atkins case sarah deacon march executrix of the will of joseph smith decease  son and heir of joseph smith his late father decease by marthan his first wife  plaintiff Eleanor smith widow of joseph smith the father and five of his child  defendant SC cite Ves I S covenant to convey and settle house land and  tenement or a rentcharge issue thereout to certain use I S afterward purchase  land but do not make any settlement of they pursuant to the article and  covenant and then die these afterpurchased land shall be to the use of the  settlement so take v Hastings vern Boundel v breare ibidem wilcocks v wilcocks  ibidem Lechmere v Carlisle p W Wilks v Wilks vin bridge v Bere Eq ab Lewis v  hill Ves attorney general v whorwood Ves Sowden v Sowden bro Charles Rep in  easter term Joseph smith the young bring his bill against Eleanor smith the  widow and administratrix of Joseph smith the father and the other defendant  his child by Eleanor for a account and distribution of the father personal  estate and for a discovery of the real estate which he be seize of at his  death and all mortgage c and for a account of rend and to be let into  possession the defendant Eleanor in her answer to that bill set forth that by  deed poll or article of agreement date the that of July between Joseph smith  thefather of the plaintiff of the one part and Francis kidgell the defendant  father of the other smith covenant for he his heir executor and administrator  with the say kidgell c that in consideration of a portion of four hundred  pound the say smith shall and will convey and settle house land and tenement  or a rentcharge issue thereout of the yearly value of forty pound on trustee  to the use of himself for life and afterward to Eleanor for life in bar of  dower remainder to the heir of Joseph smith on the body of Eleanor subject to  a power to charge the estate of forty pound per and with three hundred pound  as a provision for the young child of the marriage Joseph smith the elder at  the time of his marriage with the defendant Eleanor be not seize of any real  estate whereof he can make a settlement pursuant to the article but afterward  purchase a freehold call Cheesemans in east Ilsley in Berkshire of the yearly  value of nine pound and a freehold message at west Ilsley of the yearly value  of forty pound subject to a estate for life of mary smith widow in a undivided  moiety thereof before the last purchase the same estate have be mortgage for  year term to Joseph smith the elder for secure two hundred and fifty pound and  interest the defendant Eleanor insist that her husband purchase the same or so  much as be in possession in order to enable he to perform the article atkins  soon after Joseph smith the father purchase of the estate at west Ilsley he  assign over the mortgage to a person without the defendant join with he for  the remainder of the term of year for secure two hundred and fifty pound and  interest to that person the defendant Eleanor soon after her husband death  obtain letter of administration and with his personal estate pay off the two  hundred and fifty pound and interest to the mortgagee who assign the term to  one Stevens in trust for such person as shall be entitle to the freehold and  inheritance she enter too upon Cheesemans estate and receive the profit and  she and her old son by their answer insist the marriage article shall be carry  into execution and that a settlement be make of the real estate whereof Joseph  smith die seize and in case they shall not be sufficient then other land to be  purchase out of the personal estate sufficient to make up a freehold estate of  the clear yearly value of forty pound and settle pursuant to the article to  the use of the defendant Eleanor for life with remainder to Francis and the  heir of his body as be the old son of the marriage the plaintiff insist that  his father purchase these freehold estate with a intent that the plaintiff  shall inherit they and that the defendant marriage agreement if insist on  ought to be make good out of the personal estate the evidence for the  defendant be that Joseph smith the father say he purchase atkins er p the  estate call Cheesemans with a intent to build a house on part and that the  defendant and his wife shall live there after his death the cause be hear  before the master of the roll the that of June his honour declare that  Cheesemans estate in east Ilsley and so much of the west Ilsley estate as be  in possession at the time of Joseph smith purchase be a undivided moiety ought  to be consider as purchase in part performance of the covenant in the  marriagearticle for make a jointure of forty pound per annum on Eleanor and a  provision for the issue of the marriage and shall be so settle and that the  other moiety of the west Ilsley estate not be in possession at the time of the  purchase be not to be consider as purchase in pursuance of the article but  belong to the plaintiff as heir at law and decree accord and if the Cheesemans  estate and the moiety of the west Ilsley estate be deficient to make good the  covenant in the article the