case churchman against harvey term to raise daughter portion to daughter of  son on failure of issue male of grandson with power for grandson to jointure  hold the portion not raisable nor interest Payable till after the death of the  jointress see smith v Evans p lib Reg a foe nom churchman v bet in chancery  that and that June before will and Wilmot lord commissioner by indenture of  settlement of that and that of August Robert Harvey and John his son in  consideration of a portion before advance by the father of Elizabeth the wife  of John and which be say to be pound convey land ambler to trustee to the use  of the say John Harvey for life remainder to Elizabeth his wife for life for  her jointure remainder to Robert the son of John for life remainder to his  first and other son in tail male remainder to the second and other son of John  by the say Elizabeth in tail male remainder to trustee for two hundred year  remainder to John Harvey in tail general with remainder to Robert the  grandfather in fee the trust of the term be declare to be that in case at the  time of failure of issue male of the body of John on the body of Elizabeth or  at any time after there shall happen to be one or more daughter or daughter of  the say John and Elizabeth his wife that the trustee shall at any time from  and after the commencement of the term of two hundred year in possession by  sale or mortgage of the say term and by the rend and profit in the mean time  raise such sum for the portion and maintenance of such daughter c videlicet if  but one pound if two or more pound equal between they Payable at twentyone or  marriage and in the mean time to raise such maintenance as to the trustee  shall seem meet not exceed pound yearly if but one and not exceed the interest  of their fortune if more than one at pound per cent with proviso that Robert  Harvey when he shall be in possession of the premise may limit the whole or  any part before or after marriage unto or to the use of any woman he shall  marry for her life for her jointure provide if any good or land descend to any  of the daughter from the say John Harvey or if he advance they in his lifetime  the value shall be account as part of their portion if he so declare it by  deed or will John Harvey the son die on that November leave issue the say  Robert and James his son and five daughter Robert the grandson of the grantor  after his marriage with his wife whether by indenture of the d of march  appoint the premise to trustee for ninetynine year for a jointure for his wife  if she shall so long live on the that June James the young son die without  issue ambler on that September Robert Harvey the grandson die without issue  have devise all hisreal and personal estate to his wife and on his death there  be a total failure of issuemale of John Harvey whether the widow of Robert the  grandson die in bill by the four daughter of John to have the pound raise Q  from what time they be entitle to interest for the principal money whether  from the time of failure of issue male or only from the death of the jointress  it be contend on the part of the plaintiff that they be entitle to interest  from the time of the failure of issue male and that either the charge of pound  ought to take place of the jointure under the power or that interest from that  time ought to be raise out of the reversion that the power be not well execute  at law for that such a jointure ought to have be make as will have be good  within stat of h of jointure or at least she ought to have have a freehold  vest in her or in trust for her that the appointment be to trustee for  ninetynine year if she so long live that not only the law be on the side of  the plaintiff but they have a better equity than ambler er p the defendant or  at least they have a equal equity and then the court win not interfere but let  the law take place that the jointure be voluntary be after marriage that the  plaintiff be the child of John Harvey and do not appear to have any other  provision than the pound under this term of year that it appear to be the  intention of the party to the settlement that the plaintiff shall have the  pound raise on failure of issue male of John that it be unnatural to postpone  the daughter of John to the wife of Robert who be the son of John that the  hardship will be much great the one way than the other that the term of year  be consider in equity only as a charge upon the estate which passes subject to  that charge whereas if the jointure be to take place of the term the plaintiff  must wait until after the death of the jointress but if the pound ought not to  disturb the jointress yet it be insist that interest ambler shall be allow  from the death of Robert to raise and pay out of the reversion that the case  determine against raise portion in the lifetime of father or mother be  determine on consideration of family convenience which do not hold here there  be a end of the male part of the family on the death of Robert the grandson on  the other side it be argue that the original settlement though make after  marriage be for a valuable consideration that be the portion which have be  advance by the father of Elizabeth that both Robert the grandfather and John  his son be grantors and they may stipulate for the jointure which will be  sufficient in itself as in Osgood v stride will Lucas Rep Eq can ab pl that if  the settlement have be make before Robert the grandson be bear he will have be  tenant in tail but be in be he be make only tenant for life and therefore it  be necessary to give he a power of jointuring to enable he to marry that the  execution of the power must be take as if insert in the settlement itself and  then in case it be legal execute it will be consider even at law as if insert  next to the estate foe life to Robert and consequent take place of the term of  year and the case of Talbot v Tipper skin be cite for that purpose that this  jointure will have take precedence of the issuemale of John who by express  word be to take before the