case la noy against the duchess OF athol in chancery Michaelmas term Geo refer  to Sykes v meynal dick Averall v wade Ll g Sug distinguish barn v Rackster you  c c c discuss bugden v Bignold you c c c Loosemore v Knapman key Gibson v  seagrim Beav approve flint v Howard Ch S c atk Mr la Noy upon his marriage  with jane Frederick now duchess of Athol and mother of the plaintiff by  indenture date the twentyeighth and twentyninth of January settle his estate  in Hammersmith and Fulham to the use of himself for life and after his decease  to the intent that jane may have a rentcharge of five hundred pound ayear in  lieu of dower remainder to be heir male remainder to Mr la Noy in fee in this  settlement Mr la Noy covenant that if jane shall survive he his heir executor  or administrator will pay her the say five hundred pound ayear after the  marriage Mr la Noy surrender some copyhold estate to the use of his will and  in bequeathe the residue and remainder of all and singular his estate both  real and personal whole and sole after pay his just debt unto the defendant  jane and appoint her sole executrix but in case he shall leave any issue male  by the say jane then he give to such issue his estate at Hammersmith freehold  copyhold and leasehold he pay to his mother five hundred pound ayear but if he  leave only a daughter then his wife shall pay her when she marry if it be with  her mother co send six thousand pound by indenture date the twentyfirst of  October recite that Mr la Noy in right of his wife be entitle by her father  death to a large sum of money be in consideration thereof covenant to levy a  fine of the estate comprise in the indenture of the twentyeighth and  twentyninth of January to the use of himself for life and after his decease to  modern report secure the say jane the say rentcharge of five hundred pound for  life in bar of dower remainder to trustee for a term remainder to the first  and other son in tail male remainder to the heir of the body of Mr la Noy  remainder to himself in fee the trust of the term be to raise six thousand  pound for daughter portion if no issue male and maintenance at the rate of  eighty pound ayear Mr la Noy die leave the plaintiff his daughter and only  child jane marry the duke of Athol upon hear this cause Lord Hardwicke declare  that the settlement in be a revocation of the will as to the freehold and  leasehold estate comprise in that settlement and as to the legacy of six  thousand pound bequeathe to the plaintiff but as to all freehold and copyhold  land not comprise in the say settlement the same belong to jane and her heir  by virtue of the say will and his lordship decree that the defendant jane  shall come to a account for the rend and profit of the premise comprise in the  settlement of since the testator death and the say defendant be in the first  place out of the rend and profit to deduct and retain to her own use five  hundred pound ayear and in the next place she be to deduct two hundred and  ninetythree pound for fine and charge of renew the leasehold estate and also  to retain eighty pound ayear for the maintenance of the plaintiff and the say  defendant jane be to account annual for the rend and profit and to make the  like reduction the plaintiff petition for a rehear show that account have be  take by modern report er p the master since the decree and he have make his  report whereby it be state that the rend and profit have be yearly deficient  to answer the say five hundred pound ayear the say eighty pound ayear and the  fine so that there be a balance due to the defendant of three thousand nine  hundred and thirtyseven pound which they be to retain out of the next rend and  profit and in consequence of this if the defendant jane be to live a few year  long and such arrear be consider as a charge upon the freehold and leasehold  estate the plaintiff will be deprive of her portion of six thousand pound and  also of her inheritance Hardwicke Lord chancellor this cause come to be  reheard after a great length of time but that be no objection here because at  the original hear miss la Noy be a infant about three year of age and have but  late attain her age of twentyone and come in time to complain if she be  aggrieve by that decree it have be mention that it appear by the proceed in  the cause that there be a surprise upon the court all the fact riot be  sufficient state in the plead but that objection ought to be lie out of the  case for I have read over the decree in which the plead be recite and it there  appear that the material point in the cause and all that the party can then  foresee be put in issue for the judgement of the court the two settlement be  true state except as to the covenant for payment of the rentcharge of five  hundred pound ayear and I can modern report impute that omission to any design  because it be probable there may be no occasion or reason to make use of that  covenant and therefore it be not state in the bill the will of Mr la Noy be  also set forth and the great point as to the stock and annuity which stand in  the joint name of the husband and wife at the time of the death of the husband  be not only state in