boil and other v boil and another the statement of this case be take from Lord  hardwicke notebook the judgement from atkins and grave v boil and other and  nicholas and other v boil and other may that and that atk sir S Garth have by  his bind give pound at his death among all the young child of his daughter by  will direct that the rend and profit of his estate shall be pay to they until  certain period in his will mention and give the produce of his personal estate  to his daughter for life and after her death to pay pound to one of her child  and pound among her other young child as she shall appoint and in default of  appointment equal among they to daughter at eighteen year of age or marriage  to son at twentyone and declare that the legacy of pound and pound be in full  discharge of the bind hold that a party must elect to claim under the bind or  will but can claim under both where a particular thing be give by will in  discharge of a demand and the party insist upon it he must not only waive that  particular thing but all benefit claim under the whole will See noise v  mordant vern Streatfield v Streatfield can tempt Talb Kitson v Kitson Prec in  Ch coke v hellier Ves Boughton v Boughton Ves cull v Showell Amb highway v  banner bro c c Lewis v king bro c c hoar v barn bro c c finch v finch bro c c  Stratton v best Ves jun whistler v Webster Ves jun Wilson v townsend Ves jun  Wilson v mount Ves rutter v Maclean Ves Blount v Bestland Ves web v Lord  Shaftesbury Ves more v butler Sch Lef Birmingham v Kirwan Sch Lef Sheddon v  Goodrich Ves rich v cockle Ves Welby v Welby Ves Bea green v green mere  Tibbits v Tibbits ib note Lord Rancliffe v parkins dow Dillon v Parker swan  Gretton v Haward ib whether forfeiture or compensation be the effect of a  election to take against a instrument see Mr Swanstons learned note upon this  subject in Gretton v Haward swan sir Samuel Garth on the saint of December  have enter into a bind to leave at his death pound among the young child of  Martha boil by his west tempt Hardwicke will of the that of may devise certain  estate to trustee for a term of twentyone year if Henry boil so long live upon  trust to pay the rend and profit equal among all the daughter and young son of  the say Martha boil live at the say testator death or bear afterward till  Henry boil attain his age of eighteen year and after he have attain that age  then to pay Henry boil pound west tempt Hardwicke er p per annum till his age  of twentyone year and till such age to pay and apply the residue of such rend  and profit to and among Martha boil young son and daughter equal and after he  attain his age of twentyone year or if he die before that age then the term be  to cease and after the determination or soon expiration of the say term he  devise the say estate to Henry boil for life remainder to his first and other  son in tail male remainder to the first and other son of Martha boil in tail  male with remainder over and he give all his personal estate in trust to pay  the interest to Martha boil for her life and after her death he give to  beaufoy boil pound at her age of eighteen year or on her marriage and to and  among the young son and daughter of Martha boil pound in such share as she  shall appoint and in default of appointment then equal among all her child  except Henry boil to be pay to daughter at eighteen year of age or marriage to  son at twentyone and the say testator declare that the pound and pound legacy  be in full discharge of a bind date the saint of December give to Henry and  William boil in pound penalty for leave pound among Martha boil young child at  his death and he give all the residue of his estate to Martha boil west tempt  Hardwicke the first mention cause be a rehear and appeal from a decree of the  master of the roll who have decree the bind of sir Samuel Garth not be put in  issue in that cause that Martha boil shall receive the interest of the pound  for her life that after her death the pound shall be pay among the child  accord to the direction in sir Samuel garth will and that a certain part of  the profit of the testator real estate shall be place out at interest for the  benefit of Elizabeth grave the bind be deposit by the testator for safe  custody in the hand of mrs Martha boil who admit by her answer that she have  cancel the bind apprehend that it be of no use after the will be make  Elizabeth boil have intermarry with Matthew grave Harriott boil with William  Nicholas and beaufoy boil with John wile be the daughter and Robert boil be a  young son of Martha boil claim to be entitle to a share both of the pound  under the bind and of the rend and profit devise to they by the will of sir  Samuel Garth the attorneygeneral Mr Chute Mr brown and Mr Pilsworth for grave  and his wife Mr Noel Mr Fenwick and Mr Wilbraham for Martha boil and sir I  Rushout Mr booth and Mr green for Nicholas and his wife and Robert boil Mr  Floyer for wile and his wife may Lord chancellor at the hear of the cause have  declare that the plaintiff Elizabeth grave may choose to claim either under  the will or under the bind but if she claim under the bind she must take no  benefit at all under the will but next day conceive a doubt on account of the  devise be of a real estate and the bind be a personal debt give order to be  attend with precedent and this day deliver his opinion in support of his  former decree and mention the case of Jenkins v Jenkins Nov that before Lord  Talbot as a case in point where a particular thing be give in discharge of a  demand the party insist on his demand it be decree he shall waive not only  that particular thing but all benefit which he claim under the whole will the  case of shepherd v Philips at the roll Dec the