case seys against price LincolnsInnHall July a devise his land to trustee for  payment of debt and legacy and after to b in tail male b suffer a recovery and  enter into a treaty of marriage with c a infant a legatee of l and also of a  bind for l charge on the say estate on which b covenant with trustee by  article that in consideration of intend marriage and of the portion of l and  bind of l to settle a jointure upon c of onethird of the devise estate which  be about l per annum in bar of dower the marriage take effect and the wife  survive yet her choose in action be the consideration of the settlement shall  not survive in equity and this a good settlement accord to Henry cap to bar  the wife of her dower modern report er p but if in consideration of the wife  fortune which consist of choose in action a husband settle a estate inadequate  to such fortune and the degree of the wife a court of equity will not take  away that right which the law give the wife to choose in action S c bar Rep  Chan Richard seys devise his land to trustee in trust for payment of debt and  legacy and after payment of they in trust for Evan seys his cousin and the  heir male of his body with remainder over in trust for Charles seys in fee and  bequeathe to the plaintiff Elizabeth seys his daughter a legacy of three  thousand pound to be pay at twentyone and in the same will declare that he  have execute a bind to Elizabeth for two hundred pound and will it to be pay  her by his trustee out of his estate among his other bind debt Evan seys enter  upon the testator death and suffer a recovery of all the estate except one  hundred pound ayear and afterward upon a treaty of marriage with Elizabeth the  legatee then a infant enter into article whereby in consideration of the  intend marriage and of her portion be the legacy of three thousand pound and  bind of two hundred pound both Chargeable on Evan estate under the devise he  agree and covenant with trustee to settle upon her for life as a jointure and  in bar of dower one three part of the devise estate be about three hundred  pound ayear Evan and Elizabeth intermarry and be die without issue have first  make his will and therein devise to his wife Elizabeth for her modern report  life not only the onethird of the estate which he have before his marriage  stipulate to settle upon her but also the two remain three and also make her  his sole executrix Elizabeth have bring her bill to have the legacy and bind  raise out of the whole estate devise to Evan for her benefit and the equity  she suggest be that as she be a infant at the time of the marriagearticle  enter into she be not bind by they and therefore relinquish and waive all  benefit from they and claim entire under the will and that the legacy and bind  be choose in action and never release to her husband or extinguish by he still  remain subsist and continue charge on the estate and either vest in her by  survivorship at commonlaw or must be raise for her in equity as executrix  Hardwicke Lord chancellor the general question be whether this legacy and bind  be choose in action and never actual release to Evan seys be not subsist  charge on his estate or whether under the circumstance of this case they be  not extinguish and sink into the inheritance this may be consider in two light  the one whether Elizabeth the plaintiff be entitle in equity to these choose  in action in her own right by survive Evan her husband who never get they  release the other whether she be entitle to they in autre law as executrix to  Evan as to the first I will suppose that the legacy and bind be subsist charge  on Evan estate and view thing in this light I be of opinion that Elizabeth be  not entitle in equity to these choose in action by survivorship and my reason  for it be this if a man in consideration of a intend marriage with a infant  and of the infant portion make a settlement by way of jointure in bar of dower  which be good within the Henry c and after a marriage be have especial take it  that the wife be of the age of consent and then the husband die this jointure  in law will clear bar her of her dower and can be relinquish by her   light b  for otherwise it will be very mischievous and will make jointure on infant  very precarious and uncertain especial in noble family where the young lady be  often marry in their minority suppose a jointure be settle on a lady not only  in consideration of marriage but also of her portion which consist of choose  in action and the husband die without alter their nature or reduce they to  possession the wife undoubted at law will be entitle to they yet I be of  opinion as she will be bind by the jointure before marriage so the  representative of the husband will be consider in this court as purchaser of  her portion by virtue of that jointure and though the legal interest of such  choose in action vest in her by survivor and she may have the action at law  for the recovery of they yet a bill by the husband representative may be bring  to have the benefit of the security and for the wife to stand as a trustee for  they both which this court will modern report decree for they and will not let  the wife have those thing which be purchase from her by her jointure modern  report er p I mean if it appear that the jointure be adequate to her degree  and fortune and make without fraud for if it be make by collusion in the  husband who settle on her some inconsiderable jointure on purpose to bar her  of her dower which will be a more ample provision in that case if the wife  shall be entitle to the legal benefit of choose in action this court will not  under such circumstance of hardship and cosinage take from her that provision  which the law have give her and this matter of fraud will be a rebut equity in  the wife which she may set up against the equity suggest by the representative  of the husband but it be object in the present case that there be no jointure  that be effectual at law within the Henry there be only a agreement by article  to make a jointure which be not make but such a executory jointure in equity  will not be different from the case of a actual jointure at law for article  enter into for a valuable consideration to do a thing which be not actual do  