the bill but also insist upon by the duchess answer with  this further that the plead do not represent the case as if the estate will in  all event answer the annuity of five hundred pound ayear and all other charge  upon it because mrs la Noy express state deficiency in her answer therefore no  design to prejudice the interest of the infant but if anything have be omit  though without design or if the court have err in judgement the plaintiff miss  la Noy be entitle to have the decree rectify and to be relieve the objection  against the decree be first that there be a direction give in it for the  payment of five hundred pound ayear for mrs la noise jointure as also of  eighty pound for miss la noise maintenance out of Mr la noise real estate  whereas the real estate fall much short of do this for though it be recite in  the settlement to be a thousand pound ayear it be in reality no more than four  hundred pound therefore miss la Noy the plaintiff be entitle as heir to her  father to have her inheritance exonerate and the five hundred pound ayear and  eighty pound ayear maintenance consider as debt and to be turn first upon the  personal estate of Mr la Noy and if that be deficient then upon the copyhold  estate devise by he subject to the payment of his debt and this because there  be a covenant in the settlement that in case his wife survive he his heir  executor or administrator shall pay to her for her life the five hundred pound  ayear without deduction except for landtax and that therefore this make the  five hundred pound ayear a debt upon the personal estate so as it ought to be  satisfy in the first place out of that as to the five hundred pound ayear the  objection be carry too far though there be one kind of relief which I will  mention just now for though there be a covenant of such sort as bind the  person as well as his land yet it be true say by the counsel for the defendant  that the personalty be not the original fund Chargeable with this annuity a  Burgoyne v fox atk Galton v Hancock atk Coventry v Coventry Peer wms Edward v  freeman Peer wms Evelyn v Evelyn Peer wms a and in that respect it differ from  mortgage or other encumbrance upon estate for if a man borrow money and make a  mortgage with a personal covenant for the payment of the money and also give a  bind at the same time there be in this case borrow and lend that which be the  most natural fund for payment of debt shall be first apply modern report which  be the personal estate and the mortgage be no more than a security a cope v  cope salk Meynell v Howard Prec Ch king v king Peer wms atk Tankerville v  Fawcett brown c c ware v Dudley brown c c billinghurst v walker brown c c a  modern report er p but this application of the personal estate be never carry  so far as to pay provision for wife or child Chargeable upon land because the  land be the primary or original fund and whoever take the estate must take it  subject to such lie therefore upon the settlement in in consideration of  marriage which be a good consideration b ex part marsh atk brown v Jones atk b  Mr la Noy settle a real estate of the value of one thousand pound per annum as  he recite it upon himself for life with a rentcharge of five hundred pound  ayear to his wife for a jointure and subject thereto to the heir male of his  body general with remainder to his own right heir upon this first settlement  miss la Noy shall take this estate only as right heir to her father and as  such have no right to come against the personal estate and out of that to  disencumber the real estate of a debt bring upon it by these very settlement  under which she take suppose there have be a son and he have take it by virtue  of the limitation to the heir male of the body of Mr la Noy and so have take  per form gift be can not disencumber it out of the personal estate because he  take it under the very settlement subject to the mother annuity which be  original charge upon the estate itself and it be so in all case of portion for  young child as if a man settle his estate for life remainder to his wife for a  jointure remainder to trustee for five hundred year for young child portion  remainder to his first and other son in tail male the old son can come against  the personal estate to discharge his inheritance out of it and there never be  a decree for be must take it charge therefore the plaintiff upon this part of  the case can be entitle to throw the annuity upon the personal estate in  discharge of the inheritance especial upon the first settlement upon the  second there be no recital of the value of Mr la noise estate but in  consideration of the subsequent fortune which come to the wife by the death of  the father as a share of his personal estate the husband levy a fine to  destroy the use of the former settlement and make a new one to himself for  life then to the intent that his wife may receive five hundred pound ayear for  her life as a jointure then for a term of two hundred year to raise portion  for daughter videlicet of six thousand pound in case there shall be a son or  in case there shall be only daughter and no son with remainder to the heir of  his own body with