case John broom ux appellant henry Berkeley and others Respondents that march  Mews dig ten in a marriage settlement land be limit to the husband and wife  for their life remainder to the first and other son in tail and in default of  issue male to trustee to raise pound for daughter Payable at or marriage which  shall first happen and out of the profit to pay pound per and for maintenance  the first payment of the maintenance to commence after the estate of the  trustee shall have come into possession the husband die without issue male  leave the wife and a daughter hold that the portion shall not be raise in the  mother lifetime because the maintenance which be natural to precede the  portion be not to be pay till the trustee be in possession decree of Lord king  c affirm see ante note to can of this title bro p c wms viner vol p note to  can Eq can ab p can and Eq can ab p note to can as to the portion be  transmissible interest by indenture of lease and release date the that and  that of February between George earl of Berkley and Elizabeth countess of  Berkley his wife of the first part the lady Arabella Berkley their daughter of  the second part dr John Tillotson and brown Robert Nelson Esq of the three  part sir James hay and Martin folk Esq of the four part William smith Esq and  the respondent harry coal of the five part dr George Berkley son of the say  earl and countess of the six part and whether coal widow and jane coal her  daughter of the seven part recite inter alian that the manor land etcetera  therein after mention have be convey to the lady Arabella Berkley and her heir  as security for pound and interest redeemable by the earl and his heir and  that the say John Tillotson and Robert Nelson be seize of the equity of  redemption of the say premise for such use and trust as the say Elizabeth  countess of Berkley whether sole or covert by any deed or write under her hand  and seal testify by three or more credible witness shall from time to time  appoint and far recite that a marriage be short intend to he have between the  say George Berkley and jane coal in consideration thereof and of pound be the  marriage portion of the say jane pay by her mother to the lady Arabella  Berkley and for provide a competent jointure for the say jane and for settle  the premise to the use therein after mention the say earl and countess  together with the lady Arabella dr Tillotson and Robert Nelson convey to the  say James hay and Martin folk and their heir the manor and rectory of Lakenham  etcetera in the county of Norfolk to the use of the say George Berkley for his  life without impeachment of waste and after the determination of that estate  to the use of the say William smith and harry coal and their heir for the life  of the say George Berkley upon trust to preserve the contingent use and after  the decease of the say George Berkley to the use of the say jane coal for her  life for her jointure and in bar of dower and brown er p after her death to  the use of the first and every other son and son of the say George on the body  of the say jane lawful issue in tail general and in default of such issue  after a proper limitation to trustee for the use of any son or son wherewith  the say jane may be ensient at the decease of the say George Berkley to the  use of the say William smith and harry coal and their heir for ever upon this  trust that in case the say George Berkley shall have no son or son of the body  of the say jane coal beget or have one or more son or son of her body beget  such son or son shall all die under the age of year without issue and there  shall be one or more daughter or daughter of the say George Berkley on the  body of the say jane coal then that the say William smith and harry coal and  the survivor of they and his heir by and out of the rend issue and profit of  the say manor and premise or by absolute sale or lease of the same or any part  thereof or otherwise as they in their discretion shall think fit shall raise  for such daughter if but one the sum of pound for her portion and pay the same  to such only daughter at her age of year or day of marriage which shall first  happen and also raise for and pay to such only daughter the yearly sum of  pound for her maintenance and education until her say portion shall grow due  the say yearly sum of pound to be pay brown to such daughter by half yearly  payment videlicet Christmas and saint John baptist by equal portion the first  payment thereof to begin and be make at the first of those feast next come or  happen after the estate so limit to the say William smith and harry coal and  their heir shall take effect in possession and if there shall be two such  daughter and no more then in trust to raise pound for their portion to be  equal divide between they and to be pay they at their respective age of or day  of marriage which shall first happen and to pay they pound yearly apiece in  like manner by half yearly payment for their maintenance and education until  their portion shall grow due the first payment to begin and be make at the  first of the say feast next come or happen after the say estate limit to the  say smith and coal shall take effect in possession and if there shall be three  daughter in trust to raise pound to be equal divide between they and to pay  they yearly pound apiece in like manner and to commence at the like time for  their respective maintenance and education until their respective portion  shall grow due and in case there shall be more such daughter than three upon  this further trust that they the say William smith and harry coal and the  survivor of they and his heir shall stand and be seize of the say manor land  etcetera in trust for the benefit of all and every the daughter of the say  George Berkley on the body of the say jane coal to be beget equal to be divide  among they to take as tenant in common and not as joint tenant of the say  trust and of their several and