case Fouke versus lewen novembris in court Lord chancellor Eq can ab pl a man  marry a orphan who die under twentyone her orphanage part shall not survive to  the other child but shall go to the husband the bill be to have a account of a  citizen personal estate and to be let into the orphanage part the plaintiff  have marry a citizen daughter and the chief point of the case be whether the  other child of lewen the citizen be so advance by he in his lifetime as to  exclude they of their orphanage part Vernon chancery case per curian any  provision make by the father in his lifetime for his child be a advancement  within the custom unless it be declare by write that they be not sufficient  advance and for some time it be hold that in such write there must be mention  make what sum they receive from their father because of bring it into hotchpot  but it be insist that the plaintiff wife be dead and she die before the age of  twentyone her husband not have receive her share of the orphanage part her  share by the custom do survive and pray that the recorder may certify the  custom in this particular and to prove the custom they cite pheasant case vent  Chan can the custom be if orphan son die before twentyone and daughter die  before twentyone and unmarried the share in both case survive Jesson v  Essington pre Ch so even after division and partition make Leoffes v levuin  pre Ch Eq can ab pl but the survivorship do not extend to any part the orphan  take himself by survivorship anon pre Ch and by the custom the orphan be  incapable of devise his part by will before twentyone or in case of a daughter  before twentyone or marriage anon pre Ch wilcocks v wilcocks post vol knipe v  wale mich vin ab pl Hervey v Desbouverie Forr nor the part he take by  survivorship any more than the original share ibidem but he may devise his  share under the statute of distribution wilcocks v wilcocks Jesson v Essington  ub sup and if he die intestate after twentyone it shall go accord to the  statute of distribution anon pre Ch et vide stat Geo cap sec Bacon ab title  cust land c but the court reject this matter for although if a orphan die  before twentyone year of age unmarried there may be such custom yet that  custom can take place where the orphan be marry and the interest of her share  vest in her husband and if there be any such custom it will be unreasonable  and void and pheasant case be nothing to the purpose for the husband die and  his wife orphanage share remain in the chamber of London the question be  whether it be debt is owed or depositum and whether the widow shall have it or  the executor of the husband then they insist on a clause in lewen will  recommend his child who the plaintiff will have to be full advance to the care  of his wife to provide further for they and that that amount to a sufficient  declaration that he think they not full advance but it be answer that such a  implicit declaration will not serve turn and beside that clause have another  meaning and do work upon the legatory part only Vernon chancery case Q whether  any provision make by the father for his child be a advancement or whether  only such a provision as be make on the marriage of the child it seem to be  only such a provision as be make on marriage or in pursuance of a marriage  agreement the point of the wife die do not appear in the register book Vernon  chancery case er p in this case it appear that Edmund lewen the citizen and  father in law of the plaintiff be in his lifetime possess of a very large  personal estate to the value of pound and that his daughter the wife of the  plaintiff who upon her death sue by bill of revivor have marry the plaintiff  without the consent of her father and that after her marriage her father have  give to her some sheet table linen and fear apparel and also have allow her  for about six month before his death S a week and by his will have give her a  annuity or rend charge of pound per annum for her life and on these gift and  legacy the question arise whether they be a sufficient advancement to bar her  and of course the plaintiff from her part of the orphanage share of the say  citizen personal estate and it be decree they be not such a advancement and a  account of the say personal estate be also decree Reg lib a fol at b No  mention appear of bring the amount of the money and other thing receive by the  plaintiff wife into hotchpot a legacy give by a freeman to his child shall not  go in satisfaction of the customary part unless it appear to be the intention  of testator that it shall do so Iretons case Freem nor shall freeman child be  bar by implication Bravell v pocock ibidem but where legacy be declare to be  in satisfaction the child must waive it if he will claim under the custom anon  hill vin pl Hervey v Desbouverie Forr morris v Burroughs atk pugh v smith atk  car v car ibidem by if the father dispose of his testamentary part only ibidem  and