a remainder to his own right heir upon this settlement miss  la Noy have no title to exonerate the real estate of this jointure of five  hundred pound ayear by throw it upon the personal estate because she modern  report do not take as a purchaser by virtue of the use of this  marriagesettlement for in the first place it be a settlement after marriage  and last there be no covenant in regard to the inheritance to discharge it of  this annuity and as to the inheritance of the estate itself she take it under  a general limitation to the heir of the body of the father and if mrs la Noy  have die leave issue a daughter and after Mr la Noy have marry again and have  issue a son the other son will have take the estate before her which show she  do not take as a purchaser under this marriage but I be of opinion upon this  second settlement that there be a equity in miss la Noy the plaintiff to turn  the duchess of Athol in some degree upon the personal estate of Mr la Noy and  that in relation to six thousand pound provide by the second settlement for  daughter portion she shall stand as to the personal estate in the place of the  duchess of Athol her mother and be satisfy out of that as to this six thousand  pound she take it as the only daughter of the marriage either as a purchaser  of it by virtue of that consideration accrueing to the father by the accession  of the fortune of the mother or lie that out of the case she be a child claim  a provision and therefore in this court in the nature of a creditor if that be  so what will be the effect in a court of equity in take the account there  appear to be a great deficiency of near four thousand pound which as have be  observe must run on as a burden upon the ensue profit and upon the inheritance  with interest so that if the duchess shall live to grow old nay only to arrive  to a natural age it will exhaust the inheritance itself and so the six  thousand modern report er p pound can never be raise because the annuity be  prior to it and have swallow up the estate which be the fund for it therefore  it be incumbent upon the court as far as it can to preserve both right the  duchess have two fund for her jointure the real estate and a covenant for the  payment of it by Mr la Noy his executor administrator or assign which raise a  charge upon the personal estate and it be the constant course of this court if  there be two creditor one have a double fund for his security and the other  only a single one to turn the former to take his satisfaction out of that fund  in the first place which the latter have no right to come upon that the  security of the other may be as little prejudice as possible suppose a man  seize of two real estate make a mortgage of both to one person to secure the  sum of a thousand pound and afterward make a second mortgage of one of those  real estate only to another who have no notice of the former mortgage in this  case the first mortgagee shall be compel in the first place to take his  satisfaction out of that real estate which be not comprise in the second  mortgage in order that the second mortgagee may have his full benefit of the  estate include in his mortgage and this though these two estate may descend  into different hand or to be settle different way modern report and I be of  opinion that the plaintiff miss la Noy to secure her own six thousand pound  and her maintenance of eighty pound ayear as they be charge upon the same fund  with which the duchess be a creditor and prior to miss la Noy have a right to  turn the duchess who have a double fund for her security upon the personal  estate or upon the copyhold estate devise for payment of debt and that as to  the six thousand pound and maintenance she shall stand in the place of the  duchess and have her satisfaction out of the real estate the case I have  mention and several other case be proof of it there be also a strong case to  this purpose in vern reeve v reeve and the same case in vent where sir Richard  reeve charge his land in b with a portion of three thousand pound for his  daughter by a former venture and then marry a second wife and make her a  jointure of half the land at b without take notice of the charge of three  thousand pound and afterward think the portion will defeat the jointure in b  take notice thereof and devise to his wife other land in d in lieu of her  jointure in b and die she and the son and heir agree together to defeat the  daughter of her three thousand pound and therefore the wife find that the  settlement which be make on her marriage though subsequent in time will  prevail against the three thousand pound charge which be voluntary and  fraudulent as to her adhere to her jointure and refuse to accept the devise  and the daughter bill be to be relieve and the Lord keeper decree that the  plaintiff shall hold such part of the land in d as shall be equal in value to  such of the land in b as be comprise within the jointure until her portion be  raise now this be put the daughter in the place of the mother so far and it be  strong than the present for the charge there for the daughter be only  voluntary and not for a valuable consideration as here and