case HEARLE versus Greenbank and Andrew and other assignee of the estate and  effect of WINSMORE a bankrupt versus Greenbank HEARLE and other may see  Sheddon v Goodrich Ves jur Morgan v Morgan mad feast v Allen hare Donovan v  Needham Beav more v Webster lr Eq Appleton v Rowley lr Eq in re George estate  George v turnell W r may v potter W r not follow Cooper v Macdonald Ch d see  in re cardross settlement Ch d comment on Andrews v Andrews Ch d follow in re  de BurghLawson de BurghLawson v de burgh Lawson l I Ch SC I ves Lord Hardwicke  say there be no precedent either in a court of law or equity where it have be  hold a power over real estate execute by a infant be good and declare as he  can find none he will make none and that the disposition mrs Winsmore in this  case have attempt to make can not take place the end of the original bill be  that William worth will and the will or disposition make by mary Winsmore in  virtue thereof may be confirm and establish by the decree of this court and  that Greenbank c may be compel to execute the trust under mary will and to  account with the plaintiff for the real and personal estate of William worth  and mary Winsmore decease and that if the defendant mary Winsmore the daughter  of the testatrix mary make out her title to all or any part of her late mother  freehold copyhold or leasehold estate that then she may either convey her  right therein to the plaintiff or else that so far as the value of the estate  shall extend the same shall be take by her in or towards satisfaction atkins  of the eight thousand pound devise to her by the will of her mother and that  the plaintiff may be decree a equivalent for the eight thousand pound to the  value of the settle estate the end of the cross bill be that the defendant  Greenbank may account with the plaintiff for the personal estate of Dorothy  price and William worth and for the rend and profit of such part of their  freehold copyhold and leasehold estate as shall appear to belong to the  plaintiff and deliver the possession of the say freehold copyhold and  leaseholds to the plaintiff and that all other necessary party may join in  convey and surrender the same to the plaintiff or as the shall direct William  Winsmore who be a tradesman in Worcester in march intermarry with mary worth  the only child and heir of doctor William worth archdeacon of Worcester who be  very rich without the knowledge or consent of her father Mr Winsmore be at  that time upward of forty year of age and she not quite sixteen the marriage  be keep secret for many month and when it break out doctor worth be at first  great enrage at it but Winsmore pretend that if the doctor will let he have  fourteen hundred pound part of three thousand pound his wife portion  independent of her father he will make a suitable settlement doctor worth do  accord pay the sum to he and in appearance be recon atkins er p cite to he but  doctor worth discover soon after a fraud intend on he by Winsmore and no  settlement make show a utter aversion to he and will never be reconcile to he  afterward Winsmore be in insolvent circumstance a commission of bankruptcy  issue against he the d of march and Johnson and other be choose assignee on  the d of June his wife be bring to bed of a daughter the defendant mary  Winsmore and afterward Mr Winsmore prove a unkind husband she withdraw from he  in December under the influence and persuasion of her father who on these term  become reconcile to her in August doctor worth die but before his death he  make his will date the that of the same August and thereby devise all his  freehold copyhold and real estate atkins whatsoever and wheresoever and all  his leasehold estate to wood and Greenbank their heir executor administrator  and assign upon trust that they shall apply the rend issue and profit thereof  to and for the sole and separate use of his daughter mary wife of William  Winsmore during her life and at her disposal and not to be subject to the debt  power or control of her say husband but that her receipt notwithstanding her  coverture shall be effectual for the same and upon further trust that they  shall permit and suffer his say daughter by any deed or write to be by her  execute in the presence of three or more credible witness notwithstanding her  coverture to give devise and bequeathe all his say freehold copyhold and  leasehold estate to such person and person as his say daughter shall think fit  she have a particular regard to his poor relation in Cornwall all the rest and  residue of his good chattel and personal estate after payment of his debt  legacy and funeral expense he give to wood and Greenbank in trust for his  daughter and for her separate use and disposal and not subject to the debt  power or control of her husband and of his will appoint wood and Greenbank  executor on the that of December mrs Winsmore die at riegate in Surre where  she have ever since her leave her husband as aforesaid live separate but  before her death she in pursuance of the power give to her by her father will  do on the that of October duly execute her power of appointment and  disposition delegate to her by her father will over his whole real and  personal estate by a write sign and seal in the presence of three witness and  in the form of her last will and testament whereby she give and bequeathe to  her daughter mary Winsmore one hundred pound a year until the age of ten year  and after the further sum of fifty pound a year till she attain the age of  twentyone the say sum to be apply by her executor for the education and  maintenance of her say daughter accord to their discretion she also give and  devise to her say daughter pound to be pay her when she shall attain the age  of twentyone year but if her say daughter shall die before the say age without  issue live at her death then she bequeathe the say pound to her cousin Henry  worth esquire and Francis Hearle esquire to be equal divide between they and  after give several other legacy charge all her real and personal estate which  she be entitle unto by virtue of her father will with the payment thereof and  appoint Greenbank c joint executor guardian and trustee to her daughter