case there cite but he be not oblige to elect till after account take  Hender v rise cite in Cowper v Scott p wms the advancement to exclude a child  must be in consideration of marriage and no case where a sum of money give by  a freeman to his daughter on any other consideration be a bar of the orphanage  share per master of the roll in Hume v Edward atk the decree in this case as  state in the register book direct the plaintiff to elect whether they will  take under the custom or will and if the former they be not to be entitle to  the legacy give by the will and the master be order to take a account of what  sum of money good or effect the plaintiff have receive from the testator and  see which of they be pay or give to the plaintiff by way of recompense and  satisfaction for the expense and trouble they be put to by reason of the  testator and his family visit they or for journey take by the plaintiff or  either of they for the testator and such of the money as the master shall find  be not so pay or give to the say plaintiff by the testator by way of  recompense and satisfaction as aforesaid be to be bring by the say plaintiff  into hotchpot the defendant Edward and his wife to bring in the pound advance  and pound secure by the bind but not for the four east India bind the master  to inquire whether Edward lie out more money in the purchase and whether he  have be repay or else he be to come as a creditor on the testator estate Reg  lib a fol and note the recorder certificate in chase v box Eq can ab pl be  cite by the master of the roll as to that effect but the certificate as there  state do not appear to go to that point and it must be by way of portion in  marriage or to set up in the world per Lord can in Elliot v collier atk et  vide Jenks v Holford ante it be state indeed to be a general rule that all sum  of money give by a freeman of London to his child must be bring into hotchpot  the decree in this case as state in the register book direct the plaintiff to  elect whether they will take under the custom or will and if the former they  be not to be entitle to the legacy give by the will and the master be order to  take a account of what sum of money good or effect the plaintiff have receive  from the testator and see which of they be pay or give to the plaintiff by way  of recompense and satisfaction for the expense and trouble they be put to by  reason of the testator and his family visit they or for journey take by the  plaintiff or either of they for the testator and such of the money as the  master shall find be not so pay or give to the say plaintiff by the testator  by way of recompense and satisfaction as aforesaid be to be bring by the say  plaintiff into hotchpot the defendant Edward and his wife to bring in the  pound advance and pound secure by the bind but not for the four east India  bind the master to inquire whether Edward lie out more money in the purchase  and whether he have be repay or else he be to come as a creditor on the  testator estate Reg lib a fol hedge v hedge pre Ch Jenks v Holford Hume v  Edward ub sup but this rule be subject to exception as where a only child in  part advance he shall not bring his portion into hotchpot the queen v Roger  salk fane v hence post vol wood v Fettiplace James cite in dean v Lord  Delaware post vol Stanton v Platt post vol maggot v smith Tr vin title cust  lon b can et vide Stanley v norcliffe Tr vin ab pl and there seem also to be a  clear distinction between money express to be advance in part of fortune  though of small amount and petty sum of money not give as a portion but by way  of present those in the former case to be take as a advancement and bring into  hotchpot and in the latter case not morris v Burroughs atk Elliot v collier  atk so money lie out and allow for education or in travel or in put out child  apprentice no advancement Hender v rise cite in Pusey that Desbouverie p wms  so in maintenance of child Edward v freeman Eq can ab pl p wms cite in Elliot  v collier atk and quaere whether maintenance and support of a daughter after  marriage will be the decree in this case as state in the register book direct  the plaintiff to elect whether they will take under the custom or will and if  the former they be not to be entitle to the legacy give by the will and the  master be order to take a account of what sum of money good or effect the  plaintiff have receive from the testator and see which of they be pay or give  to the plaintiff by way of recompense and satisfaction for the expense and  trouble they be put to by reason of the testator and his family visit they or  for journey take by the plaintiff or either of they for the testator and such  of the money as the master shall find be not so pay or give to the say  plaintiff by the testator by way of recompense and satisfaction as aforesaid  be to be bring by the say plaintiff into hotchpot the defendant Edward and his  wife to bring