the decree there be  upon the same foundation as here which be to preserve the right of both party  the next question relate to the eighty pound ayear maintenance for miss la Noy  and as to that there be no ground as it stand original upon the foot of the  settlement to say that it can be a charge upon the personal estate for there  be personal covenant for the payment of it but the maintenance will stand upon  the same foundation as the portion which be that the fund not be sufficient  for both and the mother have a right to come upon the personal estate the  daughter shall pro tanto stand in her place it have be object that the mother  ought not to have this whole eighty pound ayear for the maintenance of her  daughter especial in her tender year when she can not be suppose to lie out  half so much upon her and that by the law of nature she ought to maintain her  out of her own estate but this be carry the point too far and the mother must  have the eighty pound ayear because she have maintain her child in case where  a modern report legacy be give to a child for a portion and not make Payable  till twentyone and no expression in the will for it to bear interest in the  mean time the mother even there shall not be oblige out of her own bounty to  maintain her child but this court will construe the legacy to bear modern  report er p interest upon the presumption that as the testator intend it as a  portion he must necessary intend it to bear interest otherwise the poor child  in all likelihood will starve in the mean time the utmost that the court do in  case of maintenance be where there be a large estate which come to a elder son  and there be no provision for daughter or young child the court will order a  large provision for such elder brother that the child may have a maintenance  out of that upon a presumption that if the elder brother be at age he will be  the housekeeper of the family and will make his young brother and sister  welcome as his lordship express it to a run in his kitchen as to the question  relate to the stock stand in the joint name of the husband and wife at the  time of the death of Mr la Noy the husband the case be thus Mr la Noy marry  mrs Frederick the present duchess of Athol when she have no portion and in  consideration of marriage make her a jointure of five hundred pound ayear  after the marriage by the death of Mr Frederick her father who by a decree in  this court be construe to be a freeman of London she become entitle to a five  share of the orphanage part of his personal estate which share this court  order to be transfer to mrs la Noy and not to the husband but however the  stock to the amount of fifteen thousand pound be transfer to they in their  joint name by this the husband have a power over the stock so as to reduce it  into possession but as it be a choose in action and he have not alter the  nature of it by his death the wife have a double claim the one as it be a  choose in action in her right unreduced it will belong to her and not the  personal representative of her husband the other that as it be in their joint  name she take it by survivor this to be sure will be the law if nothing  further have be do but the case do not rest here for after the augmentation of  fortune in right of the wife Mr la Noy make a second settlement wherein he  recite that mrs la Noy be entitle to long annuity and other personal estate of  her father to the amount of fifteen thousand pound and that he in right of his  wife become entitle to they in consideration whereof be revoke the use of the  former settlement and as a augmentation thereof settle the long annuity of  three hundred pound ayear to her for life also remainder to his first and  every other son in tail male c subject to a term to raise six thousand pound  as a portion for young child after this settlement Mr la Noy die in the  lifetime of his wife leave these joint stock untransferred and unaltered so  that in point of law they vest in the wife by survivor but the plaintiff  insist and the same point be insist upon for her at the original hear before  Lord king that though they be survive to the wife at law yet she be to be  consider only as trustee of they for the benefit of the personal modern report  representative of the husband who be become purchaser of they and of all the  wife fortune by the last settlement make by the husband in consideration of  her accessional fortune I have at first some doubt upon this head but upon  look into the case I be of opinion that I can carry this doctrine so far as  the plaintiff insist videlicet to have these stock consider as part of the  personal estate of the husband and to take they from the wife there have be  several case where a wife have be entitle to a portion and before marriage the  wife be of age upon agreement with her or the wife be under age with the  consent and agreement of her father trustee or guardian the husband have make  a settlement upon her in consideration of or previous to such marriage and in  consideration of her portion which consist in choose in action and the husband  have die without reduce they into possession this court have decree in favour  of