case duke OF chandos versus talbot refer to henty v wrey Ch d Lord chancellor  king where pound be charge upon a real estate which estate itself come to the  person entitle to the money if in fee the charge be merge but where the pound  charge be secure by a term or other legal estate in a three person there the  charge be not merge nor if the estate which come to the person entitle to the  money be only a estatetail sir Thomas doleman the father upon a settlement  make on his marriage have a power to charge the manor of shaw in Berks with  pound and in case of nonpayment the say manor and premise be limit to the use  of trustee and their heir until this pound and interest shall be pay subject  to which charge the manor c be by that settlement limit to the first c son of  sir Thomas in tail male sir Thomas doleman make a appointment of the pound  unto I S under who the three child of Lewis doleman second son of sir Thomas  videlicet ThomasHumphrey doleman Lewis and Dorothy doleman become entitle to  pound equal to be divide among they this pound be say to be part of the pound  afterward sir Thomas doleman die leave issue two son sir Thomas and Lewis  Lewis die leave issue the say ThomasHumphrey Lewis and Dorothy sir Thomas  doleman the son suffer a recovery to the use of himself in fee queen if the  freehold be not in the trustee for raise the money appoint to be raise by sir  Thomas doleman the father and consequent no good tenant to the peer William  prcipe and by his will devise several annuity particular pound per annum to  one Elizabeth smith for life also several legacy as pound to his nephew Lewis  doleman Payable at his age of twentyfive pound to his niece peer William er p  Dorothy Payable at her age of twentyfive and devise his manor and land to  trustee and their heir Chargeable with the payment of his debt legacy annuity  and funeral upon trust that they shall receive the rend issue and profit until  his say old nephew ThomasHumphrey doleman or such person as shall be entitle  to the premise under the will shall attain his age of twentyfive and that the  trustee shall out of the profit pay pound per annum to ThomasHumphrey doleman  and pound per annum apiece to Lewis and Dorothy until their respective age of  twentyfive the rest and residue after debt annuity legacy and funeral and the  charge of the trustee pay the testator give to ThomasHumphrey doleman or to  such other person as shall be entitle to the next and immediate reversion of  the premise when they shall attain the age of twentyfive year also that from  and after his nephew Thomas Humphrey shall attain his age of twentyfive the  premise shall be to the use of he and the heir male of his body remainder to  Lewis doleman and the heir male of his body remainder to Dorothy in like  manner with diverse remainder over and have make his trustee dean smith and  Weston executor the testator die the that of April ThomasHumphrey doleman die  the that of August a infant intestate and without issue Lewis the next nephew  die the that of April a infant about sixteen year old have leave his mother  mary web who be the widow of Lewis doleman the father and afterward wife of Mr  peer William sergeant web executrix August Dorothy doleman intermarry with  John Talbot who afterward together with his wife then a infant assign over the  pound legacy give to her by her say uncle sir Thomas doleman will to Wilbraham  for pound Hillary Talbot and his wife she have attain her age of twentyone  levy a fine to Richard comb and in easter term then next suffer a recovery and  by deed of lease and release date the d and d of march declare the use thereof  to be to the intent that Richard comb shall have a annuity or rentcharge of  pound per annum in fee in consideration of the great and signal service do to  Mr Talbot and his wife by the say Richard comb and of pound by he pay or  secure to be pay to they the premise thus charge to be to the use of Talbot  and his wife for their life without waste remainder to the use of such person  and for such intent and purpose as the husband and wife or the survivor of  they by write under the hand and seal of they or the survivor of they attest  by two witness shall appoint and for want of such appointment to Dorothy the  wife in fee that of may John Talbot article to sell the premise to the duke of  chandos for pound the coppice and timber to be value and pay for by the duke  beside the purchase money the saint of January Dorothy the wife attain her age  of twenty one and on the that of December follow the duke of chandos bring his  bill against John Talbot and Dorothy his wife and other to have a specific  performance of the article the say Dorothy at the same time bring her cross  bill to set aside the fine and recovery and deed of use peer William the that  of July the cause be hear when so much of the cross bill as seek to set aside  the fine recovery and deed of use be dismiss the duke be article establish and  decree to be perform and the timber order to be value by two indifferent  person to be appoint by the master who