atkins case Steadman versus pall February a bill bring after a acquiescence of  five year and after a mother death against her representative to set release  aside as undue obtain by her and for a account of his father and grandmother  estate and to be pay his full share thereof the procure release from a person  immediate upon his come of age be always a circumstance to create a suspicion  of unfairness but as there be no particular imposition charge through mean of  the defendant the court will not determine the question as to the unfairness  of the release till the master have take the account of the father personal  estate only the plaintiff grandfather by his will give to the plaintiff late  mother then the wife of Thomas Steadman and her heir several house in Yarmouth  in Thomas Steadman the plaintiff father die intestate leave Elizabeth his  widow and the plaintiff and Elizabeth Steadman his only child very young the  mother take out administration and be seize of such real estate and possess as  administratrix also of a considerable personal estate in she marry the  defendant William Palling on the that of August article of agreement be enter  into between the defendant and the plaintiff mother whereby Elizabeth Steadman  do give and grant unto William Palling during her natural life the interest of  it all her money and the rend of all her estate and this for the maintain the  house and educate our child until Thomas Steadman and Elizabeth Steadman son  and daughter of the above Elizabeth Steadman shall come of full age or be  marry which shall happen first then the say Thomas or Elizabeth shall receive  their just portion of money or estate as be or shall be due to they as lawful  heir to their father but if it shall so happen that the say Elizabeth Steadman  shall die before the above child come to their several fortune then she may  dispose of all her estate and fortune as the say Elizabeth shall think proper  at the beginning of the article Elizabeth Steadman agree to pay to William  Palling five hundred pound on the day of marriage for her portion which be to  remain in the hand of William Palling during his natural life and after his  decease if there be no heir lawful beget by William Palling upon the body of  Elizabeth Steadman then the five hundred pound to return to the say Elizabeth  or her heir note but if there be any such heir then the pound to remain to  they after the defendant decease and the wife be to have no claim to Pallings  real estate the article be draw by the defendant and of his write and the  plaintiff mother take no advice thereon nor lie they before counsel on the d  of February the plaintiff grandmother make her will and give to Elizabeth  Palling the plaintiff mother all her household good c bind atkins er p  mortgage security for money and all other her personal estate to be sell and  dispose of by such parcel and at such time and in such manner as she shall  think fit and out of the money arise by sale thereof to pay her debt and the  residue thereof atkins she will shall be equal pay and divide to and between  Thomas Steadman and Elizabeth Steadman her two grandchild at such time as they  shall several attain their respective age of or soon if my daughter shall  think fit and appoint her sole executrix this will be very short state in the  register book the bequest of the residue be thus express c to pay the clear  overplus to the plaintiff and his say sister equal at their respective age of  year the mother of the plaintiff prove the will and she and the defendant  possess the testatrixs personal estate the plaintiff sister die intestate and  the plaintiff claim a moiety of her personal estate the plaintiff come of age  on the that of June but no inventory be ever exhibit in the ecclesiastical  court of his father personal estate and no account thereof lie before he by  his mother but she represent that his share amount to no more than pound of  his father personal estate and to pound only of his grandmother he be prevail  on ten day after he come of age to sign two several release to the defendant  for the pound and the pound Elizabeth the plaintiff mother have five child by  the defendant but they all die under age in her lifetime and in she die  herself the bill be bring to set aside the release as undue gain and for a  account of the plaintiff father and grandmother personal estate come to the  hand of the plaintiff late mother and that the defendant may pay the plaintiff  his full share thereof and that the pound agree by the article to return to  the plaintiff mother or her heir may be secure for the plaintiff benefit and  that he may be let into the possession of his mother real estate the defendant  insist that as he have child by Elizabeth bear alive he be by the courtesy of  England entitle for life as well to the real estate his wife be seize of in  fee at the time of the marriage as to the real estate which after her marriage  come to her and of which she die seize in fee he further insist that by the  article the reversionary interest expectant on the defendant death in the  pound vest in the defendant child and that he as administrator and  representative of the last survive child be entitle to the principal of the  pound he insist too both the lease be execute in the presence of the plaintiff  own attorney and that the plaintiff acquiesce in the account and never  complain of it till after his mother death be above five year and therefore  the account ought not now to be open atkins Mr attorney general for the  plaintiff insist he be impose upon by the defendant and that the two release  be undue obtain and draw he in to execute they just after be come