his representative against the wife much more will it do so in favour of  creditor for the increase of the husband personal estate and this have go so  far that where the settlement make by the husband can not be say to be a  adequate one to the wife fortune yet as it have be the agreement of the party  and the portion have be the motive of the settlement the representative of the  husband have be decree the portion against the wife but all these case be of  settlement or article before marriage for valuable consideration and not where  they have be either voluntary or the wife under coverture and in the general  case the settlement have not be adequate to the fortune and that expression be  only make modern report er p use of where the general doctrine be lie down and  where you examine strict the case the settlement have not be adequate and yet  the settlement have prevail so far as to make the wife a trustee of her own  choose in action in favour of the husband representative the present  settlement be upon a very great accession of fortune make after marriage and  during the coverture and if this settlement be to be try by the rule lie down  of its be a adequate one it be plain it be not for the husband settle nothing  new but only a provision of six thousand pound for daughter the land settle be  bare the land settle before the jointure of the wife be only increase by three  hundred pound ayear out of long annuity only which be her own estate this be  indeed a provision but do not come within the meaning of this rule when the  court say the settlement be to be adequate but that be not the thing I rest  upon for this be a voluntary settlement and after marriage and therefore no  contract which be bind upon the wife she be a feme covert and unable to  contract and there be no person father or other trustee to contract for her  the mother indeed be party to the settlement but she have no power to agree  for her if this settlement have come before this court it will have go before  the master to have receive proposal for such a settlement and she may have be  examine in court or before the master to express her consent to the settlement  and to the husband have her fortune in the same way as a woman who be marry be  examine apart upon her levy a fine modern report now this way the wife may  have be bind by the settlement a Willats v Cay atk Oldham v Hugh atk milner v  Colmer Peer wms Fraser v Baillie brown c c Minet v hide brown c c Dimmock v  Atkinson brown c c a and the husband representative entitle to these choose in  action but to say she be bind by this settlement by which she take nothing  except out of her own portion without the intervention of this court be carry  it further than any of the case if you look into the case of Adam v coal b Eq  Abr case tempt Talb b which be the strong that can be mention the provision  there indeed make for the wife be not adequate but it be a agreement before  marriage and also a bind give by the husband in consideration of marriage and  therefore a agreement when the wife be capable of contract and in that case my  Lord Talbot lie it down over and over that it be the agreement of the wife  though no adequate settlement that the wife before matrimony be capable of  bargain and of part with her fortune upon what term she please and that she be  bind by it which hold not in the present case and the present case be strong  from the intent of the party the recital be that Mr la Noy be entitle to this  stock in right of his wife and he take the transfer to himself and wife joint  he have it in his power to reduce or sell these stock if he think fit his be  entitle in right of his wife to these stock though he be only to have the  benefit of they for his life will be a good consideration for this settlement  and he may intend by take the transfer joint to have it in his power to sell  these stock or if be do not to leave they to the direction of the law to  survive to his wife and I will not take they from her in opposition to the  intention of her husband and his lordship direct a account of what be due for  the portion of six thousand pound and also for the rentcharge of five hundred  pound ayear he also direct the estate to be sell and with the consent of the  defendant order a value to be set on the annuity of five hundred pound and  that the money arise by such sale or sale shall in the first place be apply to  pay the value of the say annuity and in the next place the arrear of  maintenance and then the portion of six thousand pound and interest and in  case the money arise by such sale shall not be sufficient to answer the six  thousand pound and interest then the plaintiff be to stand in the place of the  defendant the duchess of Athol to have the benefit of the covenant contain in  the settlement of that January for payment of the annuity and by virtue  thereof to receive a satisfaction for the deficiency of her portion of six  thousand pound and interest out of the personal estate of her father James la  Noy and if the personal estate shall prove deficient then out of the freehold  and copyhold estate devise by the will for the payment of debt modern report  er p