be to see what money his grace have pay  in satisfaction of encumbrance affect the estate the master make his report  and on exception take thereto the cause be again bring on these point arise  saint as to two sum of pound S d and pound S d which be say to be part of the  say pound charge on the premise and which have be assign to Lewis doleman and  Dorothy doleman respective it be insist that Lewis doleman survive his elder  brother ThomasHumphrey doleman become tenant in tail of the estate charge with  this pound S d which be assign to he and as a estatetail be devise to he by  his uncle sir Thomas doleman will this be a inheritance which may endure for  ever and therefore do merge the charge of pound S d assign to he say per cur  here can be no merger because by the settlement make by sir Thomas doleman the  father the manor and premise be vest in trustee until payment of the pound  which legal estate yet continue in they and which be a feesimple make it a  strong case than that of Thomas and kemish vern where there be a term of year  in trustee peer William to secure a daughter portion Payable at eighteen or  marriage the fee descend to the daughter who afterward die unmarried and a  peer William er p infant about eighteen have first make a nuncupative will and  thereby devise all in her power to her mother whereupon it be decree by the  Lord summer and affirm by the house of lord that this portion be not merge but  shall go to her mother who have administration with the will annex indeed have  this be a mere equitable charge upon the land and a feesimple not a estatetail  only have come to Lewis doleman the son it may then have be a merger dly as to  the pound S d assign to Dorothy it be urge that she have join in a fine and  recovery of the premise this will extinguish all her right to any thing issue  out of or charge upon they either present or future and consequent bar her  right to the S d to which opinion the Lord chancellor at first incline vide  Stephens v Lord Bateman bro c c but it afterward appear on the read of the  will which give the pound to these child of Lewis doleman the second son that  it be only a legacy at large and not any part of the money secure by the  charge which sir Thomas doleman the father have make upon the estate wherefore  this exception to the master report be waive another exception be concern the  valuation of the timber and what be timber for the master by his report have  charge the duke with the valuation of young sapling estimate but at d or d  apiece which be several thousand amount to above pound as also of pollard some  of peer William which be rot or contain no timber the same of walnut tree  which be not timber though some of they be worth pound and other pound a tree  also yew cherry crab lime and horsechestnut tree be value as timber in the  master report Lord chancellor it be the custom of the country that make some  tree timber which in their nature general speak be not so as horsechestnut and  lime tree so of birch beech and asp and as to pollard notwithstanding what be  say in Plowd in the case of Sobi versus Molyns that these be not timber and  that tithe be to be pay of their Toppings which can not be if pollard be  timber yet if the body of they be sound and good I incline to think they  timber by if not sound they be in such case fit for nothing but fuel with  regard to the walnut tree it be say that though these may be valuable in  themselves yet since the duke by the article be only to pay for the timber by  which can be mean only such tree as be fit to be use in building and repair in  house therefore walnut tree be no way proper for these use be not to be value  which rule will also extend to young sapling or tree call titler though all  these may in time come to be timber however not be so when the article be  execute or decree pronounce the duke be not to pay for they Lord chancellor if  a timber tree which may not be worth pound or pound shall be value or pay for  in the purchase why not walnut tree some of which may be worth pound pound or  even pound apiece however as these tree seem to be of considerable value  unless peer William the party can agree among themselves to lump the valuation  and as it be the custom of the country which ascertain what be timber tree  make some to be esteem such which in their nature general speak be not  especial in country where timber be scarce I shall direct a issue to try  whether any and which of these tree be by the custom of the country to be  account timber then a question arise whether the pound legacy give by sir  Thomas doleman the son will to Dorothy Payable at her age of twentyfive year  and assign by her husband Mr Talbot and before she come to age and for the sum  of pound only be a good assignment for though Mr Talbot and his wife do join  in a fine and recovery of the premise charge therewith yet if it be well  assign to Wilbraham before the fine the subsequent fine can nor hurt it to  which the court agree and here it be object that the wife be then a infant the  assignment be void as to her