of age be  such a strong badge of fraud a court of equity will set they aside that the  article be draw by the husband himself without allow the wife to consult with  any person and as he have express exclude her from his real estate it be  therefore natural to suppose she intend to exclude he from any part of her  real estate and that he can in point of law be tenant by the courtesy because  the article have give he during the coverture the estate of the wife for his  life and she have only a remainder and a husband can only be tenant by the  courtesy of such estate as the wife be seize of in possession at the time of  the marriage that as to the five hundred pound as the deed be draw inaccurate  by a person not conversant in the law the court will put such sense upon it as  be most agreeable to the intention of the party and it can be presume they  mean any thing more by the word or her heir than her child that the plaintiff  be entitle to a moiety of his sister share under the grandmother will for he  insist that it be a vest legacy in her at the death of the testatrix and the  time of payment be only postpone to twentyone and therefore transmissible to  the plaintiff as one of her next of kin Mr solicitor general for the defendant  the release be give just after his mother second marriage upon a account  settle between the plaintiff and his mother and the defendant very prudent  decline meddle with it as he know nothing of her first husband affair and the  atkins er p plaintiff acquiesce all the mother lifetime for five year together  be so strong in the defendant favour that the court will not oblige he to open  the account as to the question whether the defendant notwithstanding the  article be entitle to be tenant by the courtesy he say the article only intend  to secure the profit of the wife real estate and interest of her personal to  maintain the house and educate their child and therefore both the real and  personal be blend together as one fund and there be no proviso that the  husband shall depart from his right which in consequence of the marriage he be  entitle to by operation of law atkins as to the five hundred pound the  contingency be if there shall be no child beget but as there be several child  who live many year it vest in they expectant upon the death of the father and  be such a interest as be transmissible but if he be not entitle as their  representative yet the defendant have a just claim to it in his own right for  with regard to personal estate the word heir mean that person who take for  want of the wife disposition and that must be the defendant for as her husband  he be by the civil law consider as the heir and be the person likewise who  take under the statute of distribution as to the question upon the grandmother  will he insist accord to the rule of the court the legacy to the plaintiff and  his sister do not vest till twentyone for the testatrix eoden blow give and  direct the time of payment for it be not by the word a express gift till  twentyone to the grandchild be give in the mean time until they come of age to  their mother Lord chancellor there be several demand comprise in this bill  some relate to the personal estate of the plaintiff father and some of his  grandmother and some to the real estate of his mother and likewise to what he  be entitle at the death of the defendant and this arise upon the construction  of the article which will depend first on though plaintiff equity to be  relieve against the release give by he at his come of age the case stand in a  good deal of obscurity with regard to the demand of a account of his father  personal estate the father die in seven year after the widow intermarries with  the defendant her second husband and article be enter into at that time  nothing more be do till the plaintiff come of age in when a few day after  release be execute consequent obtain from he immediate upon his in n of age  this be always a circumstance which give the court a suspicion of the  unfairness of such release vide oldin v Samborn ante atk vol and there be no  proof at all of any account settle at the time or of any account in write lie  before the plaintiff of his father or grandmother estate but only the  defendant in the schedule to his answer say it amount to a gross sum in the  whole of pound and pound at the time of the father death he leave a widow and  two child why then be not a inventory keep by the mother atkins his executrix  for it be a great imputation on executor or administrator that no inventory be  keep or account deliver in to child when they come of age it be true with  respect to the defendant there be no particular imposition or fraud charge  through his mean for he do not interfere at all but leave it to the plaintiff  mother to settle account with he and the plaintiff beside acquiesce for five  year after the release and until after his mother death without ever make any  objection to the fairness of this transaction which afford a presumption that  the plaintiff do not think himself aggrieve but it appear doubtful whether the  plaintiff have any allowance for what he be entitle to on the share of his  sister under the grandmother will the latter word rely on in the release to  show the plaintiff intend to discharge the demand he have in right of his  sister be too general to be apply to this particular demand of the plaintiff  and the release must be confine secundum to throw under means and ought not to  be extend further what I be incline to do be to direct the master to take a  account of such part of the personal estate of the plaintiff father as the  wife be possess of at the time of her intermarriage with William