till  twentyone and all the rest residue and remainder of her real and personal  estate which she be entitle unto or interest in she give and devise to the  plaintiff their atkins heir executor and administrator for ever as tenant in  common and not as jointtenants William Winsmores certificate be allow in  September and the assignment of the wife estate from the commissioner to the  assignee be in June Mr attorney general for the plaintiff make this question  whether mrs Winsmore under the sanction and authority give her by her father  will can dispose of the real estate as she have do by her will notwithstanding  her infancy No intention of doctor worth appear to postpone the time for his  daughter dispose of his real estate any more than his personal she recite the  power but it be object that be a infant she be incapable of make any  alienation of her real estate it be admit on the other side that as a feme  covert she may dispose of real estate though not proper by a will vet by a  instrument in the nature of a win a person may clear by a power enable one to  do a act who be in herself incapable of do it if a feme covert make a lease it  be absolute void but if a infant make atkins er p a lease it be not absolute  void for he may confirm it when of age a infant likewise may present to a  church so that they may do several thing where they may be enable by authority  though they can do it mere of themselves for this purpose cro James fol be  cite and   light fol b a infant seize of land hold in socage may by custom  make a lease at the age of fifteen year and shall bind he which lease be  voidable at commonlaw the yearbook of the h fol plea be to the same effect and  in cro Elizabeth it be lie down that a infant may do by custom what he can not  otherwise by law noise Rep fol that a grant of a copyhold by a infant be good  what be it give he a capacity the law consider the custom of the place as  enable he to do a act which can not otherwise have do to apply these case the  whole estate here be give to trustee to permit her to receive rend during life  can it be deny that she can have apply the rend as she think fit now this she  can not have do by law and yet she certain may by this delegate power atkins  there be no case where there have be a determination in point and therefore  must be govern by the reason of the thing Lord chancellor stop the plaintiff  counsel and mention the follow one in more where it be say by sir Francis more  arguendo that where custom allow a infant to make a feoff at year of age if he  make a feoff to the use which he shall appoint by his will if he make a will  that which be void as be his last will because he be a infant yet shall serve  to declare the use of the feoff the counsel for the plaintiff insist this be  no authority but only arguendo and as the disposition under the will of mrs  Winsmore arise from the appointment if take otherwise will clear overturn the  intention of doctor worth and therefore hope the court will think she have a  proper power to dispose of the real estate the next question be whether the  daughter of mrs Winsmore must not accept of the eight thousand pound that be  give her under her mother will accord to the term of the will or if she claim  contrary to it renounce the will in toto nothing be a more know rule in this  court than where a person will take benefit by a will he be not to contradict  or contravene the will where it be not for his advantage and therefore she  must take accord to the intention of the testatrix and can claim the estate  devise away from her the next question be whether the surplus interest shall  accumulate till the daughter of mrs Winsmore be of age or sink into the  residue for the benefit of the residuary legatee the appoint a particular  maintenance of different sum at different period show clear her intention the  surplus interest shall not accumulate I as to the sum of fourteen hundred  pound whether this be not in part payment by doctor worth of mrs Winsmores  legacy from a collateral relation mrs price or whether it be a bounty from the  father I apprehend it to be so clear in part payment of mrs price legacy that  the other be too force a construction to have any weight as to Mr Winsmore the  husband be tenant by the courtesy though this court have construe a husband to  be tenant by the atkins courtesy of a trust yet that do not extend so far as  to make he tenant by the courtesy where it be a trust create by a testator  clear with a intention to exclude the husband in support of this he cite  Sandys versus Dixwell before Lord Hardwicke December Tr atk Mr Evans of the  same side argue that a infant may appoint a guardian by deed and by the law  have a power of alienate property and in the case of Arlington versus sir  Walter cavalry in the infant then but one year old convey by deed under hand  and seal and hold to be good the custom of gavelkind empower a infant to  dispose of real estate at the age of fifteen Mr Hussey of the same side argue  that mrs Winsmore take no more than a estate for life with a power or  disposition to dispose of the fee he cite Leon to support this distinction  that where a estate be first give for life a power to dispose as the devisee  for life shall think fit do not make the estate for life merge but be still  subsist and the latter be consider only as a power and not a express devise in  fee vide Tomlinson versus Dighton p wms atkins er p a infant or feme covert  may deliver seize because one cannotprejudice himself nor the other her  husband for the same reason he may present to a advowson because he do not  prejudice himself as he be not entitle to the profit for the same reason he  may grant copyhold and this principle seem to be the test on which all these  case be try Mr Noel to this point say a infant may be vouch in a common  recovery and also bind by aid prayer Mr Wilbraham for the assignee under the  commission of bankruptcy against Winsmore that there be such a interest in mrs  Winsmore under doctor worth will as must make her husband tenant by the  courtesy he admit that doctor worth intend to vest his estate in trustee for  the sole and separate use of his daughter