that it be a choose en action in its nature  unassignable and whole in contingency until Dorothy shall attain her age of  twentyfive before which time if she have die be a charge upon land it will  leave sink also this pound be insist on to be merge because Dorothy live to  twentyfive the estatetail become complete vest in her and such estate turn  afterward into a feesimple by a recovery consequent when the charge upon the  land and the land itself come to the same person there must be a merger that  the issue of Dorothy can not be charge therewith at the suit of her  administrator wherefore it can not be say to subsist nor be assignable but  suppose this pound to be assignable yet as it be assign for peer William less  money than be real due videlicet for instead of pound the assignee peer  William er p Wilbraham shall only have the money he actual pay and not the  whole pound which though as against the assignor be may be entitle to yet as  against a mortgagee or creditor of the assignor be can claim no more than what  he have actual lie down agreeable to the distinction take in the case of  William versus Springfield vern to which it be answer that though a choose en  action as a bind c be not ill strictness of law assignable yet in equity it be  as every day experience show jacobson v William ante vol Higden v Williamson  post vol that though the wife be a infant when the assignment be make yet that  can not be material for if she have be of age and join the deed as to her will  have be void and she may have plead non be factotum but be a personal thing  the husband alone may assign it and with regard to its be a contingency until  the wife Dorothy shall come to her age of twentyfive it have be determine that  the possibility of a term videlicet where a term be devise to a for life  remainder to b for the residue thereof such possibility may be assign even by  the husband alone as appear from the case of Theobald versus Duffay Mod decree  first by the Lord Macclesfield affirm afterward by the present chancellor and  last of all by the house of lord but be it not in strictness to operate by way  of assignment yet it will be good as a agreement especial when make for a  valuable consideration that in the case of Beckley and Newland where two who  wife be coheiress to one Mr Turgis and in expectation of gain considerable by  he agree Mr Turgiss lifetime to divide between they what peer William shall  come to either of they by virtue of his will this be a agreement concern a  much more remote possibility than that in the present case and yet be  establish by a decree of this court then as to the objection of the assignment  be make for pound instead of pound the interest of the pound from the time of  make the assignment to that of dorothy attain twentyfive will amount to near  pound and consider the chance the assignee run of dorothy die before her age  of twentyfive the very insure of her life will come to so large a sum of money  as to make it a dear bargain that it will be still more unreasonable shall Mr  Talbot be construe to have destroy his own assignment of this pound legacy by  his own subsequent fine that be against his own assignment after have receive  a valuable consideration for the same name the full value consider the  remoteness of the time of payment and the hazard of the legacy sink in the  meanwhile shall have the legacy again and with regard to any judgement or  other creditor of Mr Talbot as they claim under he and have no specific lie on  the legacy they can not be in a better condition than he himself be for which  reason the Lord chancellor decree this assignment of the pound legacy to  Wilbraham to be good and that he be entitle thereto with interest from the  time Dorothy come to the age of twentyfive the last question be touch the  legacy of pound which by the first part of the will of sir Thomas doleman be  give to his nephew Lewis doleman to be pay at his age of twentyfive and so a  vest legacy as to the personal estate after which the testator real estate be  charge therewith and in regard Lewis doleman die a infant of about the age of  peer William fifteen and before the time appoint for the payment it be insist  that this be a legacy charge upon land do sink for the benefit of the hres  factus or born that here the premise Chargeable with this legacy among other  part of the real estate of the testator be devise to trustee and their heir  upon the trust and to the use herein before mention it be true in case of a  bequest of any sum of money out of a personal estate to one to be pay at his  age of twentyone or twentyfive if the legatee die before the time of payment  it become notwithstanding a vest legacy transmissible to executor or  administrator but where such legacy be devise out of a real estate and the  legatee die before the time appoint for payment there the legacy shall sink  into the land because equity will not load a heir for the benefit of a  executor or administrator one of the first case of which nature be that of  Paulett and Paulett vern where a portion be