c yate v FETTIPLACE S c Prec in Charles vern Eq can ab Lord raym Mod Lord  keeper master of the roll sir Roland Lacy have mortgage part of his estate to  colonel Heiton for year for secure pound make a settlement of his estate to  himself for life remainder to his son and the heir of his body remainder to  his own right heir and afterward make his will and thereby give his daughter  Arabella pound for her portion if she marry with the consent of her mother  otherwise but pound to be pay at her marriage freeman er p or age of twentyone  and appoint that the mortgage term shall be keep on foot for the better raise  of the legacy Arabella die at the age of six year the lady Lacy her mother  take out administration and marry Mr Yates the plaintiff and afterward make  her will and Mr Yates the executor thereof who take also letter of  administration to the say Arabella and the sole question be whether Mr Yates  as administrator to Arabella be entitle to the say pound or any part thereof  or whether the legacy be sink for the benefit of the heir Arabella die before  twentyone or marriage and they understand the Lord keeper and the master of  the roll both agree that this legacy be sink for the benefit of the heir it be  by the say will to be raise out of and in as much as he appoint the mortgage  term of year to be keep on foot for raise of his legacy and freeman since my  Lord Pawletts case ante c p see the note there it have be the constant  practice of this court that where a legacy or portion by will or deed be  appoint to be raise out of the land there if the party die before it be  Payable it shall sink for the benefit of the heir and although the mortgage  lease out of which it be to be raise be but a term for year yet it be not a  term in gross but a term attendant upon the inheritance after the debt pay and  the trust perform if it have be a term in gross it have be a chattel and  personal estate but it be not so here See as to the distinction between a term  in gross and a term to attend the inheritance maundrell v maundrell Ves it be  agree that a legacy out of land be not recoverable in the ecclesiastical court  no more than they can sue there for any trust concern land which they have no  power over Desbunnet v Ferbanque palm bastard v Stockwell show love v  Naplesden cro James and the Lord keeper hold if this have be a legacy to be  pay out of the personal estate the plaintiff can have have no title to it  because it be give upon a contingency which not happen in the lifetime of the  legatee be never vest in her and so can not go to the administrator for she  never marry nor come to the age of twentyone and this be a condition precedent  and all one as if he have say if my daughter marry with consent of my wife I  give her pound see ante c p the reason why a legacy or portion charge upon  land shall sink in the estate for the benefit of the heir where the party die  before it become Payable pierce v Loman Ves Phipps v Lord Mulgrave ibidem  Harrison v nailer Cox can and ought not to do so when it be charge upon the  personal estate be because the heir be more favour at law and in this court  than a executor or administrator and because the heir be look upon to be the  stay of the family and the support of it when a executor or administrator be  sometime a mere stranger to the family as in this case if a legacy be give to  a young girl when she marry and she marry before she be man powerful she shall  not have it for it must be intend a complete marriage and the Lord keeper say  he see no reason for the difference which be common make between a legacy give  to a to be pay when she shall come to the age of twenty one and a legacy give  to her when she shall come to age for he say it seem very absurd to make two  different construction when it can be think but the testator must mean the  same thing Mackell v winter Ves hanson v Graham Ves where the observation in  the text be cite the distinction though at least a refinement be now well  establish and although it be here insist upon that this portion be charge to  be raise out of the mortgage term which be a freeman chattel and by  consequence testamentary yet it be answer that it be not a term in gross but  when the debt and portion be pay be attendant upon the inheritance and such a  term be not forfeit as a personal estate or chattel in gross is We learn from  the report of this case in Prec in cham where above that the plaintiff appeal  to the house of lord and that the decree be there affirm Reg lib b fol this  cause be first hear before Lord summer and his decree be affirm on a rehear  before wright c S assist by the master of the roll as above report freeman er  p