that the direction be to pay to her  the rend and profit of his real estate during her life and that they shall by  any deed c suffer his daughter to dispose of all his freehold c atkins but  then he insist that trust be to be govern as near as may be by the same rule  as use be at commonlaw and so much as be not dispose of result back to the  grantor and that the trust be a descendible interest and will pass in the same  manner as in the case of a legal estate he also insist when this equitable  interest be give to receive the rend and profit for her life the whole residue  of the interest in the fee devolve upon her for if the remain part of the  equitable interest be not in abeyance then it be in doctor worth and  consequent descend upon his heir the testator direct that the very act of  devise and give shall be the act of the daughter and therefore be not a mere  execution of a power but the very gift of the daughter herself and she be the  complete owner of the feesimple of the trust a power be give to this lady to  dispose of it in her lifetime and not bare to take effect after her death if  so then she have such a power as give her the total interest and may have  descend to her daughter for there be no other way of the daughter take it  because the mother take it by descent from her father and the daughter as  derive from her mother the next question be whether mrs Winsmore take such a  interest as she can dispose of in her situation infancy it be admit to be the  law in gavelkind than a infant of may make a feoff of land but then it must be  very particular for it must be for money and a consideration of live shilling  will not be sufficient in the case of copyhold mention that be in the case of  a infant Lord and be mere for the interest and advantage of the copyholder and  the infant be only instrumental and it be always who dominus to go away in  general I do not know any instance where infant have be allow to execute these  sort of power which will affect the interest and the present be a power couple  with a interest and require as much stability of mind to execute as a feoff  the reason why the law of most country fix it to a certain period of age when  a person shall have power to dispose be that it will otherwise be liable to  perpetual controversy in particular case whether the person have capacity or  discretion to dispose or not atkins it be say whenever a power be execute it  become a part of the original deed or will under which the power be give this  seem to be absurd because they can circumscribe it by any rule but real  discretion and it will be more convenient to adhere to the general rule of law  that infant can dispose of real estate till or they may as well say that such  a power give to a lunatic be good for such a person may as well be capable of  dispose as a infant in arm Mr capper for the creditor of Mr Winsmore insist  that the obtain his certificate will not make any alteration so as to make it  a new acquisition and go to he but will belong to his creditor for this vest  by the commissioner first assignment and a second assignment upon any property  fall into possession be rather ex abundant caution and not absolute necessary  and for this purpose cite p wms Mr solicitor general counsel for the daughter  of mrs Winsmore say in the case of Jewson versus Moulson before Lord Hardwicke  October Tr atk it be lie down that creditor of a bankrupt must take in the  same manner as the bank atkins er p rupt himself will do in case the wife be  live but though she be dead here yet the child of the marriage have the same  right with the mother and have a equity to be provide f or as well as the wife  of the bankrupt the husband make no settlement on the wife and the child of  the marriage and beside receive pound of the wife fortune so that he have  within pound a moiety of the wife fortune under mrs price will which be more  than what he ought to have and therefore the infant daughter be entitle to the  remainder of this legacy as a provision as to the point of the surplus  interest of the pound there be a circumstance in this legacy which show it  vest before the time of payment because if she die before leave issue it vest  in her and go to her representative and therefore it be the intention of the  testatrix it shall vest in her for the benefit of the infant family and not  with any view to the residuary legatee and be postpone only on account of her  tender year be little more than a year old the last question and the principal  one be whether mrs Winsmores be a good devise of the real estate I will  consider the opinion of law first with regard to the infant discretion atkins  the law of England draw the line at the age of twentyone and therefore all  court must look upon a child of as a child of year old and you be by the law  conclude from say she be more capable at one period of her age than another  and this be not only for the sake of herself but for the sake of her heir  there be exception indeed to this general rule but it be where infant be mere  conduit pipe or instrument that do not fall within the reason of the law for  he have no discretion there to exercise as in a presentation to a church  because the ordinary will take care that he be mask fit who be present and  therefore a suck child in the lap of the mother may present a infant as a  executor may apply asset proper but can there do a act which will make he gild  of a devastavit power in the law language be divide into power appendant and  power collateral as to power that be naked authority he that be in by virtue  of the power be in by the grantor of the power and be so consider a good while  but then in the modification of estate they hold in court of law where they be  couple with a interest they may be release or extinguish and where they flow  from a interest they be consider as mode of ownership and with this view court  of law construe they liberal as part of the old ownership belong to the  grantor of the estate the law have say that a infant may execute a naked  authority but I doubt whether a private person can give such a power to a  infant couple with a interest because this be reverse the law for the infant  