charge upon a term for year raise  out of a inheritance for that purpose Payable to a daughter at twentyone or  marriage the daughter die before twentyone unmarried and her administratrix  sue in equity for this portion the court decree it shall sink into the land  afterward case happen where land be by will charge with portion for child  Payable at their age of eighteen or twentyone and on the child die before such  time it be object that though it have be determine where by deed or settlement  land be charge with portion for young child Payable at certain peer William er  p time this be upon a marriage treaty where the party contract and stipulate  for particular purpose as the advancement of daughter in marriage and when the  fact so happen that the daughter die before peer William they have any  occasion for their portion these be decree to sink yet a legacy give by a will  be to be look upon as a bounty and not as arise upon any treaty contract or  stipulation between the party for which reason it shall not here sink as in  case of a settlement notwithstanding which such distinction have be disallow  and the rule in equity settle to the contrary as appear from the case of smith  and smith vern where a portion charge upon land by a will Payable at a future  day on the child die before the day be determine to sink in the land to which  purpose I cite the case of Yates and Fettiplace vern as in point where a  legacy be give out of a personal estate and in aid thereof the real estate  make subject Payable at a future day before which day the legatee die though  not only the difference before mention between a settlement and a will be  insist upon but likewise another distinction attempt to be make videlicet  where a legacy be charge both upon a real and personal estate and where upon  land only yet it be decree that the legacy shall sink into the land also I  mention the case of Jennings versus look hear before the master of the roll  and Mr baron Gilbert when lord commissioner of the great seal in which case a  legacy be give to a child Payable at twentyone out of the personal estate  which if not sufficient the real estate to be liable and in that case the  abovementioned diversity between a portion secure by a deed and a will be  insist on nevertheless this distinction be overrule and it be hold that though  if the administrator of the legatee who die before twentyone can get all or  any part of the legacy out of the personal estate he be at liberty so to do  yet with respect to the land he shall recover no part from thence peer William  in answer to all which it be urge that there be a material difference between  a portion contract for by stipulation of the party before marriage or secure  by a marriage settlement and legacy charge upon land by will which be a mere  bounty as also between a portion to a child for who the father be bind to  provide and a legacy to a nephew or remote kinsman for who the testator be not  oblige to make any provision that in the principal case the pound be give  first as a legacy out of the personal estate it will not sink but subsist  though the child shall have die before the day of payment and when by the  latter part of the will the land come to be charge this be only a security in  aid but shall for the payment of what be before give out of the personal  estate just as if a subsequent mortgage have be make for the payment of the  legacy the nature thereof or its subsistence will not thereby have be alter  but it will still continue a legacy at another day this cause have be adjourn  in order to search precedent the Lord chancellor say he have look into the  case of Yates and Phettiplace in vern and also that of Jennings and look both  which come full up to the present case vie that where the personal estate be  not sufficient and the real estate in failure thereof be make liable to answer  the legacy in case of the legatee die before the legacy become due the charge  upon the land determine that it seem but a very slight and superficial  diversity between a legacy give at twentyone and Payable at twentyone and  though it have be establish in the spiritual court as to legacy give out of a  personal estate it do not deserve to he favour or countenance where the legacy  be charge peer William upon land and the infant legatee die before twentyone  or before the time when the legacy be make Payable that there be not any the  least difference between a sum of money charge by a will on land Payable to a  infant at twentyone and where such charge arise by a deed that the authority  before mention show there be no difference where the real as well as the  personal estate be charge for in such case as far as the executor or  administrator claim out of the latter he shall succeed accord to the rule of  that court where these thing be determinable even though the infant legatee  die before the time of payment but as far as the legacy be charge upon the  land so far shall it on the legatee die before the legacy become Payable sink  and this be the rule which have of late universal prevail