term can commence that the power be well execute at  law or if it be not yet it be a good execution in equity and ought to be  support to the saint it be argue not to be necessary that the wife shall have  a freehold or such a jointure as stat h require the word in the present case  be unto or to the use of any woman for her life for her jointure the meaning  of which be not a legal jointure but a provision for her life which have be  substantial answer by the appointment to trustee for ninetynine year if she so  long live to d that the power of appointment be give upon valuable  consideration and be execute to make a provision for a wife and for aught  appear the only on she ambler have that it can not be say to be a voluntary  execution it be to will stipulate for under the original settlement it will  not have be fraudulent against the creditor of Robert the grandson nothing  move from he and the creditor of Robert the grandfather be bar by the  settlement that the jointress be entitle to more favour than the daughter that  the pound be not the whole of the daughter portion but be a accidental and  contingent additional provision give to they on a particular event that there  be no particular hardship on the daughter for they can not be entitle until  after failure of issuemale of John which may not have be for a great many year  it be argue to be as unreasonable to raise the interest out of the reversion  that it be absurd to say that the money be not raisable at the time it be  Payable that the case be to be consider in the same manner now as if the  jointress be alive that if the power of jointuring have be give to and execute  by the father of the plaintiff they can not have hadthe money raise in the  lifetime of either father or mother Corbett v Maidwell Eq can Abr pl broom v  Berkeley Eq can Abr pl and many other case be authority against it the word  here be very strong videlicet after the commencement of the term in possession  the power be give to the brother make no difference the reason be the same in  both case to prevent the estate be consume the lord commissioner have hear the  reply on the that June deliver their opinion will Lord commissioner I be of  opinion that the power be not legal execute consequent the term will ambler er  p take place of the jointure at law but in equity it be a good execution and  interest ought not to be raise but from the death of the jointress in the  first place there be no colour to say that the interest shall be charge on the  reversion Q whether the term shall take place of ambler the jointure in equity  it be say that the wife be a volunteer and that the plaintiff have the law on  their side equity will not interpose but I be of opinion she be a purchaser  under the power which be create by a settlement make on valuable consideration  the son who part with a estate be a purchaser for valuable consideration and  the wife be a purchaser of the jointure by marriage which of itself be a  valuable consideration see post so that she be double a purchaser of her  jointure and though it be make after marriage yet it be a very strong case the  power be to jointure before or after marriage the plaintiff be entitle to  interest from the death of the jointress Wilmot Lord commissioner see a note  of the judgement of Lord commissioner Wilmot in this case from sergeant hill  ms post appendix I there be three question saint whether the power of  jointuring give by the settlement of be well execute at law d suppose it be  not whether it be a good execution in equity d whether the interest shall  commence at the death of the grandson or of his widow and consequent whether  the plaintiff be entitle to interest from the death of Robert or of the widow  Q to the saint the rule of law as to execution of power be lie down in    Whitelocks case battle v Popham Str in Kingsbench Michaelmas g Ro Abr a  affirmative power must be strict pursue as if one have power to make a lease  for three life he can make a lease for year determinable on three life but if  the power be with a negative by way of restriction as provide the lease do not  exceed three life at most in that case for year determinable upon three life  be good that be a solid distinction in my opinion the estate move from Robert  the grandfather for it be not show nor do it appear that John ambler the son  have any interest in the estate at the time of the settlement the reason of  his be a party be because he receive the pound and though he be a grantor yet  that be no more than common for the son to join with the father the reason why  a estate of freehold be require to be in the wife or in trust for her under  the appointment may be to prevent the next in remainder suffer a common  recovery during her light the appointment be for year determinable upon her  life which differ essential from the power and be not a good execution at law  see battle v Popham and b shop of Chester v Freeland Leas report if the  appointment have be immediate to the wife for year determinable on her death  it have be bad at law its be to trustee furnish a further objection power be  introduce since the statute of use they operate as a declaration of use which  as they may be create by declaration so they may be determine in the same  manner the feoff be seize to the use which by the appointment be declare to  the trustee and a superaddition to the use of the wife be void at law be a use  upon a use to the second I be of opinion that the defective execution of the  power ought to be supply in this court I be incline to think it a settlement  for valuable consideration but I do not build my opinion u on that the portion  move from the wife father be a good consideration for all the limitation  respect the marriage the power of jointuring be give in lieu of his be tenant  in tail which he must have be in case he have not be in be at the make of the  settlement a voluntary execution of this power be as much in the view of sir I  Henblin who advance the pound portion as a execution of it for a valuable  