be seize in fee and she will affect the inheritance at a time when the law say  she be incapable of do it and be introduce a new sort of invention in  contradiction to the law and therefore it be a exceed doubtful thing whether a  private person can give such a power may Hearle and Greenbank et e contra the  solicitor general go on for the defendant mary Winsmore the infant inability  of infancy be a natural inability before the statute of use all these power be  mere use a infant can not by bargain and sale convey the use of the land  because equity follow the law and he be equal unable to convey the use atkins  the only thing that look like a authority be what fall from your lordship one  part of sir Francis more be argument lead he to assert this proposition that  it shall stand good as a declaration of the use of a feoff though it be void  as a will but the matter there be entire compound so that be do not appear of  what opinion the court be in the late case of oak versus Heathe Ves S c before  your lordship you be please to say that where a power be execute by way of  will and the appointee die before the testatrix it lapse as much as if it have  be a devise to a person of personal estate or real and legatee die in the  lifetime of the testator and if the power be to be execute by a will that will  be subject to all the formality and ceremony as in any other common case of a  will the statute of will give a power to devise to every person whatever and  though it do not say he shall not devise yet the law operate upon it and will  not suffer a infant to do it who be under a legal inability to devise atkins  er p wherever a man make a settlement and a limitation to his first and every  other son for life with a power as each shall come into possession to make  lease and a jointure there be not a instance to be show where it have be hold  that a infant on who this power devolve can make a lease or a jointure and  there have be numberless act of parliament to enable a infant to make a  jointure and other to enable they to make lease which imply it can be do  without Lord chancellor say there be instance of guardian be appoint in case  the limitation shall take place in a infant to make lease for he Mr solicitor  general this be strong for my client because it show the opinion of mankind  that infant can not do those act and therefore appoint a guardian who must  himself too be of age he insist there can be no rational construction put on  this will to show the testator have any idea of his daughter dispose of real  estate before her age of at the time of his will mrs Winsmore be a young woman  of who have go through the peril of childbirth in good health and not at all  likely to die in two year time so that he have no other view but to make her a  feme sole because the bankruptcy of the husband happen in he be guard against  his fortune fall into the husband hand atkins sole and separate useof my  daughter be always in contradiction to the husband he be not content with say  it affirmative he go on and say it negative her receipt shall be good and  valid notwithstanding her coverture this be what he be provide for the next  thing as the marriage here may continue during her life be to give her power  to dispose notwithstanding her coverture so that this be the only impediment  the father be endeavour to remove there be not a word in doctor worth will  that say she shall do it notwithstanding her infancy or notwithstanding any  other cause objection or impediment to show it in a strong light let I suppose  she have lose her sense and have grant be a lunatic by deed or will will this  have be a execution of the power and vet a lunatic in the eye of the law be  not more incapable of do a act than a infant the next question be whether the  infant can claim the land contrary to the will and yet be entitle to her  legacy of eight thousand pound likewise the rule as lie down by the other side  be you can take by the will in one respect and reject it in another but the  question here be how it will be if the testatrix have take upon her to devise  land to which she have no right and whether in such a case if the devisee  insist upon a personal legacy under the will she can set up a claim to the  land contrary to the will the will here can be read in evidence to a jury  because the testatrix execute it under age and consequent have no power to  devise therefore if we be right in our first position it be no will it be  absolute void and accord to the case in siderfin can be read the rule be you  shall make good the whole will if you elect to take by that will but can hold  where it be no will for you shall not make good the whole will when in law it  be no will at all as to the point of the husband be tenant by the courtesy it  be right determine that a husband may be tenant by the courtesy of a trust  estate because the great property of the kingdom be now under trust but be  never final determine till the case of Casburne versus inglis before your  lordship in atkins Hillary term Tr atk where you hold a husband may be tenant  by the courtesy of a equity of redemption this will not affect the present  case because here the intention of the testator be to take from the husband  all power of this estate and that he shall have nothing to do with it suppose  in this case a legal conveyance be direct to be make the trustee must convey  to person in trust for her life for her sole and separate use in the case of  Bennet versus Davis p wms there be no trustee interpose and yet the master of  the roll hold the husband to be a trustee for the heir therefore the court  will never hold the husband to be tenant by the courtesy contrary to the plain  intention of the testator and notwithstanding he have place trustee here to  prevent his be so atkins er p Mr attorney general be reply first as to the  surplus interest of the eight thousand pound the maintenance be not give out  of the interest of the eight thousand pound but out of the general estate for  not a word be say out of what fund it shall arise and if this eight thousand  pound be sever which it may be by this court and not produce any interest yet  the infant be entitle