that be determine on a similar  point but at the same time the chancellor take notice that in the present case  the devise be express west tempt Hardwicke to be in satisfaction of the bind  and when he give order to be attend with precedent he will not extend the  construction of devise in satisfaction far than they have already go the  follow note appear in Lord hardwicke notebook decree vary as to the interest  of plaintiff grave and his wife share of the pound and also as to their share  of the profit of the testator real estate which be only give by the will  plaintiff grave and his wife ought not to have in respect of their claim the  pound under the bind in contradiction to the will afterward conceive some  doubt as to exclude plaintiff from their share of the profit of the real  estate but satisfy on search of precedent particular in the case of Jenkins v  Jenkins and affirm the direction west tempt Hardwicke his lordship direct the  decree of the master of the roll to be vary and declare that the plaintiff  grave and his wife elect to claim by virtue of the say west tempt Hardwicke er  p bind contrary to the disposition make by sir Samuel garth will ought not to  take any benefit by the devise of the rend and profit of the real estate and  he decree upon the evidence in the cause that the sum of pound arise from the  say bind be equal divide among all the young child of Martha boil whether bear  before or after the death of sir Samuel Garth Reg lib a foe the follow case of  Jenkins v Jenkins be take from Lord hardwicke paper be correct by Lord  Hardwicke in his own handwriting that November on appeal from the roll case be  David Lewis by will in give to his granddaughter Ann Jenkins pound to be pay  her within five year after his death and to his other four grandchild pound  apiece whereof plaintiff be one to be pay they within five year after his  death and no interest to the time of payment and in case either of the say  child shall die before time of payment his or her legacy shall go among the  other brother and sister of the whole blood share and share alike and make his  soninlaw Thomas Jenkins executor and die Ann Jenkins the granddaughter die  within five year after the testator and after the death of Ann and before the  five year expire defendant another grandchild be bear Thomas Jenkins the  executor lie out for plaintiff his old son pound to put he out apprentice and  maintain he in his infancy in Thomas Jenkins make his will and devise among  other thing in these word whereas I be executor to my late father David Lewis  who by his will give my son Thomas Jenkins pound and there be also due to he  on the death of his late sister Ann Jenkins pound which I be by the say will  oblige to pay I do therefore in discharge of my say executorship and out of  affection to my say son give he the say pound notwithstanding I pay he pound  to put he apprentice and maintain he and I give the interest of the say pound  to my executor his other son defendant in satisfaction of the money I have so  disburse for my son Thomas and in another part of the will give his son Thomas  plaintiff a debt due to he the testator from one prince about pound and a  close of land to Thomas and his heir worth about pound and make defendant  Benjamin Jenkins executor and residuary legatee plaintiff Thomas Jenkins bring  his bill and that of February master of the roll of opinion and decree that  defendant who be bear after the death of the testator Lewis and before the say  legacy of pound become Payable be entitle to a equal share thereof with the  other child of Eleanor Jenkins and that plaintiff be entitle to interest for  his share thereof be the sum of pound and for his say legacy of pound as well  as to the principal sum and that he be likewise entitle to the land and money  devise by his father will defendant appeal and insist first that plaintiff  ought to abide by the will throughout and ought not to insist upon the pound  as a debt and the pound and other legacy when it be express declare by the  will that it be intend by testator in satisfaction and defendant counsel cite  the case of noise v mordant vern ndly that plaintiff ought to allow for the  pound and maintenance Lord chancellor as to the first point plaintiff must  abide by the will in toto or west tempt Hardwicke er p not at all accord to  the case of noise v mordant a difference be then offer where a personal legacy  be only give in satisfaction of a personal demand and where land beside be  give as in this case but by Lord chancellor non allocatur for the intent of  the testator be entire and the whole be his will and must be submit to entire  or not at all and therefore he decree plaintiff to have five week to make his  election whether to abide by the will or not and plaintiff afterward elect not  to abide by the will he be decree to have satisfaction for the legacy of pound  and pound his share of his sister Ann legacy under the will of David Lewis  with interest at pound per cent from five year after David Lewis death and to  convey to the defendant the close of land devise to he the plaintiff by his  father will and to account for the profit she have receive as to the other  point about the maintenance in regard this pound be all the provision  plaintiff have who be the old son and the father as be prove have a estate in  land about pound per annum and pound in money and as be prove by one witness  have declare he will pay the plaintiff the interest for his pound his lordship  think it too hard in such case for his father or his executor to deduct the  interest of the pound which be but pound S per annum and therefore interest be  decree to be pay for the pound for five year after the death of testator David  Lewis