreement that the father shall be consider as a purchaser of his  daughter barker customary share and then the meaning of the agreement which in  a court of equity be chief to be consider will be equal prejudicial to Mr  Blundens right as if it be leave to its fate at law where doubtless it will be  void as to the person that now apply to make this release good it be modern  report er p to be consider that it be not the father to who this release be  execute that come into this court to have the benefit of it but it be a  daughter marry against the consent of her father that come into this court to  support a release void at law as a agreement in equity in order in a great  measure to break in upon the will of her father to who the release be execute  it seem to I a very harsh doctrine and what it may be be never do for a three  person to come into a court of equity to enforce a agreement void in law in  direct opposition to the meaning of the party to the agreement the father have  during his life a absolute power over this release and may if he have please  have discharge his daughter from be bind by it modern report the question be  whether he have not do that which be equivalent to it it seem to I that a will  whereby he have give her all her customary share be virtual and in equity a  plain declaration that it be never his intention she shall be cut off from  this share by virtue of her release if therefore for these reason the release  will not stand in her way the next thing to be consider be whether the  certainty of her advancement do appear under the hand of the father in such a  manner as the custom require for if it do not then this advancement will cut  her off from come in and here the question be no more than this whether the  certainty of her advancement do sufficient appear in the marriage settlement  for the father be a party to it whatever appear there do appear under the hand  of the father as for the uncertainty of the freehold estate that be nothing to  the purpose for the custom extend only to personal the personal estate in this  settlement be four thousand pound in money express declare in part of her  fortune and the reversionary interest of a lease without any value put upon it  the first objection against this be a sufficient certainty be the uncertainty  of the value of this reversionary interest of the lease in answer to this it  be to be observe that the custom of the city be not that the certainty of the  value of the advancement or the certainty of the sum but the certainty of the  advancement must appear under the hand of the father a Fawkenor v Watts atk a  it seem to I that there can be a great certainty and less possibility of fraud  or collusion than when the thing itself give to the child appear under the  hand of the father b see dean v Lord delawar vern and the certificate make in  this case Peer wms notorious facts b if a father shall say that modern report  he have give a child such a diamond necklace describe it be not this better  than if he shall put a value upon it it may be more it may be less than the  true worth beside have this reversionary interest of this lease remain part of  the testator estate tempore death it must have be value and may therefore as  well now the second objection against the certainty be that mrs Barker have  both money and land leave her by another ancestor and that her father receive  in her right the interest of the one and the profit of the other and be at the  time of the marriage a debtor to his daughter upon this account and that  therefore it be impossible to know the certainty of that advancement which be  the remainder after this debt deduct the reason why the custom of the city  require the certainty of the advancement to appear under the hand of the  father be certain in favour of the unadvanced child that the whole of the  advancement may be throw into hotchpot if therefore it do plain appear that a  child have not be advance more than such a sum for instance four thousand  pound nay that the child have not be advance quite so much but it be only  uncertain how much short of that sum the advancement be by reason of a trifle  debt to be deduct that can be reduce to a certainty without doubt such a  uncertainty may be cure by the advance child quit entire this debt and bring  in the whole four thousand pound for the unadvanced child can be prejudice by  bring more than the advancement be not to admit this for a answer be to reduce  the custom of the city to this absurdity that when a man have a right to so  much and more he shall lose that to which he have a certain right because be  can tell how much more he be entitle to modern report if modern report er p  therefore mrs Barker quit her debt a see green v green Peer wms medcalfe v  Ives atk morris v Burroughs atk a this objection be at a end but it be capable  of another answer if this be insufficient mrs barker marriage portion consist  both of real and personal estate if now the freehold estate to which the  custom do not extend be esteem to go in satisfaction of the debt then the  uncertainty of the debt will not create any uncertainty in the advancement as  far as the custom of the city be concern in it and this seem agreeable to the  justice of the court in other case as where a man indebt by specialty and  simple contract die leave both a personal and real estate this court will not  suffer the debt by specialty to be fling upon the personal estate and that be  exhaust leave the debt by simple contract unsatisfy the land not be liable to  pay they but will decree the debt by specialty to be satisfy out of the land  and the debt by simple contract out of the personal estate if in this case the  real estate have not be settle upon mrs Barker upon her marriage but leave her  by will Mr blunden will have think it very hard that this debt shall have be  discharge out of the personal estate and so lessen his wife share when her  sister have so considerable a estate in land leave her out of which this debt  may have be deduct as to the demand of the widow mrs ibbot that she shall not  be bind further than the penalty of her bind there be very little in it for I  esteem the bind and article of agreement before marriage to make but one  entire agreement and the penalty of three thousand pound as circumstance then  stand be think more than a sufficient penalty for the enforcement of it and  though this happen to prove otherwise by a unexpected increase of the testator  estate yet certain a court of equity will hold her to her agreement modern  report upon the whole it seem clear to I that Mr blunden be in right of his  wife entitle only to one half of a three of the personal estate of the  testator a see the order Peer wms a easter term the eight of George the first  in the court of chancery Thomas Lord Parker Lord chancellor sir Joseph Jekyll  Knt master of the roll