to maintenance notwithstanding and there be no  presumption that the testator intend this interest shall accumulate for the  benefit of the infant next as to the principal point where she charge all her  estate freehold c with the legacy this depend on two thing first whether  doctor worth intend she shall have this power during her infancy second if he  do intend then whether this will not have be good in law much more in equity  to show first this be the intention of the testator the daughter at this very  time be separate from the husband and absolute refuse to live with he atkins  as to the second thing there be no rule of law that prevent such a intention  from take effect the only one pretend be that a infant can dispose of real  estate at twentyone this be not applicable to the present case but only where  a infant take in his own right and not where he take by a power from another  person as in the instance put by sir Francis more in Lord Buckhursts case of a  custom for a infant to alien at fifteen by feoff a use by this case appear  plain to be declare by a feoff which can not be devise by a will it be say  this do not operate by way of execution of her power but by way of dispose of  her interest her will begin with say in performance of the power c it be a  rule where a person have two way of do a thing and it can be do of e way it  shall be do another ut res to greater extent to be strong how to pass away so  that if it can be dispose of by way of interest yet it shall be a good  disposition by way of power and so lie down in the case of rich versus  Beaumont fa vin pl SC bro p c f bro p c and ed this say Lord chancellor be the  only instance of a case make by the direction of the house of lord for the  opinion of the judge Mr attorney general lie it down that a letter of attorney  to a infant to sell real estate be good and he may sell under that power Lord  chancellor ask if there be any case determine to this purpose Mr attorney  general answer be know of none but go on general principle upon the point of  the eight thousand pound devise to the infant mary Winsmore and whether she  may still claim the real estate he say though a will of real estate by a  infant can be read as a will yet it may be read so far as to show the  intention of the testatrix that she shall not have both the eight thousand  pound and the real estate too and for this purpose atkins cite the case of  noise versus mordant vern and therefore the will have no operation in law do  not make it less a will as to the point of the tenant by the courtesy if the  court be of opinion this be not a good execution of the power yet the husband  can be tenant by the courtesy because in order to comply with the intention of  the testator your lordship will direct the conveyance to be to the separate  use of the wife for life then to trustee to preserve the contingent remainder  which may arise out of the execution of the power and consequent as there be  no estate of inheritance in the wife during the coverture the husband be not  entitle to be tenant by the courtesy Mr wilbraham reply in the cross cause for  the assignee of Winsmore he insist the husband be tenant by the courtesy if  the residue of the interest after the estate for life be not in the wife where  be it the law will not suffer the fee to be in abeyance and Mr solicitor  general admit if the power be not well execute the real estate descend upon  mary Winsmore the infant as heir to her mother I apprehend the mother must  have the inheritance or else what be there to descend upon the infant Lord  chancellor think the principal point entire new take time to consider till the  three of August on which day he give judgement atkins er p Lord chancellor mrs  Winsmore have four kind of estate first a leasehold estate settle on the  marriage of her father and mother by a deed of the three of December make  after marriage but pursuant to a agreement before for the term of ninetynine  year the term expire and be renew on a lease for three life and so stand at  doctor worth death this be a freehold lease come to mrs Winsmore and the  daughter be entitle as a special occupant be a freehold lease descendible and  consequent the husband can have no right nor his assignee as stand in his  place I mention this to lie it out of the case atkins the next kind be the  personal estate that move from Dorothy price the aunt of mrs Winsmore she upon  the that of August make her will and thereby devise several copyhold which be  chattel and leaseholds together with the residue of her real and personal  estate to her niece mary the daughter of doctor William worth and under this  will mrs Winsmore be entitle to about three thousand pound there be no doubt  but this part have survive to the husband and the assignee under the  commission of bankruptcy as stand in his place be entitle and be not affect by  the power in doctor worth will but upon that a question have be make on behalf  of the infant daughter the consideration of which I shall at present postpone  the next kind be the personal estate of dr worth the residue of which be to be  for the separate we of mrs Winsmore and to be at her disposal the rule be  where a personal estate be give to the separate use of a feme covert she be  consider as a feme sole Willats v Cay atk Fettiplace v gorge bro Charles Rep  and may dispose of it and all that accrue upon it stand clear of any objection  because she be above the age of seventeen for several of the book go so far as  to say a infant above fifteen may give personal estate by will the next kind  be the real estate of the father and here the question be whether mrs  Winsmores will be a execution of the power give her under the will of the  father I shall divide it into three question first whether the power have be  well execute second whether the plaintiff in the original cause who claim the  residue of the real estate under the will of mrs Winsmore be entitle in equity  three whether the defendant William Winsmore the bankrupt be entitle to be  tenant by the courtesy of his wife estate there be a child of the marriage the  first be a very considerable question and have never be determine atkins there  be