atkins case SERGESON versus Sealey October see price v Berrington Mac g a  inquisition of lunacy be always admit to be read but be not conclusive  evidence for you may traverse it where before a inquisition of lunacy a person  who be find a lunatic have make a purchase with the approbation of his only  son the court will not change the disposition that have be make of this sum of  money but the purchase will stand Mr attorney general object to the read a  inquisition of lunacy because it be offer as evidence to affect the right of a  three person and as it likewise have a retrospect of eight year Lord Hardwicke  overrule the objection and say that inquisition of lunacy and likewise other  inquisition as post death c be always admit to be read but be not conclusive  evidence for you may traverse they if you please by the inquisition the jury  find Mr Samuel Pitt a lunatic without lucid interval eight year back so that  it take in the time of the transaction with his son about lie out some part of  his personal estate in the purchase of real for the lunatic benefit the two  witness to encounter the inquisition and to prove Mr Samuel Pitt sanity one of  which be his apothecary swear his understanding at the time of this  transaction be somewhat impair from his paralytic disorder but that it do not  total deprive he of it and that his memory will serve he to give a answer to a  short question but not to one of any length the principal point be whether  money belong to a person who be suppose to be a lunatic and which have be lie  out in land do not still belong to those person who will have be entitle to  the money at the time it be convert into real estate and whether the property  of a lunatic can be alter in any respect whatsoever or whether this court can  give it to a different representative than the law will have do vide ridler  versus ridler Eq Cas Abr Lord chancellor the general question in this case be  whether there be sufficient ground in a court of equity to set asideathis  purchase which cost and to consider it as personal estate a lunatic be certain  capable of take by way of grant   Litt b Perk S and therefore this estate have  vest in Mr Samuel Pitt and may descend from he I will consider first whether  upon make this purchase in this gentleman be non compos chin atkins there be  not at present before I sufficient evidence to satisfy I that he be absolute a  lunatic or non compos as to the inquisition the jury have carry it to far in  find he a lunatic as his incapacity be owe to a distemper they shall have find  that he be not capable of manage his own affair and not proper that he be a  lunatic when I admit the inquisition to be read I say it be not conclusive  evidence for it be not conclusive as to the point of time of take the  inquisition much less as to the retrospect of eight year for notwithstanding  such inquisition there be numerous instance of a subsequent inquiry the  evidence before I be that he live with his own family after he have the  paralytic disorder as well as before and that he be assist in the management  of his affair by his only son and his steward and at the very time the  purchase be depend the suppose lunatic himself road out to inspect the estate  which be intend to be buy atkins er p now can it be suppose that the family  will have make all this unnecessary parade if they have not think Mr Pitt  capable of judge there be a great many instance of apoplexy turn to paralytic  disorder which may at first affect only the member and organ of the body and  by degree as the weight of the distemper increase may affect the memory and  understanding in this purchase be make and the inquisition be not till two  year after and though the jury out of a necessary caution have find it with a  retrospect of eight year in order to take in alienation yet I shall not for  that reason only direct a further inquiry the purchase appear to have be a  reasonable act and no evidence to show it otherwise and yet it be say Mr Pitt  be a lunatic at the time the court will not vary the property and have be  compare to the case of infant ex part marchioness of Annandale Amb ex part  Grimstone Amb vide etian ex part Bromfield bro Charles Rep it be true in the  case of infant it be so vide Tullit v Tullit Amb inwood v twine Amb and upon  application to the court to lie out part of their personal estate in land it  be always grant with a salvo that if the infant die before or do not approve  of the purchase when be come of age that the property shall not alter atkins  but the case here be quite different the person life in his own family as he  do before this paralytic disorder and also consent to the purchase two year  before any legal inquisition into his capacity and will it be right in the  court to overturn act that be do with the concurrence of the whole family and  in a reasonable manner if I do I be sure it will be attend with numerous  inconvenience here be in this case the strong circumstance in the world but  one son who must have be heir of the real estate if not dispose of otherwise  and entitle to the personal estate if his father the suppose lunatic die  intestate though it be very true the court will not order the personal estate  of a lunatic to be turn into real estate yet there have be application to this  court to lie out part of his personal estate in repair vide ex part Ludlow  ante or even upon improvement of his real estate and the court have allow it  if the next of kin at