brown case alice Warburton and another appellant peter Warburton respondent  that February Mews dig ten xiv xv a make two of his daughter his executrixs  and direct they to distribute a sum of pound and also the residue of his  personal estate among themselves and their brother and sister accord to their  needs and necessity as they in their discretion shall think fit the court  restrain the exercise of this power by decree a double share to the old son  and heir look upon he as a necessitous person the other point determine in the  case as state in vern and vin c be that where a term be limit to raise portion  for young child by rend and profit the heir may have the portion raise by a  sale though the young child oppose it as they may insist on a sale if they  think fit the statement of the case in Eq can ab c and vin can be not justify  by this report it shall be thus a young child who portion in case he die  before be direct to survive attain and receive part of it but die intestate in  his father lifetime before the residue be pay hold that this residue do not  lapse or sink into the real estate but subsist for the benefit of the other  child and ought to be add to the father personal estate and dispose of accord  to his will the case under this name in Eq can ab c and vin c be on a point  total distinct and unconnected the Lord keeper decree be affirm vern Eq can ab  can viner vol p can vol p can vol p can vol p can vol p can Eq can ab c by  indenture of lease and release date the that and that of November Robert  Warburton the father convey all his estate to trustee for a term of year  subject to a power of revocation remainder to his old son Peter for life with  power when seize of the freehold in possession to make a jointure upon any  wife not exceed pound per and remainder to his first and other son in tail  male remainder to Thomas the second son for life with remainder to his first  and other son in tail male remainder to John the three son for life and to his  first and other son in tail male remainder to his daughter Alice and Hester  and the heir of their body remainder to his own right heir the trust of the  year term be declare to be that the trustee shall out of the rend and profit  raise pound for the portion of Alice pound for the portion of Hester pound for  the portion of Thomas and pound for the portion of John with interest at pound  per cent until he portion be pay and in case any of the young child shall die  under their portion be to be pay to the survive young child and the old son  Peter be to have pound per and for his maintenance until all these trust be  discharge brown er p brown on the that of may the father make his will and  thereby after give some legacy and confirm his settlement he give the residue  of his personal estate to his daughter the appellant who he appoint his  executor to be dispose of by they to the use of themselves their brother and  sister or to such of they and in such proportion as they shall judge most fit  and convenient accord to their needs and necessity and after again mention his  settlement the testator proceed in the follow word I do hereby further appoint  that my trustee shall raise out of the profit of my land pound and pay the  same to my executor to be dispose of by they to the use of themselves their  brother and sister or to such of they and in such proportion as they shall  judge most fit and convenient accord to their needs and necessity the testator  son Thomas have attain receive pound S d in part of his portion of pound which  be thereby reduce to pound S d but before he have receive any part of this  residue he die in his father lifetime and soon afterward the father die in  Michaelmas term the respondent file his bill in chancery against the appellant  and other proper party pray that the portion may be raise by sale of a  competent part of the premise comprise in the year term and that thereupon he  may be let into possession of the residue that he may also have a reasonable  share of the surplus of the personal estate and of the pound to be raise out  of the real estate and that the residue of Thomas portion may be consider as  sink in the real estate and not be raise the cause come on first before the  lord chancellor summer on the that of July who make no other decree than mere  refer it to a master to state the particular and value of the personal estate  and the different claim of all party and reserve all further consideration of  the matter in question until after the report the master have make his report  the cause come on to be hear before the lord keeper wright on the that of  October and that of November when his lordship declare that consider the  plaintiff be heir of the family and breed up to the law and look upon he as a  necessitous person he ought to have a double share of the personal estate and  of the pound which be to be raise out of the trust estate and decree the same  accord and also decree that the trustee shall sell the trust term of year of  and in so much of the trust estate as will satisfy the portion unpay and the  pound and declare that the residue of Thomas portion do not lapse or sink in  the real estate by reason of his death in his father lifetime but that it  subsist for the benefit of the other child and ought to be add to the father  personal estate and dispose of accord to his will brown from this decree the  defendant the executor appeal and on their behalf it be contend W Cowper that  the respondent ought not to have any and much less a double share of the  personal estate or of the pound because he be not under any necessity for the  decree by order a sale of part of the estate have entitle the respondent to  the possession of the residue which be near pound per and so that he be not at  all necessitous or at least not equal so with the rest of the family and it be  evident that the testator in the design distribution of his personal estate  consider only the necessity of his family and intend that most shall be give  where most be want that he have spend about pound in educate the respondent to  the law and in pay his debt and in several letter to he complain that he have  do more for he than he be able and that it be high time for he to make  provision for his young child and that the provision he intend for they out of  his real estate shall be pound but the provision make for the young child by  the settlement amount only to pound and therefore by the will the real estate  be charge with pound more in order to make up that sum and as to this pound it  can never be suppose to have be the testator meaning to charge his old son  estate with it to the intent that any part of it shall be distribute back to  such old son as that will be to charge his estate with a sum of money Payable  to himself but the personal estate and the pound be devise in as many word the  testator intent be the same as to both that the power give to the executor by  the will over the personal estate be entire discretionary and though subject  to be regulate by the court of brown er p chancery if abuse yet until it be  abuse it ought not to have be take from they and as to the residue of Thomas  portion it be insist that if he have die before his portion be express direct  by the settlement to survive to the other young child and much more ought it  to be raise as by his have attain it become vest in he by the settlement  beside the testator by his will express direct his real estate to be enjoy  under the charge appoint by the settlement and as this portion be one of those  charge the unsatisfy residue of it can not be take from the survive young  child without set aside both the settlement and the will on the other side it  be insist W Dobyns that the decree in give the respondent a double share of  the personal estate and of the pound be find in reason and justice because he  have the most need and necessity and labour under great difficulty than all  the other child that the discretionary power give to the executor be unnatural  and unjust and that their ill use of it respect the respondent give the court  of chancery just reason to interpose and correct the ill conscience of a  executor as have be frequent do in similar case and as to the pound the  remainder of Thomas portion it be conceive it ought brown to sink into the  estate because it be create by the father in a voluntary family settlement  with a power of revocation and as the son die a bachelor and intestate before  his father the court of chancery will never raise a child portion out of a  trust upon land when there be no occasion for it and more especial when if it  still subsist the father as next of kin be entitle to it by right of  administration but he never take administration or do any thing whereby it may  appear that he claim this portion there be also a cross appeal between these  party which be chief confine to the question whether the residue of Thomas  portion shall be raise or not after hear counsel upon the original appeal it  be order and adjudge that the same shall be dismiss and the decree therein  complain of affirm and that the appellant shall pay to the respondent for his  cost in defend the say appeal jour vol p and after hear counsel on the cross  appeal it be order and adjudge that the same shall be dismiss and the decree  therein complain of affirm