no precedent either in a court of law or equity where it have be hold a  power over real estate execute by a infant be good and as I can find no  precedent for it I will make none as to the general question concern power in  the large sense of the word there be several kind of power infant may execute  as where a infant be a mere instrument or conduitpipe and his interest not  concern Lord coke in his comment on Litt p see say deliver seize be a mere  ministerial act and require no judgement or discretion but though the latter  word be express general the law ancient be not so and in   Litt a Lord coke  himself cite a passage out of the mirror in which it be express say a infant  can be a attorney as in the sense of a attorney in a court of justice he can  be but when we speak of a infant be a attorney it be a good deal different  from these kind of power before the statute of use the power be over the use  therefore all thing necessary to be do over legal estate be do by way of  condition and this be the method of exercise a authority over the legal estate  and at law a infant may perform a condition where it be for his benefit as to  other kind of power by a infant I find no sort of authority it be say a infant  may present to a church what be the reason because a presentation be not a  thing of profit of which the guardian can make any benefit but the strong  ground the law go on be there can be no inconvenience because the bishop be to  judge of the qualification of the clerk present atkins er p it have be say a  infant may declare the use of a fine or common recovery where he suffer it  without a privy seal and the use be good and the fine and recovery shall stand  Bac use atkins why do the law allow it because for want of a remedy for as the  matter of record stand the law suppose he be of full age and will not presume  a judge or commissioner will take the fine upon any other term and the deed to  lead the use be part of the fine shall likewise stand and therefore all this  arise from a want of remedy but it be say a infant may by the custom of ken  and of several manor alien his estate and if he may do it by custom why not by  a power now a custom be law loci and be presume in law to have a reasonable  commencement just the same as if a private act of parliament be make to give a  infant such a power and a custom be law loci it stand as strong upon this as  if a act of parliament have be make for that purpose the case in more have a  resemblance to a power but it be only put by sir Francis more arguendo at the  bar and no authority be cite to support it in brook Abr and roll it be lie  down that if after the stat of h a man seize of land feoff a and b of this to  the use and intent to perform his will and then by his will recite the say  feoff and feoff to stand seize to the say use declare his will to be that the  say feoff and their heir stand of this to the use of I S and the heir of his  body this be a good devise of the by the intention of the devisor though by no  possibility the feoff can stand seize to the say use this case differ very  little from the case put by more which show the land may be devise by custom  but not the use and therefore I take this case not to be law the counsel for  the plaintiff have go further and insist a feme covert may exercise such a  power vide Standford v martial atk and cite the case of rich versus Beaumont  in the house of lord it be so determine in the case of lady travel before Lord  chancellor king so in the common case where a power be give to a woman tenant  for life to execute lease and if so it be argue why not to a infant of the age  of discretion atkins it have be say too that the disability of a feme covert  be not more favour in law than the disability of a infant or be rather a  strong disability in a marginal note in the case of more versus Hussey in hob  and which note be allow to be his own be this observation coverture be not at  commonlaw so far protect as be infancy and some other disability scilicet non  san memory ouster Le mere and imprisonment though a woman covert have no less  judgement than discovert but her disability do not arise for want of reason  and it be upon this ground that the separate examination of a feme covert on a  fine be good because when deliver from her husband her judgement be free vide  har   Litt a note cruise on fine but a infant disability be altogether from  want of capacity   light a the die seize of a seize shall take away the entry  of the wife after the death of her husband as well for that she herself when  sole may have enter and recontinued the possession as also it shall be account  her folly that she will take such a husbandwhich can not enter before the  descent but there if the woman be within age at the time of her take husband  then die seize shall not after the decease of her husband take away her entry  because no folly can be account in her for that she be within ag when she take  husband and after coverture she can enter without her husband vide atk   Litt  b so in   a mary Portingtons case the usage say he have always be upon a  common recovery against husband and wife to examine the wife and to grant a  dedimus power to take her acknowledgement upon examination as in the case of a  fine but a common recovery against a infant although he appear by guardian  shall bind the infant for the infant have not such a dispose power of the land  as the husband and wife have but be utter disable by law to convey or transfer  his inheritance or freehold to other during his minority so that in law there  be a total absolute disability in a infant that by no manner of conveyance can  he dispose of his inheritance atkins er p but then it have be insist here be  no sort of inconvenience for mrs Winsmore be above the age of nineteen be as  discreet as if she have attain the age of twentyone and the court may judge  whether she have discretion enough to execute such a power atkins this be of  such latitude and extent that I own I shall be very sorry as preside in a  court of justice to be entrust with for it do not come in question till after  the death of the infant and no personal inquiry or examination can then he  