that time who if he be dead will be entitle to his  personal estate do not show any reason against it and such a order of the  court have be even bind upon other person who be not consent to the order at  the time it be make but happen to be the next of kin at the lunatic death  therefore as this purchase be a reasonable act and do with the approbation of  the only son and as the court ought especial to give the turn of the scale in  favour of a heir I be of opinion there be no ground for the court to change  the disposition that have even make of this sum of money but the purchase must  stand there be another point make in this cause William Pitt the son of Samuel  Pitt marry mrs speak and by the marriage article it be covenant that if there  shall be one son only and no young child and the wife shall survive the  husband that she shall have the power of dispose of by deed or will execute in  the presence of three witness to any son she shall appoint and this sum be to  be a charge upon the real estate of the husband atkins Mr William Pitt die  leave only one son Samuel Pitt the young who live to be only nineteen and die  before he come of age his real estate descend upon mrs Sergeson the plaintiff  wife who be great niece of Samuel the elder and heir at law to he and to  William Pitt his son and to the infant Samuel the young the grandson of Samuel  the elder after the death of Mr William Pitt Mr speak marry the widow but  before her second marriage she by article execute in the presence of two  witness only appoint the sum of pound out of the pound to be for the use and  benefit of her intend husband during the coverture and after her death to her  son Samuel Pitt the other pound she make a voluntary disposition of by will  but do not execute it in the presence of three witness Lord chancellor the  question be whether the article enter into upon mrs speak marriage with Mr  speak amount to a appointment within the power I be of opinion that it be a  good appointment of pound for the benefit of Mr speak and notwithstanding it  be insist that it be a defective appointment because there be only two witness  yet this court will supply the defect where it be execute for a valuable  consideration much more where it be au execution of a trust only and though  the atkins er p appointment be inaccurate express and in a informal manner it  shall still amount to a grant of the pound to Mr speak and if it amount to a  grant what be the effect why that Mr speak shall have the whole use and  benefit of it during the coverture and fall exact within the reason of lady  Coventry case where a tenant for life with a power to make a jointure covenant  for a valuable consideration to execute his power this court will supply a  defective execution or a nonexecution against the remainder man vide Coventry  v Coventry p W Tollett v Tollett p W Cotter v Layer p W holt v holt p W Harvey  v Harvey ante vol the next question be as to the remain pound this be not a  appointment for a valuable consideration but only a voluntary disposition and  therefore as the will under which the pound be give be not execute in the  presence of three witness it have not pursue the power and consequent be a  void appointment so that this pound sink in the infant real estate atkins  there be another question which relate to the interest of the pound appoint to  Mr speak by the article before his marriage and it be insist that from the  time of the article execute interest commence and that it ought to have be  keep down by the infant during his life it be maintain upon these ground saint  that the infant be only tenant in tail remainder in fee and that the remainder  in fee never come into possession he be liable to keep down the interest out  of his personal estate and dly that the plaintiff can be charge with it  because mrs Sergison his wife be heir at law of the infant father as well as  of the infant himself have no occasion to claim through the infant at all but  may derive her title immediate from the father as to the first ground to be  sure there be that nicety in the law between a remainder in fee in reversion  and in possession but to say in equity that the infant shall be compel to keep  down interest upon his own estate of which he be seize of the remainder in fee  out of his personal estate be such a nicety that I can allow of by any mean as  to the second ground I be of opinion mrs Sergison be oblige to show b er  cousin age through the infant though in the descent she may derive the title  from the father only I do not so much as remember a instance where even a  tenant in tail have be oblige to keep down interest the reason of which be  because the remainderman or reversioner be consider as whole in the power of  the tenant in tail chaplin v chaplin p W Amesbury v brown Ves but the same  reason do not bold in the case of a infant tenant in tail because he can bar  the remainder unless under the king privy seal therefore his guardian or  trustee must keep down the interest see the decree in this case above Ves so a  tenant for life be oblige to keep down the interest on encumbrance Hungerford  v Hungerford pale yellow Rep partridge v Pawlett ante vol revel v watkinson  Ves Tracy v Hereford bro Charles Rep where a tenant in tail pay off a  encumbrance without take a assignment it be a exoneration of the estate but  where a tenant for life pay it off he be consider as a creditor for the money  so pay off but in either case evidence of the