case REYNISH versus martin may see in re more Ch d distinguish Hampton v nurse  Ch will SC a mother by her will say that if her daughter marry with the  consent of trustee or the major part of they and signify in write before such  marriage have then I give to her and not otherwise pound and direct m to pay  her pound yearly while she continue sole by pound each may day and all saint  day and charge all her real estate with debt of all kind and legacy the  daughter after the death of the mother marry the plaintiff without the consent  of the trustee and die soon after but before her death the trustee declare  their consent and approbation in write Lord chancellor direct the plaintiff  shall atkins er p be pay the arrear of the pound pro rata till the marriage  and in case the personal estate shall be exhaust by payment of debt so much of  the real estate to be sell as will pay the pound and arrear of the annuity see  Harvey v Aston ante atk Elizabeth Philips by her will the that of October give  and devise unto Martha Philips her old daughter all her real estate to have  and to hold to her and her heir for ever subject to such charge as shall be  therein after express then follow the clause upon which the present question  arise provide always and it be my will if my daughter mary marry by and with  the consent of the trustee therein particular name or the major part of they  and signify in write before such marriage have then and not otherwise I give  and devise unto my say daughter mary the sum of eight hundred pound and it be  my will that my say daughter Martha shall pay unto my say daughter mary the  sum of pound yearly during the say mary continue sole and unmarried by fifteen  pound each may day and all saint day also I do hereby charge all my aforesaid  real estate with all my debt of all kind and with all my legacy the testatrix  die leave issue two daughter Martha and mary mary marry Thomas Reynish the  plaintiff without the consent of the trustee and die soon afterward but before  her death the trustee declare their consent and approbation in write this bill  be bring by Thomas Beynish as the representative and administrator of mary his  wife for a account of the personal estate and that the same may be apply in  payment of the say legacy of eight hundred pound and so much of the arrear of  the annuity of pound per and as be due to mary atkins before her marriage but  in case the personal estate shall not be sufficient that then the real estate  or so much thereof as will make good the deficiency c may be sell and the  money arise therefrom apply for that purpose this case come on to be hear at  the roll the personal estate not be sufficient his honour decree the real  estate to be sell for payment of the legacy and arrear of the annuity the  defendant appeal from this decree and the cause now stand for judgement Lord  chancellor deliver his opinion to this effect as mary marry without the  consent of the trustee their consent or approbation afterward be immaterial  and therefore be not insist upon by the plaintiff counsel because no  subsequent approbation can amount to a performance of the condition or  dispense with a breach of it atk but see Burleton v Humphreys burr Amb SC  mercer v hall bro Charles Rep farmer v Compton Charles Rep the general  question therefore will be whether under the circumstance of this case the  plaintiff as administrator of mary his wife be entitle to this legacy of eight  hundred pound this depend on these consideration first what the event will be  if this legacy of eight hundred pound be consider mere as a personal legacy to  be pay out of the personal estate only second if consider as a charge original  lie upon the land three suppose this legacy to be mere personal what remedy  the plaintiff have in this court or in what manner the same ought to be raise  as to the first I apprehend that take this as a mere personal legacy the  plaintiff by the rule of the civil and ecclesiastical law and which have be  constant adhere to in this court will be entitle to the legacy for it be a  establish rule in the civil law and have long be the doctrine of this court  that where a personal legacy be give to a child on condition of marry with  consent that this be not look on as a condition annex to the legacy but as a  declaration of the testator in terror atkins this rule be so strict adhere to  in the ecclesiastical court that the marry without consent be not consider  there as a breach of the condition although the legacy be actual give over but  that rule have not be carry so far in this court for in many instance here it  have be consider as a breach of the condition and the legacy thereby forfeit  but that differ from the present case because here the legacy be give to mary  only without any limitation over but then it be object that there be a strong  and material difference between a condition precedent and subsequent and this  be a condition precedent and as atkins er p the condition be not perform  nothing vest because the event be not come on which the legacy be to take  effect undoubted this