case Hervey versus aston S c atk see in re more Ch d a by settlement after  marriage create a term in trust by mortgage or safe to raise pound for the  portion of each of his daughter provide they marry with their mother consent  and direct a yearly payment out of the rend until they marry and of any of  they die before marriage with such consent her portion to cease and the  premise to be exonerate thereof and if it be raise to be pay to such person to  who the premise shall belong and by will he create another trustterm to raise  by safe or mortgage pound whereof pound to be pay to each of his daughter in  augmentation of their fortune subject to such condition as in the settlement  and by a codicil create another term for the better raise their portion a die  the daughter marry without consent the portion shall be raise but the husband  shall make competent settlement sir Thomas Aston by settlement after marriage  create a trustterm of one thousand year the trust whereof he declare to be by  mortgage or safe of the premise to raise the sum of pound for the portion of  each of his daughter provide they marry with case tempt Talbot er p the  consent of the defendant their mother then direct a yearly sum to be pay they  out of the rend and profit until they marry and if any of his daughter shall  happen to die before marriage with such consent that her portion shall cease  and the premise be exonerate thereof and if such portion shall be raise in  whole or in part that the same shall be pay to such person to who the premise  shall belong by his will he create another trustterm to raise by safe or  mortgage the sum of pound whereout pound case tempt Talbot to be pay to each  of his daughter in augmentation of their fortune but subject to such condition  as be declare in the settlement and by a codicil in pursuance of a power of  revocation he create another trustterm for the better raise of his daughter  portion sir Thomas die in leave eight daughter the daughter in easter term  file their bill against lady Aston and the trustee for the purpose of have the  trust of their father will carry into execution and their portion secure to  they Reg lib one of who Mr Hervey marry after the age of twentyone but without  the consent of her mother and another marry Mr Clutton at her age of nineteen  and without consent likewise and they and their husband bring their bill in  Trinity term Reg lib against their mother and brother to have their portion  and additional fortune and to have the real estate apply towards payment of  their respective portion allege that upon that respective marriage their  portion become Payable Mr Clutton the husband of one of the daughter die  whereupon they bring a bill of revivor and a decree be make by consent with  liberty to apply far to the court and now Mr Hervey and his wife and mrs  Clutton prefer their petition for payment of their portion Mr Hervey offer  therein to settle his wife fortune and they insist that the land be sufficient  to answer the daughter additional portion the master of the roll have take  time to consider of this case now deliver his opinion the question be whether  the plaintiff be entitle to those original and additional portion both the  marriage be have without the consent of the lady Aston the mother and first it  be to be observe that these portion be provision for child second that the  loss of these provision be a penalty and three that this court can impose term  upon the husband as to the settle the fortune nor be provision for child mere  voluntary since nature oblige parent to take care of their child f n b of the  new edition and that the court do very early impose term upon husband apply  for their wife fortune appear case tempt Talbot from the case of Shipton in a  book call report of case in the time of sir Heneage finch Rep tempt finch vide  also as to this point milner v Colmer p will jacobson v William p will Adam v  pierce p will brown v Elton p will Bosville v Brander p will Jewson v Moulson  atk ex part Corsegame atk grey v Kentish atk Saddington v kinsman bro Charles  Rep Worral v Marlar Bushman v pell both report and cite by Mr Cox in note p  will Dimmock v Atkinson bro Charles Rep now for the clear up of this question  it be to be consider that by the canon law all condition against the liberty  of marriage be unlawful Swinbourne and in the same chapter it be say that  although the legacy be give over yet it be void as be in restraint of marriage  and consequent against the good of the commonwealth thus it stand by the  ecclesiastical law Vid the case of long v Dennis burr and in more Pigot  case Gresly v Luther S c which case Mr justice comens be report to say be  determine in the ecclesiastical court neither do it appear there be any devise  over atk cite by I winch come up to the present case it be a condition annex  to a legacy that the daughter shall marry with the consent of the mother she  marry without her mother consent and yet sentence be give that she shall have  her legacy which show that the commonlaw court have adopt the notion of the  ecclesiastical lawyer