be the legatee a  child or a stranger it will be of the most dangerous consequence and disturb a  great deal of property for he to break into it wherefore he think that the  pound legacy Payable to Lewis doleman at twentyfive on his die before that  time as to so much thereof as be Payable out of the land must sink peer  William er p vide Chester v will Amb countess of Shrewsbury v e of Shrewsbury  bro c c Lord Compton v Oxenden Ves jun Forbes v Moffatt Ves price v Gibson  Eden Donisthorpe v porter Amb Eden but in that case the wife join in the  assignment on which foundation Lord Hardwicke say the court determine bush v  Dalway ves atk the husband be a alien Mod and so can neither take nor transfer  any interest in the term however a assignment by the husband of the wife  possibility will be good in equity if the husband as in the principal case be  alive when it come into possession but not otherwise Hornsby v lee mad Cordell  v Acton cite in stamper v Barker mad the distinction above mention with  respect to interest arise out of personal property as far at least as they be  of a legatory nature although explain and in some degree correct by the more  modern case be in substance establish by Lampen v Cloberry Charles can smell v  do you salk Eq can ab pl note Barlow v grant vern Onslow v south I Eq can ab  pl Stapleton v Cheeles pre Charles love v lestrange bro p c and Edward bro p c  Corbet v palmer Eq can ab pl Lowther v give Barnard Steadman v Palling atk  goss v Nelson burr barn v Allen bro c c monkhouse v holme bro c c Benyon v  Maddison bro c c may v wood bro c c Mackell v winter Ves Bolger v Mackell Ves  hanson v Graham Ves Hixon v Oliver Ves where interest be give before the time  of payment it be evidence of a intention to vest the legacy Collins v Metcalfe  vern Stapleton v Cheeles vern and pre Charles S c Atkins v hiccock atk van v  clarke atk neal v Willis Barnard fonnereau v fonnereau atk and ves S c Walcot  v hall bro c c booth v booth Ves hanson v Graham Ves Branstrom v Wilkinson Ves  lane v goudge Ves leak v Robinson mere but it seem that these authority be not  applicable to any interest but those of a legatory nature although the fund be  mere personal Hubert v parson ves Lord Teynham v web ves goss v Nelson burr so  with respect to all interest arise out of land the rule on the subject be  total different for whether the land be the primary or auxiliary fund whether  the charge be make by deed or will as a portion or general legacy for a child  or a stranger with or without interest the general rule be that charge upon  land Payable at a future day shall not be raise where the party die before the  time of payment bind v brown Charles can lady powlett v Lord powlett vern  smith v smith vern Yates v Phettiplace vern carter v Bletsoe pre Charles  tournay v tournay pre Charles Stapleton v Cheeles pre Charles Jennings v look  ante rich v Wilson mos Bateman v roach Mod Gordon v baines post vol Bradley v  Powell can tempt Tal hall v terry atk prowse v Abingdon atk boycot v cotton I  atk in which the authority of Jackson v Farrant vern and cave v cave vern be  deny van v clarke atk Richardson v grief atk attorney general v milner atk  Tunstall v Bracken bro c c note Harrison v Naylor bro c c S c Cox in this case  the legacy be charge on land direct by the will to be purchase Gawler v  Standerwicke bro c c note S c Cox Phipps v Lord Mulgrave Ves butler   Litt a  nor will the court even marshal asset in favour of the representative of the  decease legatee pierce v Loman Ves this rule however be subject to many  exception as where the time of payment be postpone from the circumstance not  of the person but of the fund Lowther v give atk Barnard S c butler v Duncombe  ante vol Pitfields case ante king v wither can tempt Tal and post vol S c emes  v Hancock atk Sherman v Collins atk Hutchins v foy Com Rep Hodgson v Rawson  ves Thomson v dow bro c c note man v Herbert Amb Tunstall v Bracken bro c c  note and Amb S c embrey v Martin Amb smith v partridge Amb jeal v Titchener  bro c c note clark v Ross ibidem Kemp v Davy ibidem Pawsey v Edgar bro c c  note Morgan v gardener bro c c note Dawson v killet bro c c Godwin v Monday  bro c c emperor v Rolfe ves peer William er p Cholmondeley v Meyrick I Eden  bro c c n Willis v Willis Ves hope v Lord clifden Ves Shenck v Legh Ves powis  v Burdett ib king v Hake ib hallifax v Wilson Ves Howgrave v Cartier v b coop  walker v main James W or where the testator have manifest a intention that the  legacy shall not sink Watkins v cheek S S in those case where portion have be  give out of land and no time of payment express it seem difficult to reconcile  the determination accord to earl of river v earl of Derby vern Cowper v Scott  post vol Wilson v Spencer post vol they be interest vest present and  transmissible yet brewin v brewin pre Charles war v war pre Charles Lord  Teynham v web ves Tunstall v Bracken bro c c note Lord Hinchinbrooke v Seymour  bro c c determine that such portion do not vest if the child die before they  want they et vide Lowther v give atk