be true in general both in law and equity but I do not  find that the civil or ecclesiastical law have make any distinction between  condition precedent and subsequent but that in both case he condition as such  be mere void Dailey v Desbouverie atk Elton v Elton will Ves S c atk S c this  rule of the ecclesiastical court be strong rely on in the case of Harvey and  Aston t atk but it be the opinion of all the judge who assist in that case  that it be not to be carry so far in this court and the distinction take by  Lord chief baron comens in his argument in that case be extreme right and very  well reconcile the difference vide Com Rep and the reason be because the civil  law consider the condition whether precedent or subsequent as unlawful and  absolute void the legacy stand pure and simple but in our law where the  condition be precedent the legatory take nothing till the condition be perform  and consequent have no right to come and demand the legacy but it be otherwise  where the condition be subsequent for in that case the legatary have a right  and the court will decree he the legacy but this difference only hold where  the legacy be a charge on the real asset and therefore if this have be mere a  personal legacy I shall have be of opinion that as the marriage without  consent will not have preclude mary of her right to this legacy in the  ecclesiastical court no more will it have do so here and to this purpose  several case be cite which be take notice of in the case of Harvey and Aston  and which I shall not repeat but refer to that case for they the next  consideration be what the consequence will be take this legacy as a charge  original lie upon the land and not mere personal atkins but before I enter  upon that point it will be proper to consider how this legacy be give and in  what respect it may be consider as a charge upon the land in the first place  this be certain a personal legacy issue out of the personal estate and  Chargeable upon that fund but then the testatrix afterward at the close of her  will charge all her real estate with all her debt and legacy I will therefore  consider this legacy first as if original charge upon the land second as if it  be not original a charge upon the land but the land charge only as auxiliary  upon a deficiency of the personal estate as to the first if this have be a  legacy original charge on the land I do not apprehend that the plaintiff can  come here to compel trustee to raise the legacy after a breach of the  condition for the legacy be a charge upon the land follow the rule of the  commonlaw and be not cognisable in the spiritual court but where the legacy be  mere personal the court follow the rule of the civil law because personal  legacy be proper cognisable in the ecclesiastical court and equity have always  consider itself as bind to follow the rule of that court to which the  jurisdiction proper belong as in the case of bind creditor they be consider  here as have a priority to simple contract because they have a priority at  commonlaw and the reason be because the jurisdiction original and proper  belong to another forum this court evil not break in but will govern  themselves by those rule which have be establish in that forum to which the  jurisdiction proper belong for the same reason where that e legacy be a charge  upon the land to be raise out of the real estate as the ecclesiastical court  have no jurisdiction it must be govern by the rule of another forum to which  the jurisdiction proper belong this distinction be take by Lord chief baron  hale in the case of fry and porter vide Chan Cas that although in the civil  law in the case of a mere personalty the limitation be void yet this be a  devise of the land not govern by that law atkins estate governable by the  commonlaw of this kingdom without relation to another forum ought not to be  influence by another law and this be a good condition it can be in law defeat  and there be a full breach of the condition as law will not equity can help in  the present case the land may or may not be charge if consider as original  charge the legacy must be govern by the same rule as a devise of the land  itself will have be without relation to the rule of another forum or be  influence by another law atkins er p the case of king versus wither Prec in  canc be a devise of pound to the testator daughter at the age of twentyone or  marriage provide she marry without the consent of the mother then pound part  of the be to cease and be apply towards payment of debt that legacy be charge  and Chargeable on the real estate and therefore my Lord Harcourt say it must  have the same consideration as a devise of land will have and he say the rule  that have be insist on videlicet that where there be no devise over that the  condition shall be take only in terror be a great deal too wide but in that  case the daughter have attain twentyone one of the time appoint his lordship  hold she be entitle to the legacy of pound if the legacy therefore in the  present case be to be consider as a charge original upon the say land it must  