this court indeed have not go so far wherever there be a  devise over that devise over have always be hold to be good but where there be  no devise over such condition have be only consider as in terror Mod Abr Eq  can and there be a reasonable foundation for construe such devise to be in  terror only for though a daughter marry without her father consent yet it be  not to be suppose that this severity be he live will carry he so far as to  leave her quite destitute beside whatever be injurious to the commonwealth be  unreasonable and therefore it be that restraint of marriage be discourage by  the Roman law for these reason this court have construe such limitation to be  only in terror unless there be a devise over indeed it have be insist that in  the present case there be a devise over for that by that clause of the will  whereby the testator provide the additional sum of pound to each of his  daughter he give the residue over and above the pound apiece to his wife but  the legacy be not by that give over only the residue over and above the pound  it have be likewise insist that by case tempt Talbot the clause in the  settlement declare that if any shall die before marriage with such consent  that her portion shall cease there be a sufficient disposition of it but sure  this be not a good disposition within the meaning of those case that allow a  limitation over to be good for this be not to take place upon marry without  consent but upon case tempt Talbot er p die before marriage with such consent  and be no more than provide for daughter die unmarried he take it all along  that if they marry they will do it with consent here do not appear to be any  person in the testator view to who these fortune shall go over as there do in  all the case where these limitation over be allow the intent be as clear in  those case to give it over upon breach of the condition as that up on  performance of it the first taker shall retain it as to authority I shall cite  first those that relate to personal estate the case of escot versus escot  February and mention in Chan can be a devise to his nephew and niece to his  nephew at twentyone to his niece at twentyone or marriage but if they marry  without their mother consent then he devise it over and the court go so far in  this case as to decree the legacy notwithstanding the devise over the next be  that of sir Henry Bellasys versus sir William ermine Chan can and agree with  the register book the condition be that she shall marry with the consent of a  and if not that she shall have but pound per and the court hold this proviso  to be only in terror so Garrett and Prettys case in this case the daughter be  hold to be entitle to the portion though she marry without consent because it  be not devise over but only direct to au into the surplus but in the case of  Amos v Horner the residuary bequest be hold to be a sufficient devise over so  Scott v tiler bro Charles Rep vern where for want of a devise over the  condition be hold to be but in terror the true reason of this distinction be  give in Stratton and Grymess case vern that a devisee over be name he must be  look on as a person who the testator consider and have in his think as to what  provision and benefit he be to have by the will indeed that of Amos versus  Horner Abr Eq can be contrary to the former determination case tempt Talbot  but no resolution be there take but Lord chief justice will in his argument in  Hervey v Aston be report to say of this case that though indeed there be no  decree to be find in the register yet it appear by the calendar that a decree  be make but be against the plaintiff he suppose it have never be draw up but  it go off for want of party and never come on again and in that of creagh  versus Wilson vern the intent of the condition be to provide against his  daughter marry a papist which since the protestant religion have be settle  here be a very good condition and if the testator intent be defeat in that  respect the legacy shall not be pay nor will these fortune be Chargeable upon  land vary the case for although they be to issue out of land and be secure by  deed yet this be upon a direction of trustmoney though by deed the court will  adjudge this limitation to be only in terror the intent of the party be as  much to govern in construction of trust as in construction of will as be say  by Lord summer in Sheldon and dorm case vern nor be the case of fry versus  porter Mod Eq Cas Abr applicable to the present case that be a condition annex  to a legal estate and this be a equitable interest only in farmer and compton  case Chan Rep although the marriage be against consent yet the daughter be  hold to take by the opinion of two judge to who it be refer and in that of  Fleming versus waldgrave Chan can the benefit of the lease be decree to the  administrator notwithstanding the devise over indeed in that of Aston versus  Aston vern the court will not relieve because of the express word of the  devise over the Lord falkland case vern be not at all applicable to this case  nor will it be a authority almost in any case from