atkins case TROUGHTON versus TROUGHTON February Ves SC where there be a  general power give or reserve to a person for such use c as he shall appoint  this make it his absolute estate and give he such a dominion over it as will  subject it to his debt Henry Troughton the elder the plaintiff late father  agree on the marriage of the plaintiff with his late wife in consideration of  the fortune the plaintiff will be entitle to to settle certain freehold and  copyhold land on the plaintiff and his wife and their heir and on the three of  July surrender a copyhold estate at berkhampstead in Hertfordshire to himself  for life remainder to the plaintiff S for their life and the life of the  survivor remainder to the plaintiff his son in fee Henry Troughton the elder  by lease and release date the d and that of July convey to two trustee and  their heir in consideration of the marriage then intend between the plaintiff  S freehold land at Bayford in Hertfordshire to the use of himself for life  remainder to the plaintiff and the survivor for life remainder to their issue  remainder to the plaintiff his son in fee Henry Troughton the elder covenant  for himself his heir and executor with the trustee that all the premise be  free from encumbrance except the title of dower which his wife Margaret  Troughton have in the freehold land the plaintiff and his late wife by their  bind of the that of July become bind to Henry Troughton the elder in the  penalty of pound to surrender within six month after the death of Henry  Troughton the elder a part of the copyhold premise to the use of such person  and for such estate as he shall by deed or will appoint or to pay the sum of  three hundred pound to such person as he shall by deed or will appoint and in  default of such appointment to surrender such part of the copyhold premise to  his daughter and Helena Troughton in fee or to pay her three hundred pound at  the election of the plaintiff or the survivor the plaintiff soon after marry  Henry Troughton the elder die the that of November have make his will and  thereby give the part he have reserve of the copyhold premise to his wife  Margaret for life remainder to and Helena his daughter in fee or in case the  plaintiff will pay the three hundred pound he give this in like manner and  make Margaret his executrix and residuary legatee who prove the will and  possess herself of the personal estate and get into her custody the write  relate to the freehold and copyhold estate and likewise the copyhold itself  though the plaintiff give notice they will elect to pay the three hundred  pound atkins er p atkins the plaintiff discover just before the fill of their  bill that Henry Troughton the elder have previous to the marriage of the  plaintiff on the that of June surrender the copyhold premise to one Sarah  Runnington for secure two hundred pound and interest which be still unpay and  in September the plaintiff become bind with his father as a surety to Sarah  Runnington for another sum of fifty pound the plaintiff have bring his bill  against Margaret his motherinlaw and Helena his half sister and Sarah  Runnington to the end that what be due on the mortgage of the copyhold estate  may be pay out of the asset of Henry Troughton the elder and that the  principal and interest due on the bind to Sarah Runnington may be also pay  thereout and that the defendant Margaret may be enjoin from put the bind in  suit give by the plaintiff for payment of the three hundred pound and interest  the defendant and Helena Troughton set forth by her answer that Henry  Troughton the elder subsequent to his will by deed poll of the that of July  recite his power and in consideration of his love for law daughter and for  make a provision for her after his decease appoint that the plaintiff or  survivor of they shall within six month after his decease surrender the  copyhold premise to the use of and and her heir or else pay three hundred  pound to the defendant and her executor or administrator the say premise to be  surrender or three hundred pound to be pay at the option of the plaintiff and  by deed of equal date for the better inform the deed of appointment assign the  bind give by the plaintiff to a trustee his executor c in trust for the use of  the defendant and Helena Troughton and insist that the deed of appointment and  assignment in trust for her be a revocation of so much of her father will as  purport to be a devise of the copyhold message or of the three hundred pound  to be pay in lieu thereof and that she be now absolute entitle to the benefit  of the alternative in the condition of the bind mention at the election of the  plaintiff free from all encumbrance and to the profit or interest due for the  same from the testator death the defendant Margaret insist that she be not  oblige to pay the three hundred pound or any part of it towards satisfy Sarah  Runningtons mortgage or bind debt but be Willing to apply the personal