case Edward and lady Elizabeth his wife versus countess dowager of Warwick  Lord Macclesfield Eq can ab pl money covenant to be lie out in land shall  descend as land but be that be entitle to the fee of the land when purchase  may dispose of it by a will though not attest by three witness also a parole  direction for the payment of it seem to be good so if the money be order or  devise to be laidout in land and settle to the use of a in tail remainder to  himself in fee equity will order the money to a by if the remainder thereof be  limit to a three person Alsothough by a voluntary contract money be agree to  be lie out in land the court will execrate such agreement in favour of the  heir Edward late earl of Warwick and holland be seize in fee of the manor of  Kensington intermarry with the defendant Charlotte daughter of sir Thomas  Middleton who have a portion of pound pound whereof be pay to the say earl and  pound residue thereof to be lie out in a purchase of land in fee to be settle  as in the settlement and hereafter be mention and the manor of Kensington be  settle on the say earl for life remainder to the first and every other son of  that marriage in tail male remainder to himself in fee as to the pound it be  agree by all the party that the same shall be lie out in land and settle in  like manner as the manor of Kensington have be settle and in the mean time  until such purchase can be find the pound be to be place out upon security and  the interest arise therefrom to go and be pay to such person as shall be  entitle to the rend and profit of the manor of Kensington peer William this  Edward Lord Warwick die leave issue by the countess Charlotte one son  videlicet Edward Henry the last Lord Warwick who be thus entitle to the manor  of Kensington in tail remainder to himself in fee levy a fine of the say manor  to the rise of himself in fee and soon afterward die without issue and  intestate upon who death the manor of Kensington descend to the plaintiff lady  Elizabeth Edward wife of the plaintiff Mr Edward who as she be become entitle  to the manor of Kensington in possession in fee now bring her bill to have the  mortgage upon which the pound have be place out assign to her this be oppose  by the defendant the countess dowager of Warwick who insist that she be  entitle to the same as administratrix of the last earl her son and that this  pound be as yet in itself money ought by the statute of distribution to divide  betwixt herself as the mother of the intestate and his half sister mrs  Charlotte Addison and for this purpose it be argue saint that all the end and  view of the settlement videlicet the provision for the issue of that marriage  be determine by there be no issue leave of the marriage and in regard this be  in fact money a court of equity who assistance be necessary to realize it will  not now the husband be dead without issue turn this money into land in favour  of a heir who be not within the view of the settlement dly that this money  thus agree to be lie out be not in all respect to be take as land for it may  be devise as money by a will not attest by three witness also if the last earl  of Warwick have grant or devise it by the peer William description of the ten  thousand pound agree by his father to be lie out in land it will have pass by  such description it can not be deny but that the last earl may if he have  please have so dispose of it dly that as to the settlement of the remainder of  the Kensington estate to the right heir of earl Edward the father the same be  a more voluntary limitation as be also the agreement that the money shall be  lie out in land and settle in like manner and then it be no more than if one  without any consideration shall covenant to lie out money in the purchase of  land to the use of himself in fee which be a mere voluntary contract equity  will not compel the execution thereof thly that it be unreasonable for this  court to interpose to take the money from the mother and the half sister in  order to give it to a remote relation on the contrary peer William er p the  mother who have the legal interest of this mortgage on which the money be lend  ought to be assist at least not deprive of it by a court of equity thly that  if the last Lord Warwick have apply to the court to be pay the money he will  have obtain a order for that purpose nay though he have not levy the fine but  have continue tenant entail remainder to himself in fee and have desire the  money the court will have order it to he as have be do in the like case see  the case of short and wood vol which Lord chancellor admit in regard the last  Lord bad both the estatetail and the immediate remainder to himself in fee so  that a fine without a recovery will have bar the estatetail and remainder and  a fine may be levy at any time as well in vacation as in term peer William and  last it be urge that the last earl of Warwick have levy a fine of the manor of  Kensington to the use of himself and his heir this have extinguish the  limitation in tall create by the settlement and bad as it be put the  settlement out of the case and as the settlement as to the manor of Kensington  be out of the case so the trust of the pound which be to attend the settlement  of the manor of Kensington be at a end also for all which reason it be insist  that the plaintiff