case oldham versus Hugh November the wife of the defendant not capable of  change the nature of her estate by article because under coverture and unable  to contract a bill be bring in order to have twenty thousand pound in money or  twenty thousand pound Southsea annuity invest in land pursuant to article of  agreement for that purpose the master of the roll decree the annuity to be  sell and lie out in land and the present case come upon a appeal from that  decree in September m Deacle upon his marriage with mrs Deacle covenant with  trustee that he his heir executor or administrator shall lie out twenty  thousand pound in the purchase of land and settle it to the follow use  videlicet to himself for life then to the intent that his wife shall receive  eight hundred pound a year for her life as her jointure in lieu of dower then  to his first and other son in tail with remainder to his own right heir Mr  Deacle die in without have lie out the money in a purchase or leave any issue  by his wife his heir at law be mrs bourn his sister who be marry to Mr bourn  the defendant and Mr Oldham the plaintiff who be his nephew that another  sister air Deacle be a freeman of London and as he die without a child Eis  widow by the custom become entitle to a moiety of his personal estate and as  to the other moiety which be the dead man share and distributable the widow  become entitle to one moiety of that and Mr bourn and his wife and Mr Oldham  to the other moiety as next of kin however upon Mr Deacles death there be a  dispute between the widow and next of kin as to the right of administration  and upon a agreement it be grant to Mr bourn and his wife and Mr Oldham and  article of agreement upon that occasion in atkins er p be enter into between  the next of kin and the widow who be the only person entitle to the personal  estate of Mr Deacle wherein it be covenant and agree that twenty thousand  pound Southsea annuity shall be transfer to trustee who shall sell they and  lie out the money in land and settle it to the same use as be in the former  article with this contingent proviso however that if the widow die before the  money be lie out in land that it shall go to Mr bourn and his wife and Mr  Oldham their executor and administrator equal accord to their respective  interest and by these article Mr bourn and Mr Oldham covenant for themselves  their heir executor and administrator that if the Southsect annuity shall fall  short to answer mrs Deacles annuity of eight hundred pound a year that they  will make it good the annuity be assign to trustee and one atkins of they lie  out pound annihilation money upon they to make they up twenty thousand pound  Southsea annuity mrs bourn die whereby mrs Oldham become entitle as heir to  all her real estate but Mr bourn Mr bourn die some time after his wife and by  his will give away all his personal estate her husband contend that these  subsequent article have turn the money which be realize by the former article  into personal estate again whereupon he become entitle to his wife share as  her administrator Lord chancellor as to one moiety of these Southsea annuity  Mr Oldham the plaintiff be entitle to it as coheir to Mr Deacle subject only  to mrs Deacles annuity but upon the other moiety which belong to mrs bourn as  the other coheir arise the present point which be whether it be to be consider  as real or personal estate if real it belong to Mr Oldham as her nephew and  heir at law if personal to Mr bourn as her husband if this question be to be  consider upon the article in before Mr Deacles marriage there can be no  dispute but that it be to be take as land note Lingen v Sowray p W Scudamour v  Scudamour Prec Charles Trelawney v booth ante see Guidot v Guidot post vol and  the case there refer to but a question now will arise upon the foot of the  agreement enter into in and upon these article it be insist that the nature of  this estate be change and whether I take it as twenty thousand pound in money  or so much Southsea annuity article to be lie out in land it be by they  convert into personal estate by the agreement of the party and there be no  doubt but if two person be entitle to money which be article to be lie out in  land and consider as such they may agree before the investiture of it to take  it as personal estate vide cross v Addenbroke and Fulham v Jones cite in note  p W Edward v Warwick Cox p W note and it shall go as such to their  representative provide none of the party be under any incapacity but I be of  opinion that neither mrs bourn be capable of change the nature of this estate  because of her be under coverture and unable to contract nor suppose her able  to contract do the article import any such change as to mrs bourns capacity if  this money be to be consider as real estate she be a feme covert and can alter  the nature of it bare by a contract or deed vide Ireland v rittle ante vol for  to alter the property of it or course of descent this money must be invest in  land and sometime sham purchase have be make for that purpose and she may then  levy a fine of the land and give it to her husband or anybody else there be a  way also of do this atkins without lie the money out in land and that be by  come into this court whereby the wife may consent to take this money as  personal estate and upon her be present in court and be examine as a feme  covert upon a fine be as to such consent it bind this money article to be lie  out in land as much as a fine at law will the land so Pearson v Brereton post  vol Cunningham v moody Ves Binford v Bowden Ves jun in a case where trustee be  to pay the interest of a sum of money to the wife for her life the court will  not authorize a departure with her life estate by examine her in the nature of  a fine at law Fraser v Baillie bro Charles Rep say vide