case morris and Elizabeth his wife versus burrow and other July Eq Cas Abr pl  SC first hear before Lord Hardwicke on the d of February see the case full  state in Tracy atkins report vol a freeman of London by will take upon he to  dispose of all his estate as well the orphanage as the testamentary part where  some of the child shall elect to abide by the custom and other to take by the  will their share of the orphanage part shall not accrue to that part but shall  go accord to the disposition of the father this cause come on now for further  direction after the master report and it be upon this case John burrow at his  death leave issue five child the plaintiff Elizabeth gyles and John and mary  marry to woollaston and and to Edward rise which gyles John mary and and be  advance by their father in his lifetime he by will give legacy to all his  child and to other person and the residue of his estate real and personal he  give to his son John and gyles and his daughter mary Elizabeth and and their  heir executor and administrator equal to be divide the testator die on the  that of October leave issue as aforesaid and gyles barrow alone prove the will  and possess his personal estate which be more than sufficient to pay the  testator debt atkins er p the plaintiff counsel at the hear of the cause argue  that the testator be a freeman of London and leave such issue as aforesaid  have not power to dispose of his personal estate by his will but the same  ought to be distribute accord to the custom of the city of London and the  testator have give plaintiff Elizabeth no more than pound on her marriage  which be far short of what he give the rest of his child and not have by his  will advance her equal with his other child insist the will ought to be set  aside atkins the defendant insist that the testator and the plaintiff  Elizabeth before her marriage together with George and Phillis burrow two  other child before the testator become a freeman enter into a agreement with  he whereby they do release their right to any part of his personal estate by  the say custom the plaintiff bring their bill to set aside the agreement and  the will and that gyles burrow may account with the plaintiff for testator  personal estate and that plaintiff may bring their advancement into hotchpot  and be pay their customary share of the testator personal estate and of the  dead man part the cause be hear the d of February at which time his lordship  decree the agreement to be voluntary and under the circumstance of the case  ought not to be consider as bind between the testator and his say child and  that the plaintiff be entitle to their customary share of the orphanage part  of the testator estate which be a moiety of the clear personal estate but that  the plaintiff elect to claim by the custom be not to have any benefit by the  will and that the defendant gyles burrow John burrow mary woollaston and and  rise the child of the testator be to be at liberty to make their election  whether they will take by the will of the testator or by the custom of London  the defendant mary woollaston and and rise have not yet under the decree make  their election whether they take by the will only or by the custom because  they do not know what will be t consequence of such election Lord chancellor  the question be whether when some elect to abide by the custom and other to  take by the will the share of the latter shall go among the other or go accord  to the will I think at first that it shall go accord to the will but no case  be cite and it not appear to have be consider on the part of the plaintiff I  be Willing to give they time to look into case and hear what can be allege in  their favour Mr Chute cite a case of Rawlinson versus Rawlinson before Lord  Harcourt the that of July SC cite pre Charles post there a freeman have nine  child of who one choose to abide by the custom the other by the will Lord  chancellor decree that child one nine and the other eight nine of the personal  estate to be subject to the disposition of the testator will this case have be  general cite to show the custom be that when a wife be compound with the  orphanage be one atkins moiety but accord to Mr chutes state of it it be a  case in point I think it agreeable to the reason and equity of the thing and  that the present case differ entire from the case of a wife compound with in  the case of townsend versus townsend Lord Talbot opinion arguendo seem to be  the same way though this point happen not to be material as the election be  not make there and so be not mention in the decree this be a question not of  the custom but depend on the equityof this court which be that no person shall  take by the will and at the same time do any thing that shall destroy the will  noise v mordant vern StreaIfield v StreaIfield can tempt Talb Boughton v  Boughton Ves clark v Guise Ves unet v Wilkes Amb Newman v Newman bro Charles  Rep Macnamara v Jones bro Charles Rep frank v standish bro Charles Rep black v  Bunbury bro Charles Rep finch v finch bro Charles Rep vide etian Hearle v  Greenbanke post vol forester v cotton Amb cull v Showell Amb where a father  have only dispose of the testamentary part they may take both but where he  have take upon he to dispose of both they can because it be inconsistent and  must one way or other break in with his disposition therefore I must put they  to make their election if they elect to take by the will it be only a  submission that their part shall go accord to the disposition of the father  now make the share of the child who elect to take by the will to accrue to the  orphanage part be to give it contrary to that election it be not direct but in  consequence let those who take by the custom take benefit by reason of the  will I but it be say that let it accrue to the orphanage part be agreeable to  other case as for example that of a wife compound with but this depend on a  different reason videlicet the custom which divide the testator estate in case  a wife be compound atkins er p with into two part as if there be no wife vide  medcalfe v Ives ante atk read v Snell post it have be compare likewise to the  case of child provide for but this also depend on the custom the present be a  case of child all capable of take within the custom and depend on the election  of the child and not on the act of the father which be the case put by Mr  brown be any wrong do to the child who take by the custom No certain for they  have all that they will have have if all have take by the custom therefore as  the whole depend on the election of the child and as all may have take by the  will so may any one atkins the distinction between act of the father and the  child be plain and the election be that this part shall go by the will if the  court be to declare that this share shall go to the orphanage part it be  contrary to the election and therefore if there have not be a case in point I  shall have determine it this way and I dare say it be take to be so at the  time of pronounce this decree therefore I must declare the share of whether  rise who elect to take by the will accrue to the testator estate and to go  accord to his will