in the pound advance and pound secure by the bind but not for  the four east India bind the master to inquire whether Edward lie out more  money in the purchase and whether he have be repay or else he be to come as a  creditor on the testator estate Reg lib a fol consider as a advancement Elliot  v collier ub sup and note in a ms note to Edward v freeman with which the  editor have be favour it appear that the decree in that case be appeal from to  the lord but that before the appeal be hear a will be find which direct the  same thing as have be decree but money lie out for procure establishment in  life shall be bring into hotchpot Elliot v collier ub sup as in purchase a  office or a commission in the army Norton v Norton cite in note in Pusey v  Desbouverie ub sup and that where it do not appear to have be pay as a portion  hearne v barber atk say vide the next note which also see as to the law call  Juds law and note that as to child advance in their father lifetime bring such  their advancement into hotchpot that be to be only in the case of a total  intestacy or where the whole personal estate become distributable per curian  Cowper v Scott p wms but in the case of real estate be settle by the father on  a heir or coheir this will be no bar to the orphanage part even though the  father shall declare it to be a full advancement Cevill v rich post and and Ch  can under the name of rich v Richard so money give to be lie out in land no  advancement annand v honeywood post Ch can SC babington v greenwood p wms Hume  v Edward atk and no difference whether land be give as a advancement or come  by devise or descent Stanton v Platt post vol so as to the general doctrine of  land on this head Cox v Belitha p wms by as to leasehold estate ibidem and it  appear that land of inheritance if give by freeman and accept in bar of  orphanage part will bar in equity at least the child can have both ibidem  Vernon chancery case er p a the freeman son be by the freeman will mention to  have have pound in full of his orphanage part by the custom and he afterward  receive further sum of money amount to pound from his father the freeman and  the certainty thereof appear by his own answer yet these sum with the pound be  bring into hotchpot will not bar his orphanage part Northey v strange p win  but where the father be dead intestate have give several sum of money to his  son who have not be marry as a advancement upon the hardship of the case as it  will in effect be exclude he from receive any thing from his father Hardwicke  Lord Chan hold that he may come in without bring the money so receive by he as  a advancement into hotchpot hearne v barber atk the case of hearne and barber  be enter Reg lib a fol from the statement there it appear there be five child  Sophia hearne James barber John barber Peter barber and Adam barber James  waive any claim John be marry and advance pound admit to be advance by  agreement with the mother of his wife after his marriage and the certainty of  the say John barber advancement not appear under the father hand declare John  to be take to be full advance by his father in his lifetime and therefore  order the orphanage part to be divide into three equal part between plaintiff  Sophia the plaintiff Adam and defendant Peter they to bring into hotchpot as  between themselves all such sum as any of they receive of their father in his  lifetime by way of advancement to the end that their respective share of the  orphanage part may be make up equal account direct N B in this case mrs hearne  share both of orphanage and legatory part be on her consent in court order to  be pay to or retain by plaintiff her husband and where portion bring into  hotchpot it be to be bring into the orphanage part only and not into the  general personal estate of freeman Beckford v Beckford post Cleavier v  spurling p wms but where freeman give a bind to his mother to be pay after his  death it shall be pay out of his whole estate and not out of the customary  part only stride v Gibbs pre Ch yet where loss happen by insolvency of  executor it shall be bear out of the testamentary part and not out of the  whole personal estate read v duck pre Ch Chan can vent by the custom of London  it be not the value of the advancement that be necessary to appear with  certainty but the thing advance vide order state in blunden v Barker p wms and  the father declare the child to be full advance or not be of no avail unless  it appear what the advancement be such dict arg dean v Lord Delaware post vol  and proof read in cleaver v spurling p wms et vide certificate of the custom  state in chase v box Eq can ab pl Northey v Burbage pre Ch Qure whether the  quantum of portion or advancement need appear under the father own hand if it  be otherwise sufficient authenticate as by his book of account keep by his  servant c vide blunden v Barker p wms and note there by Mr Cox Vernon chancery  case er p