the peculiarity of its  circumstance that of king versus wither report in a book compose by the late  Lord c b Gilbert call report in equity and prece in Chan be a express  authority for the plaintiff although I can agree with what be there say that  trustmoney to arise out of land must have the same construction that the land  themselves will so likewise be the determination in Semphill versus Baily this  case be hear in the duchy court in person Lechmere Chan assist by Lord chief  justice king and Mr justice dorm and the reason the chancellor and the chief  justice go upon be that the condition appear to be a lose inconsiderate  expression and beside there be no devise over but Mr justice dorm dissent  prece in Chan by all these various judgement it appear that such clause in  restraint of marriage be never take favourable case tempt Talbot but general  restrain as intend only in terror in the present case it be a sum of money  charge upon land but there be no distinction between condition annex to money  charge upon land and condition annex to portion arise out of the personal  estate and portion by will be due by ecclesiastical law notwithstanding such  condition as this annex to they portion by settlement although under the like  condition be likewise due by the law and rule of this court and therefore I  think the plaintiff well entitle to their several portion and so order that Mr  Hervey shall make his proposal before the master as to the settle his wife  fortune and that mrs Cluttons fortune shall be pay to her her husband be dead  case tempt Talbot er p Reg lib a fol the master of the roll seem to have  determine this case upon a principle that a condition annex to money or  portion charge upon land be entitle to the same equitable construction to  avoid a forfeiture as condition annex to portion arise from personalty and  that notwithstanding the condition be a precedent one but afterward in Trinity  term this decree be reverse by Lord Hardwicke Chanc assist by Lord chief  justice lee of the king bench Lord chief justice will of the common plea and  Mr justice comens of the same court they seem to have consider that portion or  interest direct to be raise out of land have nothing testamentary in they and  therefore be not to be govern by the rule of the civil or canon but by those  of the commonlaw that no rule be more fix than that portion charge upon land  do not vest until the time of payment arrive that the present condition to  marry with consent be a lawful one and a condition precedent and that be such  nothing vest in the plaintiff until that condition be perform vide Comynss Rep  S c atk S c where the reader will find the argument of the judge with the  reason which induce a reversal of the decree at the roll state much at large  it seem therefore by this decision to be settle that condition in restraint of  marriage so far as the same respect interest arise out of land be to be govern  by the rule of the commonlaw and therefore whether the condition be precedent  or subsequent or whether there be a devise over or not the interest shall  never vest until the condition be perform vide Popham v Bamfield vern bertie v  Lord Falkland Chanc Cas Freem and vern fry v porter Chanc Cas Mod S c Pigot v  morris Sel Cas in Chanc Mansell v Mansell cite and state in bro Charles Rep  Ambrose v Ashby burr but with regard to personal legacy the rule seem to be  that the condition in restraint of marriage whether precedent or subsequent  shall be void unless there be a devise over in which case the right of the  devisee over shall prevail Bellasis v ermine Chanc Cas sempill v baily Prec in  Chanc Pulleing v ready will Wheeler v Bingham atk Reynish v Martin atk Elton v  Elton will chancy v Graydon atk Daley v Desbouverie atk Underwood v morris atk  Hemmings v munckley bro Charles Rep so a gift of the general residue without  any specific bequest over have be hold to be effectual to defeat a legacy  where the same be annex to a condition to marry with consent and the legatee  afterward marry without consent Amos v Horner Eq Cas Abr Scott v tiler bro  Charles Rep which seem to have settle this point the contrary have be hold in  some antecedent authority garret v pretty Verrr Freem S c Wheeler v Bingham  atk paget v Haywood cite atk the case of Scott v tiler the late authority upon  this subject be very elaborate argue and the principle which the early and  late authority go upon very through investigate by this decision therefore it  shall seem that a restraint impose by a parent upon a child from marry without  consent or until a certain age c be a reasonable and therefore a lawful one  that there be no distinction in the case of a personal legacy or a portion  Payable out of money between precedent and subsequent condition whether the  legacy shall vest where the condition have not be perform and there be no  devise over that a bequest of the residue be as effectual to defeat a personal  legacy or a portion Payable out of money when the condition which be to vest  the legacy have not be perform as a specific devise over case tempt Talbot er  p