anon Ves and Willats v  Cay ante and she may dispose of it to the husband or any body else and the  reason of it be this that at law money so article to be lie out in land be  consider bare as money till a actual investiture and the equity of this court  alone view it in the light of a real estate and therefore this court can act  upon its own creature and do what a fine at commonlaw can upon land and if the  wife have crave aid of this court in the manner I have mention she may have  change the nature of this money which be realize but she can do it by deed as  to the article in suppose the wife under no disability I be of opinion that  they do not import any variation of this estate from real to personal for it  be there agree that the twenty thousand pound shall be transfer to trustee who  atkins er p be to sell they and buy land to be settle to the same use as in  the article of so far this money be no doubt to be consider as realize and  though there be a proviso upon this contingency that if the widow die before  the money be invest in land that then it shall be divide and go among the next  of kin their executor and administrator yet as that contingency have not  happen and the widow be now live the original trust be still subsist for the  money to be consider as realize that be so I be of opinion that the article  have make no conversion of the estate from real to personal but it still  remain realize whether it be twenty thousand pound in money or so much  Southsea annuity another question have arise that suppose the fund be to be  lie out in land yet whether the whole produce of twenty thousand pound souths  a annuity be to be lie out when sell or only the sum of twenty thousand pound  be to be take out of the produce and invest in a purchase I be of opinion the  true meaning be that the whole produce of twenty thousand pound Southsea  annuity ought to be lie out in such purchase and the construction Mr hand the  trustee aim at will not be answer if only twenty thousand pound in money be to  be lie out Mr hand insist the twenty thousand pound Southsea annuity be set  apart only as a security for the twenty thousand pound and when that sum be  raise the residue be to be consider as part of the personal estate of Mr bourn  but it ought not to be consider so for all the party who have any atkins  interest in the personal estate of Mr Deacle agree that twenty thousand pound  Southsea annuity shall be transfer to trustee upon trust to sell and lie out  in land the money arise thereby subject to the eight hundred pound a year  annuity be a good agreement to bind the whole produce of the Southsea annuity  for it be a agreement of all the party who be entitle wherein each agree to  part with his share and in this they may have one view to give better security  to mrs Deacle as to her annuity and another to increase the interest of the  heir but if only twenty thousand pound be to be lie out and there shall be any  surplus from the annuity it will not go total from Mr bourn but it be Dart of  the estate of Mr Deacle will be distributable and Mr bourn will only have his  wife share beside this matter have rest this eighteen year and there be a  agreement by proper person to swell the interest of the heir at law it will be  very hard to deprive he of it and if I shall agree with Mr hand he can only  insist upon the value of the annuity at the time of the transaction in just  after the fatal year when they be v r little above par so that mrs bourns  share will be very trifle it have be insist that mrs bourn can no more agree  to turn money into land than she can land into money but there I differ  because as to the share of Mr Deacle the husband Mr bourn be entitle to that  in right of his wife and have a absolute dominion over it and he be a party to  the agreement therefore the decree at the roll must be affirm and the article  must be execute accord to the express word and the whole produce of the  annuity lie out in land for hat purpose another question be as to one hundred  and sixtyfour pound annihilation money lie out by one of the trustee and to be  sure he be to have a allowance for it but out of what fund it have be say the  plaintiff it shall come out of the estate of Mr bourn or the whole personal  estate of Mr Deacle on the part of Mr bourn the defendant it be insist that it  shall come out of the annuity fund itself and to be sure it must for if Mr  Oldham the plaintiff insist that the annuity be to be vest in land instead of  twenty thousand pound in money he must abide by the consequence of that fund  for if it shall be reduce Mr Deacles personal estate be not to make good the  deficiency of it for it be only bind to make good twenty thousand pound in  money another point be as to the indemnity of Mr bourn and Mr Oldham they have  covenant for themselves and their respective heir executor and administrator  to make good Mr atkins Deacles annuity of eight hundred pound and by that mean  have bind their own estate at law but they be only to be consider as security  for Mr Deacle and be to be indemnified out of his estate for this arise  original on Mr Deacles covenant for himself his heir executor and  administrator to settle on mrs Deacle that annuity and though Mr bourn and Mr  Oldham be bind as to mrs Hugh yet as to one another they be entitle to have a  indemnity out of Mr Deacles atkins er p estate and mrs Deacle have a right to  have some further fund set apart out of Mr Deacles estate to supply this  annuity and to indemnify the surety and as it depend on Mr Deacles covenant  which be both for the heir and for the executor and administrator it be a  personal debt and to be charge upon his personal estate in the first place and  the real estate be only Chargeable on failure of the personal Lord Hardwicke  affirm the decree Reg lib b fol