same to be answer out of the intestate personal  estate Reg lib b fol atkins before any further proceed the plaintiff smith die  but by his will have devise to Sarah deacon her heir executor and  administrator all his real and personal estate and appoint her sole executrix  by virtue whereof she become entitle to the benefit of the say suit and stand  in the place of Joseph smith the young with respect to his title and interest  in the real and personal estate of his late father Sarah deacon in Hilary term  bring her bill of revivor and the proceed be order to stand revive the  defendant soon after the hear of the original cause procure the decree to be  sign and enrol and thereby prevent any rehear or appeal against the say decree  which the present plaintiff insist be erroneous and have therefore exhibit her  bill of review to show the decree be erroneous in the follow particular for  that the estate call Cheesemans and so much of the west Ilsley estate in  possession at the time of the purchase do belong and ought to have be decree  to the plaintiff Joseph smith as heir all law to his father that it ought to  have be decree likewise that the rend and profit of such estate shall have be  pay to the plaintiff and the deed deliver up to he and the defendant Eleanor  to procure the mortgage term to be assign to the plaintiff that it ought to  have be decree likewise that the personal estate of Joseph smith the father  shall be apply to make good the whole arrear of forty pound per and from the  time of his death and in the purchase of house land and tenement of pound per  and to be settle to the use in the article she therefore pray that for these  defect in the decree it may be reverse Lord chancellor take some time to  consider and this day give judgement the plaintiff counsel have rely upon two  objection first that here no sufficient act appear to be do by Joseph smith  the elder and covenantor to affect or subject these land to the article second  that it may be prejudicial to purchaser and creditor to construe these land to  be liable to the article atkins as to the first I be of opinion that there are  not sufficient reason to determine that these land be not bind by the article  in all these case the court have go upon the intention of party and have not  require that strictness as in the statute of fraud and perjury and many case  have go so far as to rely upon a strong presumption mere without any positive  evidence what have govern the court be that a man can be no contractor with  his heir or executor for they all derive under his will or permission  therefore that the intention shall be the rule and turn the balance the case  of Lechmere versus Lechmere p W S c the that of may I mention for the sake of  the general ground for there sir Joseph Jekyll lie it down the intention ought  to be the rule agreeable to the judgement of three successive chancellor Lord  summer Lord Cowper and Lord Harcourt Lord Talbot on the rehear lie down the  same rule and say the case upon satisfaction be general between debtor and  creditor and the heir be no creditor but only stand in his ancestor place one  rule of satisfaction be that it depend upon the intent of the party and that  which way soever the intent be that way it must be take but this be to be  understand with some restriction as that the thing intend for a satisfaction  be of the same kind or a great thing in satisfaction of atkins er p a less for  if otherwise this court will compel a man to be just before he be generous and  so will decree both but these question he say be no way material in this case  which turn entire upon Lord Lechmeres intent at the time of the purchase make  Cas in Chan in Lord Talbot time I cite it to show that both the master of the  roll and Lord Talbot who differ to the point only of the feesimple land  purchase since the covenant in opinion as lie down the same general rule as to  the intention therefore I be of opinion it be not material in this case to  require particular act to be do but if there be a sufficient presumption it be  the intention of Joseph smith the elder it shall go accord to the article the  land be bind by the article the second objection be that it may be prejudicial  to purchaser and creditor to construe these land to be liable to the article  atkins I think no purchaser or mortgagee who be a purchaser pro tanto will be  affect for if the husband have sell they or mortgage they it will have be  evidence of a different intention and will therefore have take off all  evidence of his intention to bind they by the article it be say the creditor  by specialty will be affect by it I lie no weight on this for the wife and the  issue of the marriage be creditor by specialty themselves and it be in the  power of the owner of the estate to prefer one specialty creditor to another  for none of they have any specific lie upon the land in the case of roundel  versus breare vern the court be of opinion that the article be a lie on the  land whereof the father be then seize though no particular land be mention in  the article now the objection hold equal