respective heir and assign for ever but in case  the say George Berkley shall have no daughter by the say jane coal then upon  trust for the benefit of the issue of the say George Berkley on any other wife  as therein mention and in case of no issue by a second marriage of the say  George Berkley then in trust for the benefit of such person and for such  estate and use as the say Elizabeth countess of Berkley notwithstanding her  coverture shall by deed or will testify by three or more witness direct and in  default of such direction in trust for the earl and countess and the survivor  of they and the heir and assign of the countess for ever by a memorandum  endorse on the say deed of settlement before the execution thereof a power be  give to dr Berkley in case he leave no issue to charge the premise from the  decease of the say jane his intend wife with any sum not exceed pound for such  use as he think fit to appoint and that after such charge the say smith and  coal and their heir shall stand seize of the say premise after the decease of  the say jane and not before in trust for the raise and pay the same the  marriage take effect and on the that of October dr George Berkley die leave  issue by the say jane coal who survive he only one daughter Elizabeth  Elizabeth countess of Berkley by her will date the that of August after take  notice that the say premise be in jointure to her daughterinlaw late wife of  her son George Berkley brown and be charge with pound for the portion of her  granddaughter Elizabeth Berkley devise the reversion remainder and brown er p  equity of redemption in the same to her son Charles earl of Berkley and his  heir on condition that he pay a debt of pound owe on bind and all her other  debt earl Charles by his will date the that of march devise the premise  expectant upon the death of mrs chaplain the mother of Elizabeth and all his  interest therein unto George Berkley his son and the heir of his body beget  with remainder to the respondent George Berkley in like manner remainder in  fee to the testator grandson William Chamber esquire on the d of march the say  Elizabeth Berkley attain her age of and in April marry the appellant John  broom in Trinity term the appellant exhibit their bill in chancery against the  respondent and the say William Chamber set forth several of the fact before  mention and that the appellant Elizabeth from the time she attain her age of  become well entitle to have the pound raise but that coal the survive trustee  refuse to raise the same and allege he have no authority so to do till the  death of the appellant mother whereas the appellant insist that pound be  direct to be raise and pay at the appellant Elizabeth age of or marriage which  shall first happen and that the reversion of the premise ought to be sell for  the payment thereof with interest from the time it become Payable the  appellant likewise set forth that the respondent Henry and George Berkley and  William Chamber claim title to the premise under the will of the countess of  Berkley and earl Charles have get into their custody the say deed of  settlement and other the title deed of the premise and conceal the same to  disappoint the appellant from have a execution of the say trust and therefore  and in regard the appellant Elizabeth have no other provision they pray that  the respondent coal may be compel to act in the trust and that the other  respondent may set out their title to the premise and that the reversion  thereof expectant on the death of the appellant Elizabeth mother may be decree  to be sell for payment of the say pound portion due at the appellant age of  and all interest for the same the respondent Henry and George Berkley by their  answer to this bill allege that the reversion of the premise expectant on the  death of the appellant Elizabeth mother be devise by the will of their  grandmother Elizabeth countess of Berkley to their late father Charles earl of  Berkley in fee and by his will to the say Henry Berkley and the heir of his  body with remainder to the say George Berkley and the heir of his body  remainder in fee to the say William Chamber and insist that accord to the true  intent and meaning of the say indenture of release the pound ought not to be  raise till after the decease both of the say George Berkley and jane his wife  and that till then the trust estate can brown not take effect in possession  and that no interest ought to be pay for the pound until after the decease of  the appellant mother they also insist that the appellant Elizabeth have other  provision beside what be make by the settlement and which fact be afterward  full prove in the cause on the that of may the cause be hear before the Lord  chancellor king who direct a copy of the limitation in the deed of settlement  and of the memorandum endorse thereon and also a copy of a order in a certain  cause between Sandys and Sandys to be lie before he to consider thereon and  declare that he will desire the assistance of his honour the master of the  roll these copy together with some other precedent be accord lie before the  Lord chancellor and the master of the roll and on the that of November the  cause come on for judgement when his lordship assist by his honour be please  to declare that the appellant come too soon to have this portion raise and  that there appear no cause to give they any relief the bill shall stand  dismiss from this decree the appellant think fit to appeal insist c Talbot t  Lutwyche that their application to have the pound raise and pay by a sale of  the reversion of the premise be not too early but that the same ought to have  be decree to be so raise subject to the estate for life of the jointress with  interest from the time that it become Payable by the settlement and that the  appellant ought also to have have their cost of suit and in support of this  relief it be argue that the word of the settlement be plain and positive as to  this