asset  of the testator Henry Troughton as far as they will go towards the payment of  the mortgage and bind Mr brown for the plaintiff argue that the three hundred  p I zounds be to be consider as asset of the father as it be atkins absolute  in his power and that the court ought to intercept this money for the  plaintiff benefit notwithstanding the appointment and for this purpose cite  the case of Baintain versus ware April atk SC and case cite there there George  ware have a power to charge his wife estate with two thousand pound by will  give pound apiece to his two sister and die in debt to the plaintiff the  question be whether that appointment shall defeat the creditor from have  satisfaction out of the two thousand pound as part of the testator personal  estate your lordship be of opinion this ought to be consider as the personal  estate of George ware and that where there be a general power give or reserve  to a person for such use intent and purpose as he shall appoint this make it  his absolute estate and give he such a dominion over it as will subject it to  his debt and decree the creditor shall have the benefit of it he likewise cite  jordan versus savage the that of November Mr capper of the same side mention  the case of Hinton versus toy the that of November before Mr Verney at the  roll atk there doctor Broughton charge his estate with pound to the wile of a  for life to the husband for life mind to the issue of the marriage and in case  of failure of issue then to such person or person as she shall direct by any  appointment of she and for want of such appointment to her heir the wife  execute a power to the husband to dispose of this sum which she direct to be  pay to her husband to be employ by he to such charitable use or to such other  purpose as he shall think fit the husband dispose of it by will among his own  relation the question be whether the three hundred pound be to be consider as  part of the estate of the husband and liable to satisfy his creditor the  master of the roll Mr Verney say the only doubt be upon the word atkins er p  charitable use which show the wife have some wish it may be so employ but the  latter word absolute leave it to the husband discretion whether he will  dispose of it in charity so that there can be a atkins strong instance to  prove ownership and the creditor do not resort to the will but show by the  appointment that their right commence from the wife execution of the power and  there never be a construction in favour of legatee to the prejudice of  creditor unless the creditor find their right under the will itself his honour  decree it to be asset of the testator and say that it ought to be apply to the  payment of his debt unless there be a sufficient fund out of the rest of the  personal estate to discharge they if so the legatee right under the will be  preserve to they Mr attorney general for and Helena Troughton the daughter  state it that she have no other provision but this appointment that the sum of  three hundred pound upon the face of the article ought to be consider as a  provision for a young child and so intend by all the contract party that the  father appointment do not alter the case for if he have make none in default  of that it will have go to the daughter and therefore can proper be say to be  his asset Lord chancellor the plaintiff have a plain equity to come into this  court to have the mortgage and bind to Sarah Runnington disencumber out of the  father asset both real and personal and likewise out of the three hundred  pound so far as it can be consider part of the marriage agreement with regard  to the fifty poundsbond it appear the son be only a surety for his father for  he have the whole money and therefore the son entitle to be reimburse out of  his father asset the question be first whether the mortgagee be entitle to  tack the fifty pound bind to the mortgage if a mortgagor after make a mortgage  borrow money of a mortgagee upon bind and the mortgage premise descend upon a  heir at law or come to a volunteer the court will not suffer they to redeem  the mortgage without pay the bind because it will occasion a circuity by put  the obligee to sue for it out of the same estate which be asset in the hand of  the heir or volunteer powis v Corbet atk but where a person claim the equity  of redemption as a purchaser for a valuable consideration without notice of  the atkins mortgage the mortgagee can tack his bind because in such a case the  estate will not be liable to the bind debt and there before be entitle to have  it only out of the general asset of the father Coleman v winch p W archer v  snatt stram pound the next question be how far the three hundred pound that be  charge by a disjunctive charge on the copyhold estate be liable to indemnify  the plaintiff against this mortgage I be of opinion the plaintiff be entitle  if the real and personal asset of the father be not sufficient to be reimburse  