have of her judgement and discretion for this I shall refer to hob in plead a  age certain must be set down and not leave upon tell twelve penny or measure a  yard of cloth as some book be that the court may judge it a age of discretion  for custom must not abrogate the law of nature the lady will not admit it in  the case of a custom then why shall it in the execution of a power this be the  general reason that determine my opinion and if the law have be otherwise it  must have happen in abundance of instance for power be give to infant to raise  money to make lease c infant come in the course of succession into possession  and yet it have never be hold he can exercise any such power over real estate  and the apply for several private act of parliament show the sense of mankind  in this respect such a application be make in the case of the present sir  Thomas Parkins in the case of Evelyn versus Evelyn p wms the case of Lord  Kilmurray versus doctor grey be more full state than in any other place by the  settlement a power be reserve of charge diverse of the land at any time during  his life with pound a person borrow this sum of the doctor and have execute  his power while a infant die soon after he come of age the plaintiff his son  bring his bill to redeem on payment of the principal sum borrow but the court  decree it on the common term because here be a power give he by act of  parliament to raise the money that and immediate to give security which be  actual do I send for the register book of this case easter term and there it  look as if it be a general power execute by virtue of a private act of  parliament I then send for the record of the act of parliament and there be a  express clause to make all act relate to the settlement or in pursuance of any  power therein good and that notwithstanding his minority they shall be as  valid as if he have attain the age of atkins therefore when Lord Kilmurray  make a settlement with such reservation with the approbation of his trustee  the act of parliament operate upon it take it therefore in general I be of  opinion a infant can execute such a power the next consideration be if there  be any thing particular in this power first as to the pen of the power that  they shall permit and suffer his daughter by any deed or write c notwit her  coverture to give c all his freehold c tan hang the father therefore in view  why to exclude the disability of coverture and this be all he intend to guard  against and if he likewise intend to exclude the disability of infancy he will  have take care equal to express it the daughter at the time of his death be  upward of year of age and though he may think it right to give her this power  during coverture yet not so during her infancy it be plain his view be to  prevent the husband influence and to make all safe during her infancy  therefore from the pen of this power a strong objection arise against her  execute it during infancy for expulsion out One be exclusion of one another  the construction of law on such a power as the present which be couple with a  interest be very different from a naked power over another person estate and  that distinction have be take in the case of feme covert the whole legal  estate here be give to trustee first as to the rend and profit to the use of  mrs Winsmore for life and in the second place to permit and suffer mrs  Winsmore to give and dispose of the land c by deed or will c so that she have  a equitable interest in the land c and the equitable reversion in fee descend  upon her atkins er p atkins if she do not dispose of it where will it vest in  herself if not dispose of by her in her lifetime where will it descend to her  daughter if this then be a power to be exercise over her own inheritance I be  of opinion it be such a power as a infant can exercise but suppose the  execution of the power be bad yet it be say the plaintiff have a equity to  compel the infant to let they take the real estate for she shall not take both  by the will and against the will in general this rule be right and find on  proper premise but a wrong conclusion for this purpose see the case of noise  versus mordant in vern see also morris v burrow atk I be of opinion the infant  in the present case be not to be compel to make her election for the  instrument here be void as to the real estate there be no instance where a  infant have in such a case be compel to make a election for here be proper no  will at all as to the land it be like the case where a man execute a will in  the presence of two witness only and devise his real estate from his heir at  law and the personal estate to the heir at law this be be a good will as to  personal estate yet for want of be execute accord to the statute of fraud and  perjury be bad as to the real estate and I shall in that case be of opinion  that the devisee of the real estate can not compel the heir at law to make  good the devise of the real estate before he can entitle he to his personal  legacy because here be no will of real estate for want of proper form and  ceremony require b the statute but the distinction between this case and that  of noise and mordant be there a father have dispose of his whole estate for  the benefit of his child here mrs win re give her whole real estate from her  child and therefore do not fall within that benevolent equity the court  exercise in that case but what I principal rely on be that here be no  instrument which will pass the real estate the next question be if assignee  the plaintiff in the cross cause as stand in the place of Mr Winsmore the  bankrupt have a right to the rend and profit of mrs Winsmores real estate as  consider he in the light of a tenant by the courtesy atkins I be of opinion Mr  Winsmore can not be consider as tenant by the courtesy under doctor worth will  the rend and profit be to be apply to the sole and separate use of mrs  Winsmore and the trustee who have the fee in all the testator tea estate be to  permit and suffer her to dispose c what be the effect of this the whole legal  estate of the inheritance be in the trustee however it be say a husband may be  tenant by the courtesy of a trust but consider what be