have the same consideration as a devise of land will have and in that case  nothing can be clear than that the legacy can not be raise because nothing  vest before the condition perform so hold in king versus wither Harvey and  Aston fry and porter the case which have be cite e contra and come the near to  the present be Chanc Cas Fleming versus waldgrave and Aston versus Aston vern  and the case of Needham versus Vernon report in a book of no authority call  report in Chan in Lord nottingham time fol but all these case turn upon  different consideration from the present and be determine either on the  particular manner of pen the condition or because the condition be subsequent  or for some peculiarity in the limitation of the trust atkins in Fleming  versus waldgrave the condition be in case she marry not contrary to the like  of sir Edward waldgrave and his lady and there certain be material difference  between a condition that the legatary shall not marry without consent and  where it be that she shall not marry against consent the case oh f Aston  versus Aston can not be say to be a decree make by any compulsory power of  this court because the legatary either have or have not a right but although  the portion be decree yet the court require security to refund if the  condition shall be break show the opinion of the court that the breach of the  condition will be a forfeiture thus the case will stand suppose this to be a  legacy original charge on the land but as the real estate be not original  charge but only as auxiliary upon failure of the personalty and the charge on  the land depend upon a condition precedent which never be perform this can be  consider as a legacy charge or Chargeable on the real estate but mere as a  personal legacy Chargeable upon the personalty only and as such to be govern  by the rule of that court which have the proper jurisdiction in such case and  therefore this case differ from Yates versus Fettiplace vern where a legacy of  pound be give charge on the real and personal estate to be pay at or marriage  if marry with consent if not but pound the legatary die at six year of age and  adjudge that the portion shall not be raise for the benefit of her  administratrix and very right because in that case have the legacy vest and it  have be charge on the personalty only it will have be transmissible but be  original a charge upon the land and the legatary die before the day of  payment it become a lapse legacy to sink in the inheritance for the benefit of  the heir and that be now a constant rule in equity establish so long ago as  the case of Jennings versus rook Jennings v look p W S c and the legacy in the  present case depend upon a condition precedent never vest so far as respect  the real estate but the land not be original charge but only liable to be so  upon performance of the condition I be of opinion this case must be consider  as a mere personal legacy and as such to be govern by the rule of the civil  and ecclesiastical law vide prowse v Abingdon atk the three consideration  therefore will be what remedy the plaintiff will be entitle to in this court  and in regard to that he be certain entitle to a account of the personal  estate but as that may be exhaust by the payment of debt and legacy the next  question will be whether this court can marshal the asset in such a manner as  to give the plaintiff a remedy out of the real estate for as the real estate  be express charge with atkins the payment of all debt and legacy and this  legacy by the event which have happen fall out to be a charge upon the  personalty only I be of opinion that the plaintiff ought to stand in the place  of such creditor or legatee as have receive a satisfaction out of the personal  asset and to order it so be the constant rule and practice of this court  atkins er p there be another question in respect to the annuity of thirty  pound videlicet whether the plaintiff be entitle to the arrear pro rata due to  mary before marriage she marry before the last half year payment become due  and although this annuity or halfyearly payment be not express give for the  maintenance of mary as in the case of hay versus palmer vern yet I be clear of  opinion that it must be understand so and therefore fall within the reason of  that case upon the whole I must direct that the plaintiff be pay the arrear of  the thirty pound per and pro rata till the time of the marriage and in case  the personal estate shall ten exhaust by payment of debt or other legacy that  the plaintiff shall stand in the place of such creditor and legatee pro tanto  as have receive satisfaction and that so much of the real estate be sell as  will be sufficient to satisfy this legacy of eight hundred pound and arrear of  the annuity note and shall receive a satisfaction pro tanto out of the real  estate and out of the money to arise by a sale of a competent part thereof the  plaintiff shall be pay so much of say legacy of pound and interest as such  part of the personal estate as shall have be exhaust in payment of say debt  and legacy will amount to Reg lib b fol