consideration be it be the same as if the execution have be insert in the deed  of settlement the estate may have be limit to such woman as Robert the  grandson shall marry if Robert the grandson have be in debt a voluntary  execution of this power will not have be fraudulent against his creditor for  nothing move from he note but it will seem that in general a deed execute a  power over real estate be to be deem a conveyance within the stat of Elizabeth  so as to be fraudulent see Ves Sugden on power d edit ambler this be not the  case of equal equity the wife equity be preferable to the ambler er p daughter  it be material that their equity arise under the same conveyance which give  the equity to the wife it will be n objection to this court aid the defective  execution if the wife be a volunteer to lift v to lift William carter v carter  mosely at the roll that of June Harvey v Harvey atk barn Michaelmas in which  last case the two former be cite I have no doubt of the intention of the party  that the pound shall not be raise until the term commence in possession the  word be strong than in Corbett v Maidwell Eq can Abr and broom v Berkeley Eq  car Abr I be satisfy the interest ought not to be raise out of the reversion  if the principal be not raisable in the lifetime of the jointress the interest  can be due till after her death for interest be only in lieu of nonpayment of  principal rattle v Popham stram in kingsbench special verdict in ejectment  settlement by indenture of that and that of September in which be insert a  power for Walter savage when in possession of the estate to appoint all or any  part of it to the use of or in trust for any woman or woman he shall marry for  the term of her or their natural life or life for her or their jointure Walter  savage previous to his marriage on the that of October demise a part of the  trustee to hold from his death for ninetynine year if Cecilia his intend pre  wife shall so long live for her jointure the court of kingsbench be of opinion  that it be not a legal execution of the power and afterward a bill be bring in  the court of chancery by the widow and on the that of November Lord Talbot  decree in her favour that she shall be quiet in the possession of the premise  during so much of the term as she shall live note it come on before the court  of chancery by the name of Neport v savage see this case in the appendix to Mr  Sugdens treatise on power No p from the registrar book and from a ms note of  the case the indenture recite the deed of that and that August and the  appointment be to trustee to hold from the death of the say Robert Harvey the  grandson for the term of ninetynine year if the say whether shall so long live  upon trust to permit her and her assign for so many year of the say term as  she shall happen to live after the death of the say Robert Harvey the grandson  to receive to her own use the profit of all the say premise as her fortune and  for her maintenance the bill state that say Ann Harvey by virtue of the will  of say Robert Harvey the grandson claim to be entitle to the feesimple of the  say premise subject to the say term of year and charge that say Ann Harvey  when she become entitle to the freehold of the say premise ought to have  immediate pay the pound in pursuance of the say settlement and that the say  John Harvey the survive trustee of the term ought to have enter on the say  premise and by sale thereof have pay the pound pray that the say John Harvey  the trustee of the term may enter on the say premise and by sale and mortgage  thereof raise the say sum of pound with interest from the time of the death of  thesaid Robert Harvey the grandson Ann Harvey put in her answer to the  original bill and it appear that after she become entitle to the premise she  convey the same to Moses Mendey in fee that pound part of the purchase money  be leave in the hand of the say Moses Mendey at pound S per cent interest in  order to satisfy the say sum of pound to such person who shall appear to be  entitle thereto when the same become due Ann Harvey soon after put in her  answer die without issue leave survive her Sarah her only sister and heir at  law who take out letter of administration to the personal estate of Ann Harvey  and then intermarry with Charles bet the suit be revive against bet and his  wife and the bill of revivor pray that the suit may stand revive and that  Charles bet and his wife may admit asset of say Ann Harvey and pay thereout  the interest which have accrue due for say pound from the time of the death of  Robert the grandson and Moses Mendey be make a defendant to the bill bet and  wife by their answer submit that they ought not to pay interest that have  accrue due on the say pound since the death of the say Robert Harvey but  insist that they be entitle to the interest of the say pound remain in the  hand of the defendant Moses Mendey from the time the same be leave in his hand  until the death of the say Ann Harvey it be declare that the plaintiff be  entitle to have the say sum of pound raise ambler er p together with interest  for the same from the time of the death of the say Ann Harvey after the rate  of per cent and the say Moses Mendey by his answer admit that he have retain  in his hand the say sum of pound and that he be to answer interest for the  same after the rate of pound S per cent from lady day it be order that it  shall be refer to the master to compute interest thereon after that rate and  that the say Moses Mendey out of the money that shall be find due from he  shall pay to the plaintiff the say sum of pound with per cent interest from  the death of the say Ann Harvey and that say Moses Mendey shall pay the  remainder of what shall be find due from he to the say defendant bet and his  wife and upon such payment be make it be order that the say John Harvey the  trustee shall assign the say term of year to the defendant Moses Mendey or to  such person as he shall appoint and all party be to be pay their cost to be  tax by the master out of the say estate