yet it shall be consider in this court as do for they be favouriti of a court  of equity which will esteem the present article as a provision for the wife  will allow her the benefit of they and deem her as much the owner of the  estate in equity as if a legal settlement have be make pursuant to such  article and the husband too be consider as much a purchaser of the wife  portion under this executory agreement as if it have be carry into execution  and this be within the case of Blois v lady Hereford a vern Eq can Abr a where  though no mention be make of the wife personal estate as part of the  consideration of the settlement yet when after the death of the husband there  appear to be a choose in action which will belong to the wife at law the court  will not let her have it by survive her husband but decree it to his executor  and say she ought not to have her jointure and fortune both if so a strong in  the present case where the choose in action appear in the article to be the  express consideration of they and the husband intend to be a purchaser of they  they be her portion it be far urge for the plaintiff Elizabeth that the  husband have devise the whole estate to her for life therefore she have no  occasion and will not claim by the article but waive they and make her title  to the whole by her husband bounty under the will but I apprehend the will  make no difference for she can claim only twothirds under that for onethird  she have a right to under the article as to which the husband be esteem a  trustee for her and it be impossible he shall devise that which he have part  with before and have not at the time of the devise and they have only onethird  under the article conclude her from the benefit of her portion for she shall  not have both her portion and the jointure which be give her in lieu of her  portion modern report shall view this in one other light and suppose without  distinguish onethird under the article and the two other three under the will  it be consider that this devise of the whole estate for life be a satisfaction  for what Elizabeth may claim under the article a ample satisfaction it be for  it be a satisfaction and a great deal more in this court where a man agree to  settle a estate upon a wife or issue of the marriage and suffer the estate  stipulate to descend to the issue or devise it to the wife can either party in  such case claim under the article when what be give or suffer to descend be a  satisfaction it be certain they can for what be do in satisfaction of a thing  and be a equivalent to it be take in the same light as if the thing itself  have be do and therefore if the devise in the present case be a satisfaction  it be the same in the eye of equity as the jointure itself and so in this view  she can claim both her fortune and her jointure which be give in lieu of it  what I have hitherto say have be in respect to the demand make by the wife in  her own right as survivor I will now go to the other question which be if she  be not entitle in her own right whether she shall not have the legacy and bind  in autre law as executrix to Evan and upon this point I shall not admit or  suppose that the legacy and bind under the circumstance of this case be  subsist or continue charge on Evan estate in feesimple though his estate that  be not comprise in the recovery will bear another construction and I do not  know any case that where a person at full age be absolute owner of a estate in  fee and also of a charge upon such estate that modern report er p the charge  have be keep in he distinct from the estate and after his death levy and raise  out of it for a executor to the prejudice of a heir for in the case of she  factus and executor which often happen the general rule of the court have go  in favour of the heir for the benefit of the real estate to prevent charge be  bring upon it beside this portion can not be raise in the husband lifetime by  his wife for he be both debtor and creditor as be owner both of the estate and  charge upon it and the charge in his lifetime be unite to it and merge in it  and shall not after his death be sever from it the case of Thomas v kemish a  Eq Abr S c Freem S c vern a go upon another reason that be the case of a  infant who everybody know have not a absolute power or ownership in his real  estate until twentyone as he have over his personal estate in his infancy  which may be devise to pay debt or may be distribute in legacy by a infant and  if a young lady who be a minor have a personal estate it may be a mean to  prefer her in marriage at a time when she be not capable of make a settlement  of her land and the distinction have always be between a infant who have not a  absolute command over his real estate and one of full age who have modern  report and that where a infant be entitle to a personal estate and also to a  real one which be encumber with debt and mortgage the court will direct the  personalty to go in discharge of the encumbrance yet it will not order the  mortgage to be assign to attend the inheritance but still to be consider  distinct as personal estate for the benefit of the infant but whatever I have  say in relation to Evan estate in feesimple will fail I in the feetail estate  of one hundred pound ayear that be not comprise in the recovery and wherein he  have no absolute dominion or ownership for as to these feetail land and  proportionable share of the three thousand pound and two hundred pound must be  subsist charge on they and must be raise out of they in the hand of the  remainderman Charles seys for the benefit of Evan executrix and his personal  estate for it can be presume that Evan intend it to sink for the benefit of a  remainderman who be a stranger to he and make no title under he but claim per  form gift of Richard seys the first devisor decree in part that Evan be  consider as a purchaser of the portion of three thousand pound and bind of two  hundred pound by virtue of the marriage article and that have suffer a common  recovery before his marriage of the great part of the devise estate in tail no  more of the say three thousand pound or two hundred pound be raise than be  proportionable to the value of such part of the estate as the say recovery do  not extend to