the residue out of the three hundred pound in consideration of the agreement  the father have enter into upon the marriage of his son the son bind himself  to reconvey the copyhold estate to the use of such person and for such estate  as the father shall by deed or will appoint or to pay three hundred pound and  in default of such appointment to surrender such part of the copyhold premise  to Ann Helena Troughton in fee or to pay her three hundred pound this be part  of the consideration which be to move from the son in return for the  conveyance from the father of the freehold estate c and his covenant that all  the premise comprise in the article be free from encumbrance then it will come  to this question whether the father or any person claim from he shall take  back this part of the estate without the son have the benefit of the agreement  between he and his father it will be contrary to all rule for each person  where there be a agreement must perform his part thereof it have be say this  be to provide for another child a daughter and therefore insist she be to be  consider equal as a purchaser with her brother and have by the counsel for her  be put on the same foot as a child entitle to a portion under a marriage  settlement and to be sure a father and old son be not entitle to affect young  child portion by any encumbrance they may have bring on the estate afterward  atkins er p but here the father may have direct the three hundred pound to be  reconvey to his wife or a stranger and his make it a provision for his  daughter be a secondary consideration only can the wife or a stranger if  appoint to they have take this three hundred pound without apply so much as  atkins will discharge the mortgage most certain not and though it be true that  in default of appointment it be to go to the daughter yet the father may have  disappoint her total as the whole be entire at his pleasure if indeed the only  condition of the bind have be that the brother shall convey part of the  copyhold estate to the defendant and Helena Troughton his half sister or pay  her three hundred pound something plausible may have be urge for her there be  but three day difference in point of time between the mortgage and the  settlement when the father contract with the son to reserve to himself a power  of dispose of three hundred pound and conceal from his son the mortgage and  suffer the encumbrance to continue and do not redeem it but as this be intend  to be a provision for his daughter the rest of the father asset ought to be  first apply in discharge of the mortgagee principal and interest Lord  Hardwicke therefore refer it to a master to take a account of what be due to  Sarah Runnington for her mortgage and on the plaintiff payment of the  principal interest and cost Sarah be to convey and assign the mortgage premise  to the plaintiff in case the plaintiff shall redeem the mortgage then the  master be to carry on the account of subsequent interest for what shall be so  pay to the mortgagee the master be also direct to take a account of what be  due to Sarah Runnington for principal and interest on her bind and to tax her  cost so far as relate to the bind and on the plaintiff pay principal interest  and cost on the bind the defendant Sarah Runnington be to deliver it up to the  plaintiff and in case the plaintiff shall pay the principal interest and cost  on the mortgage he declare the plaintiff ought to be consider as a specialty  creditor on the estate of his father for so much as he shall have pay for  principal interest and cost on the mortgage the master be likewise to take a  account of the personal estate of the testator Henry Troughton receive by  Margaret his executrix and such personal estate be to be apply in pay atkins  and reimburse to the plaintiff what shall be so pay by he to Sarah Runnington  for principal interest and cost on the bind and in pay and reimburse to the  plaintiff what he shall have pay to Sarah Runnington for principal and  interest on the mortgage in a course of administration and in case the  personal estate of the father shall not be sufficient to satisfy and reimburse  the plaintiff what shall be so find due to he for what he shall have pay to  Sarah Runnington for principal interest and cost on the mortgage together with  subsequent interest and cost of the reconveyance then he declare the plaintiff  be entitle to have the deficiency make good by retain so much out of the sum  of three hundred pound and interest after mention and then his lordship direct  the bind for three hundred pound to carry interest at the rate of four and a  half per cent from six month after the testator death and that this shall be  apply to satisfy the plaintiff so much as shall not be satisfy out of the  father personal estate and on the plaintiff pay the residue to the defendant  and Helena Troughton she be direct d by Lord chancellor to deliver the bind  and appointment to be cancel atkins er p