particular of raise the portion videlicet that in case George Berkley  shall have no son of the marriage the trustee in who the reversion in fee  subject to the jointure be brown er p vest shall raise pound for a only  daughter and shall pay the same to her at her age of or marriage which shall  first happen without restrain it to be do till after the death of the mother  that it be high reasonable that this provision in the settlement shall have  its full force and effect because the appellant Elizabeth who be the only  issue of the marriage claim as a purchaser for a valuable consideration under  a settlement make in consideration of marriage and of a portion pay whereas  the respondent claim only under a voluntary disposition and subject to the  portion that if there have be more than three daughter the whole reversion in  fee will have be vest in those daughter and as a provision for they and to be  at their disposal in which case if the appellant Elizabeth have have three  sister she will have have a four part of this reversion in her immediate  disposal even in the mother lifetime whereas now though she be the sole issue  of the marriage she be to have no portion or provision during the mother life  if the construction contend for shall prevail the objection be that by the  settlement the trustee until the portion shall be Payable be to raise pound  per and for the maintenance of a only daughter Payable at Christmas and brown  midsummer the first payment to be make at the first of the say feast next come  after the say estate so limit to the trustee shall take effect in possession  which be not to be till after the mother death and that as the maintenance be  to be pay before and until the portion be Payable this show the intent of the  party to be that the portion of pound also be not to be raise till after her  death but to this it be answer that the reason of make that provision in  relation to the maintenance be because the annual rend and profit be the  proper fund for a annual maintenance and as those rend and profit be limit to  the appellant Elizabeth mother for her life and can not during her life be  receive by the trustee and as it may be inconvenient to raise a maintenance by  sale or mortgage to be make every half year the party to the settlement have  therefore express guard against that inconvenience by neglect the commencement  of those half yearly payment for maintenance till after the mother death but  there be many instance where portion have be raise by sale of reversion in the  lifetime of the tenant for life and the inconvenience on the other side will  be very great if a daughter portion shall not be raise when she most want it  either upon heir attain her age of or for her advancement in marriage and  therefore in this settlement there be no provision which postpone the raise of  the portion long than the time appoint for the payment of it that as the  settlement have make a difference between the two case find upon different  reason it do not follow from in the neglect of the maintenance till after the  death of the mother that the portion shall not be raise if it become Payable  as in fact it do during her life nor be the provision for maintenance thereby  render ineffectual since it may have happen that both the father and mother  have die before the appellant Elizabeth have either attain or be marry in  which case this provision for maintenance will have take place but which in  the present case it can not do accord to any construction of the settlement  and therefore no argument can be draw from the provision about maintenance for  delay the raise of the portion beside there be several precedent in the court  of equity of decree for the sale of reversionary estate for payment of portion  some of which at least come up to the circumstance of this case if they be not  strong on the other side it be contend p York I will that the sale of  reversionary term for raise portion for child in the lifetime of the father or  of a jointress be of pernicious consequence to estate and family and therefore  the court of chancery avoid it as much as possible and never decree it to be  do unless where it appear clear to have be the intention of the party to the  settlement that in the present case the intent of the party appear to the  contrary for it be express appoint by this settlement that the pound per and  for maintenance shall not commence till the first of the feast day next after  the estate limit to the trustee brown shall take effect in possession which be  not till after the death of the jointress that the payment of the maintenance  or interest be not to commence until after the estate take effect in  possession and to continue until the portion shall grow due to be pay and the  time of the portion be grow brown er p due be plain in the apprehension of the  party subsequent to the commencement of the maintenance or interest the deed  ought not to be so construe as that the portion shall be absolute Payable at  the age of notwithstanding the estate for life of the jointress continue when  the maintenance or interest be not to commence until the determination of that  estate for life that earl Charles by pay the debt of the countess may be  consider as a purchaser of the reversion for a valuable consideration but if  the sale pray by the bill shall be make his devisees who be his child will  have very little if any benefit from the reversion it not be at present worth  much more to be sell than the pound and the interest of it and last that there  be no room in this case for a argument which have be sometime urge that the  portion ought to be raise in order that the appellant Elizabeth may be advance  in marriage for she have be many year marry and have a considerable provision  beside the portion now in dispute after hear counsel on this appeal it be  order and adjudge that the same shall be dismiss and the decree therein  complain of affirm jour vol p