though entitle to the manor of Kensington have not however  any right to the pound or to compel the lie out of this money in land Lord  chancellor if there have be so much as a parole direction from the last Lord  Warwick for the payment of this pound to his mother the countess dowager I  shall have have a regard to it be of opinion that it be in the election of the  last earl to have make this money or to have dispose of it as money say vide  Bradish v gee Amb S c Kenyon as to the late earl levy a fine of the manor of  Kensington that be immaterial for he have as good a power before the fine to  dispose of the say manor or of the pound in money against all but his issue as  he have after the fine and issue he never have to say that this fine as it  comprise the manor of Kensington so do it also the trust of this pound though  it seem absurd to talk of levy a fine of money will do the defendant no  service nay if admit it will make against her because by the deed of use the  use of the fine be declare peer William to be to the conusor and his heir and  consequent will entitle the plaintiff the lady Betty Edward to this money but  when I admit that the last Lord Warwick have a election to make this pound  money still I conceive he must do something to determine such election which  he have not do in the present case and then in a court of equity the heir be  ever prefer to a administrator see the case of Lingen versus Sowray vol this  appear by the common case that if a man die indebt by bind in which he have  bind himself and his heir and leaves real and personal asset of each enough to  pay the bind and the obligee as he have a election to come upon the real asset  do accord sue the heir and recover the debt against the heir yet the heir  shall recover back the money against the executor out of the personal estate  as to the objection that the plaintiff claim under a voluntary limitation it  have be hold that the consideration for the precedent limitation in a marriage  settlement have be apply even to the subsequent one see the case of Osgood  versus stride post as where in consideration of a marriage and portion land  have be settle on the husband for life and then to the wife for life remainder  to the child with remainder to a brother these consideration have extend to  the brother and the reason be because it may be very well intend that the  husband or his parent will not have come into this settlement unless all the  party thereto have agree to the limitation to the brother but admit that the  limitation of the remainder in fee be peer William voluntary yet this will not  alter the case because I take it to be clear that if I voluntary and without  any consideration covenant to lie out money in a purchase of land to be settle  on I and my heir this court will compel the execution of such contract though  mere voluntary for in all case where it be a measure cast betwixt a executor  and a heir the latter shall in equity have the preference though all the  interest due upon this mortgage at the time of the death of the last earl must  go to the countess of Warwick as his administratrix and as I understand his  lordship though the last earl die in a break part of the half year this  interest shall he say not be take as rend but shall be peer William er p  apportion and a proportion thereof go to his administratrix vide ante vol I  jenner v Morgan see also where the court apportion maintenance money in the  case of hey v palmer post but as to all the interest due since the death of  the late earl the same be decree to belong to the plaintiff the lady Betty  Edward the heir and on these term the security for the pound be order to be  assign to the plaintiff the lady Betty Edward and no cost on either side  afterward on a appeal bring by the countess of Warwick this decree be affirm  in the house of lord bro p c and Edward I bro p c this seem the point on which  the case in some measure differ I e whether the mere circumstance of the fund  remain in the shape of money in the hand of the person absolute entitle to it  in all event shall of itself be evidence of the party intention to give it the  quality of personal estate for the case agree that any proof of such intention  will conclude the question Thornton v Hawley Ves triquet v Thornton Ves and  see the case below and if not whether the heir have any equity against the  personal representative in this respect vide Chichester v Bickerstaff vern  Lingen v Sowray ante vol Lechmere v earl of Carlisle post vol and can tempt  Tal Guidot v Guidot atk crabtree v bramble atk bow v earl of Shrewsbury bro p  c and Edward bro p c Bradish v gee Amb S c Kenyon Hewitt v wright I bro c c  Pulteney v earl of Darlington bro c c notwithstanding walker v den Ves jun and  Wheldale v partridge yes as to which last see S c on appeal Ves the late case  have decide that where money have once be impress with the character of land  or vice line the mere circumstance of the fund remain unconverted in the hand  of the person entitle to it in all event be not evidence of his intention to  alter its character and that in such case the heir have a equity against the  personal representative and vice line Biddulph v Biddulph Ves kirkman v mile  Ves van v Barnett Ves Ashby v palmer mere stead v Newdigate mere smith v  Claxton mad Tregonwell v Sydenham dow