necessary to make a  tenant by the courtesy the wife must have the inheritance and there must  likewise a seize in deed in the wife during coverture vide de grey v  Richardson atk it be true she have the inheritance because it descend till the  execution of the power but then the father who estate it be have make the  daughter a feme sole and have give the profit to her separate use therefore  what seize can the husband have during the coverture he can neither come at  the possession nor the profit Robert v Dixwell atk be there then any equitable  seize of the husband nun at all and to admit there be will be direct contrary  to the father intention and therefore neither in law or equity be the husband  tenant by the courtesy another question have be make with regard to the  interest of the pound give by the will of air Winsmore to her daughter I be of  opinion under the circumstance of this case she be not entitle to the interest  the general rule be where legacy be give Payable at a certain time they carry  no interest for interest be for delay of payment and consequent till the day  of payment come no interest be demandable see heath v very atk but I do admit  at the same time where a legacy be give by a father to a child though the  legacy be not Payable but at a certain time yet the court allow interest  atkins er p but in all these case the ground the court go on be give interest  by way of maintenance here mrs Winsmore have allot maintenance for her  daughter from the general fund of her personal estate there be another atkins  thing observable the contingency in her will of the daughter die before I  agree it be a condition subsequent but still it show the view of the testatrix  and that she see it may never be her daughter and therefore to give her  interest will be contrary to the intention of the testatrix there be several  case where this court have make a great stretch to give child interest on  legacy particular Acherley versus Vernon p wms but that go on particular  circumstance therefore I be of opinion she can have no more interest than the  maintenance in the mean time as to the estate leave by mrs Dorothy price the  aunt of mrs Winsmore that must belong to the assignee of Mr Winsmore under the  commission of bankruptcy against he as stand in the place of the husband but  then it be insist as Mr Winsmore have make no provision for his wife or the  issue of the marriage that his assignee shall not be permit to touch this till  they have make some provision for the issue of the marriage and so it be hold  in two case before Lord chancellor Cowper and I be also clear of the same  opinion in the case of Jewson versus Moulson October Tr atk but I can find no  case where the court have do it in the case of assignee of a bankrupt after  the death of the bankrupt wife and here too the issue of the marriage be so  well provide for that I be of opinion the court ought not to make this the  first precedent of it whatever they may do in a case not so circumstance but  the present be not such a case as will incline the court to make a stride  further than any of the former case have go his lordship declare that as to  the real estate devise by the will of doctor worth to his trustee the will of  mrs Winsmore be make during her infancy be not a good execution of the power  relate thereto contain in doctor worth will and that the inheritance of such  real estate be descend to the defendant mary Winsmore the infant who be heir  at law both of mrs Winsmore her mother and of doctor worth and that the  defendant William Winsmore the bankrupt be not entitle to be tenant by the  courtesy thereof atkins he also declare that the leasehold estate comprise in  the settlement make on the marriage of doctor worth with mary price date the d  of December which be now field by lease for life belong to mrs Winsmore by  virtue of the settlement and on her death come to the infant her daughter and  heir and therefore direct both bill so far as they seek any relief touch the  say leasehold estate or touch the real estate of doctor worth to be dismiss  without cost he also declare that the residue of doctor worth personal estate  be give by his will in trust for the separate use of mrs Winsmore be not  subject to die debt power or control of her husband and also the rend and  profit of doctor worth real estate devise to her separate use accrue during  her life and the profit and proceed of both these fund ought to be consider as  the separate personal estate of mrs Winsmore not subject to the debt or power  of her say husband and that the same be well dispose of by mrs Winsmore she be  above the age of seventeen at the time of make her will and therefore direct  the cross bill bring by the assignee under the commission of bankruptcy  against Mr Winsmore so far as it seek any relief touch the personal estate of  doctor worth or the rend and profit of his real estate to be dismiss without  cost he also declare that the legacy of eight thousand pound give by mrs  Winsmores will to her daughter subject to the contingency therein mention will  not carry interest till the same shall become Payable accord to the will and  that the annual sum thereby respective give for her maintenance ought to be  deem as give in lieu of interest and in the cross cause his lordship also  declare that what the late mrs Winsmore vas entitle to under the will of her  aunt Dorothy price belong to her husband and be now vest in the assignee under  the commission of bankruptcy against he who be the plaintiff in that cause he  also declare that the copyhold estate of Dorothy price though for life yet  atkins er p be by the custom of the manor whereof the same be parcel a chattel  interest the same and also the rend and profit thereof receive by doctor worth  in his lifetime or his executor since his decease ought to be deem part of her  personal estate and bring into the account before the master and it be admit  that the sum of fourteen hundred pound be pay by doctor worth to Mr Winsmore  after his marriage with his wife on account of what she be entitle to he  declare the same ought to be deem as pay in part of the personal estate of  Dorothy price Reg lib a fol