intention or situation of the  estate may be admit to prove the contrary kirkman v smith Ves Amesbury v brown  Ves Jones v Morgan bro Charles Rep the countess of Shrewsbury v earl of  Shrewsbury bro Charles Rep but if he die during his infancy and the remainder  in fee be limit to a stranger it may possible make some difference but I will  not determine now how the court will direct in that case in the present case  have there be a application to the court in the infant life by his guardian  the court will have direct the interest of this pound to be keep down out of  the rend and profit of his estate and not out of his personal estate suppose a  infant tenant in tail remainder in fee bad nothing to support he but the rend  and profit of real estate and will starve if they be to be apply to keep down  interest I shall not in that case have direct they to be so apply bevel v  watkinson Ves Saville v Saville post but here there be a large personal estate  beside the rend and profit of the real estate which make the difference  therefore there must be a account take of the rend and profit of the real  estate of the infant descend upon mrs Sergison the wife of the plaintiff and  so much of they apply atkins as will pay off the interest due upon the pound  appoint to Mr speak which must be at the late of per cent and commence from  one year after the execution of the article of appointment to Mr speak atkins  er p the state of this part of the case from the register book be as follow  upon the marriage of jane palmer with William Pitt jane estate be settle upon  William Pitt for life remainder to the first and other son in tail remainder  to the right heir f William Pitt there be a power for jane to charge the  estate with pound for such person as she shall by deed or will duly execute  appoint this settlement be date and that October William Pitt die in leave  Samuel his son who die a infant in mrs Sergeson be heir at law both to William  Pitt and Samuel the infant on who the remainder in fee of the above estate  have descend in August jane make her will attest by three witness and make a  disposition of the chief in favour of her son Samuel in January previous to  her marriage with the defendant speak jane enter into article whereby she  declare that it shall be lawful for her intend husband to raise pound part of  say pound for his own use and speak covenant to convey land for secure the say  pound but in trust nevertheless to permit to take the profit of those land  during his and jane life and then in trust for raise the say pound for the  young child of that marriage if no child then for Samuel a power be reserve to  jane to make a disposition of the other pound and the rest of her personal  estate by her will the number of witness to these article do not appear mrs  speak make a codicil duly execute and thereby confirm her will and give the  residue of her personal estate to her son Samuel there be no issue of the  marriage the defendant speak and cruise who be executor to Samuel the infant  insist that so much of the pound as be not appoint by the article in favour of  speak be a charge upon the real estate descend to the plaintiff and ought to  belong to they as executor of Samuel by virtue of the aforesaid will and  codicil of mrs speak as to the sum of pound which jane Pitt by virtue of the  settlement that October have a power to charge on her own real estate his  lordship declare that the same be a charge on the say real estate and his  lordship direct the master to compute interest on the sum of pound part of say  sum of pound from the end of on e year after the date of say article of that  of January at the rate of per cent per annum and to take a account of the rend  and profit of the premise whereon say sum of pound be charge which accrue from  the end of the year after the date of say article which be receive by the  defendant S eke he have marry jane the mother and guardian of say infant  Samuel Pitt and what shall be come on account of say rend and profit be to be  apply towards keep down the interest during the lifetime of say Samuel Pitt  the infant and his lordship declare that the surplus of the interest of the  say sum of pound which accrue during the lifetime of say jane late the wife of  the defendant speak belong to say defendant speak and his lordship direct the  master to compute interest on the sum of pound residue of say sum of pound  from the time of the death of say jane late wife of say defendant speak at the  rate of per cent per annum and that the say principal sum of pound together  with so much of the interest for the sum of pound part thereof at per cent as  shall not have be discharge by the rend and profit of say estate during the  lifetime of say Samuel Pitt the infant and the whole interest at the same rate  from the time of his death and interest for the sum of pound residue of say  pound from the time of the death of say jane be raise by sale or mortgage of  say estate and the say principal sum of pound when raise to be pay into the  bank in the name and with the privity of the accountantgeneral c and the  surplus interest of the say first mention sum of pound part thereof over and  above what shall have be discharge by the rend and profit receive during the  lifetime of say jane be to be pay to say defendant speak the residue of the  interest of say sum of pound together with the principal be to be pay into the  bank in the manner aforesaid Reg lib b fol atkins er p