strong there with regard to creditor  by specialty and therefore as to this part of the present case the intention  of the husband ought here to prevail if it appear by presumption he mean the  estate shall be bind by the article but another objection have be take that  admit there be such a intention yet there be no sufficient evidence of such  intention first from the nature of the article themselves two thing be rely on  to show that no intention can from the nature of the article appear because  that there be article to convey and settle land and not to purchase second  that here be a option to settle land of per and or a rentcharge out of the  land as to the first I be of opinion it be much too slight a difference in the  present case to distinguish it from Lechmere versus Lechmere every case of  this kind must be take accord to its own circumstance Joseph smith the elder  when he enter into these article have no estate in land at all and consequent  he must purchase land before he can settle they and amount to the same thing  as if the article have be to purchase and settle atkins it have be true say he  may have do it out of land purchase or land descend to he for he be master of  both the first act to be do be to acquire they and then he be to convey and  settle this be too slight therefore to take it out of the case of Lechmere and  Lechmere as to the second thing that here be a option to settle land of pound  per and or a rentcharge out of the land Joseph smith have make no such  settlement and I can presume that he have make the option of that part of the  disjunctive of settle a rentcharge for as he be a debtor and covenantor the  presumption lie that he will settle in such manner as will be the least  burdensome to himself there be evidence in the cause to show that his  intention be to settle the land and not a rentcharge for that he be hear to  say that he intend to build a house on the Cheeseman estate for his wife to  live in provide she survive he I must presume he just before he be generous  and that his meaning be to do what he covenant before he give her any thing  the objection have be carry still further from the nature of the purchase  themselves that the purchase be make by driblet and small parcel that be a  objection which be make in Lechmere versus Lechmere and overrule by the court  as to the Cheeseman estate it be not pretend but that be a proper purchase to  be settle in part satisfaction of the article atkins er p as to the west  Ilsley estate it be say that one moiety be in reversion will descend to his  son and the other can only be affect by the article though the moiety be in  reversion yet there be but one life upon it and therefore it may still be his  intention it shall be bind when it fall in another objection have be take from  the mortgage that it be antecedent to his purchase and assign over to another  person for a valuable consideration it be only continue in effect the same  mortgage upon the estate because he want to take up money to complete the  purchase atkins in Lechmere versus Lechmere the purchase be agree to be make  within ear after the marriage but not make till long after and the covenant be  break can not be say to be a performance of it here this gentleman have his  whole life to perform it in and if Lord Lechmeres purchase have be make within  the year it will have be strong the strong reason in that case be that the  lady be trustee have no notice nor the least pretence that they be advice with  about it in the present there be nothing in my opinion arise from the nature  of the article to take off from the presumption of the husband intention that  the land shall be bind by they and the evidence likewise in this case of his  intention she shall enjoy they for life be a additional fact more than in  Lechmere versus Lechmere the case of take versus Hastings vern be a say only  of the court and dictum in report be not great to be rely on without the state  of the case and therefore I send to the register for the decree which be make  in it do not appear by the book whether the estate of Backwell be purchase  before or after the bind to settle land if after to be sure a very strong case  the other case rely upon be roundel versus breare vern the difference between  the two case be this that here it be to convey and settle land the covenant  there be only to settle land of per and and therefore not so strong as the  present these be the particular case rely upon for these reason and the  authority of these case I be of opinion it will be too hard to reverse the  decree and beside extreme convenient for family that it shall be so determine  the party who be to purchase can buy the whole at once but by parcel atkins  and because he happen to be cut off by death before it be complete to say for  this reason that it shall descend upon the heir at law will make great  confusion in family and therefore the master of the roll have do extreme right  in determine upon what appear to be the intention on presumptive evidence of  that intention and consequent I do affirm the decree Reg lib a fol