Palling only  for it will be too hard to extend it as far back as to the death of the first  husband and think it right there shall be this inquiry before I set aside the  release for though there be circumstance that atkins er p induce suspicion yet  be not at all satisfactory to show there be any fraud in the defendant the  next question be as to the grandmother estate and also in regard to the  plaintiff share as the representative of his sister this be a very doubtful  point the rule and distinction be that if a legacy be devise to one general to  be pay or Payable at the age of twentyone or any other age and the legatee die  before that age yet this be such a interest vest in the legatee that the  executor or administrator may sue for and recover it for it be debt is owed in  prsenti though to loosen in going to be the time be annex to the payment and  not to the legacy itself but if a legacy be devisee to a person at twentyone  or if or when he shall attain the age of twentyone and the legatee die before  that age the legacy be lapse the distinction between a legacy to a at or if he  attain and one to a Payable at be recognize by many case see Snell v do you  salk Lampen v Clowberry Charles can Eq ab pl note a Onslow v south Eq ab pl  Stapleton v Cheeles vern Prec Charles SC anon vern paulets case vent Corbett v  palmer Eq ab pl Jennings v look p W duke of chandos v Talbot Cox p W note  cruse v barley p W Fonereau v Fonereau post love v lStrange bro p c and Edward  bro p c goss v Nelson burr Roden v smith Amb monkhouse v Holmes bro Charles  Rep Benyon v Maddison bro Charles Rep hale v Cox bro Charles Rep see Weedon v  fall ante vol in may v wood bro Charles Rep a legacy to two equal to be divide  between they when they shall arrive at be hold to be vest atkins it have be  true say by the defendant counsel that there be no bequest make to the  grandchild but what be contain in the direction of payment the residue thereof  I will shall be equal pay and divide to and between my two grandchild at such  time as they shall several attain their respective age of twentyone or soon if  my daughter shall think fit if it have rest upon the word at such time as they  shall several attain twentyone I shall have be of opinion for the defendant  that the legacy do not vest till then and that it will have be the same thing  as if the testator have say I give it they at the age of twentyone but what be  the mean in of the testatrixs say or soon if my daughter shall think fit not  to hinder the legacy from vest but she consider her daughter as the natural  guardian of her child and leave it the mother discretion to accelerate it if  she think proper and as the testatrix by the whole tenor of her will have  leave the mother a trustee only for the child without give her any power over  the capital of the legacy I be of opinion the legacy vest in the sister of the  plaintiff at the death of the testatrix and transmissible to he as to the  point of tenant by the courtesy all the argument of the husband stand seize  for the use of the wife under the agreement previous to the marriage must be  lie out of the case because it be mere executory and a agreement to be carry  by this court into execution Elizabeth Steadman do give and grant unto William  Palling during her natural life the interest of all her money that and the  rend of all her estate and this for the maintain the house and educate our  child until Thomas Steadman and Elizabeth Steadman son and daughter of the  above Elizabeth Steadman shall come of full age or be marry c the scope and  intent of the article be only to regulate the whole estate of the wife in  right of her first husband as well the produce of the personal as rend of the  real for the maintenance of the house and education of their child and the  word show it intend to comprise the share of the wife child likewise till they  arrive at twentyone but the estate give to the wife be to determine upon their  come of age in short this be nothing more than a contract in what manner the  several fund shall be apply of which their estate consist and be never intend  to abridge the husband atkins right by law and therefore I be of opinion the  defendant William Palling be entitle to be tenant by the courtesy of the  estate his wife be seize of at the time of the marriage and likewise of the  real estate which come to her after the marriage as to the pound Elizabeth  Steadman by the article agree to pay to William Palling vide the word before  the first question in order to determine the meaning be what the party  understand by the word heir most certain they intend child by it throughout  the whole article for in a former part of the article the word as lawful heir  to their father be use in this sense and after his decease if there be no heir  lawful beget by William Palling upon the body of Elizabeth Steadman then the  to return to the say Elizabeth or her heir what be these heir of the body  child and it will make it all void if be to construe it accord to the legal  sense for that will be heir in infinitum the meaning of the word after his  decease if there be no heir lawful beget c be if there be no child in be and  exist of their two body at the time atkins er p of the death of William  Palling then the pound to revert to the say Elizabeth or her heir but the  defendant counsel say the word to Elizabeth or her heir mean it shall go to  Elizabeth if live at the husband death but if dead in his lifetime to the  husband himself he be entitle to the wife effect but I be of opinion they use  the word or her heir in the same sense as when before they mention they as  heir to the father and mean child throughout the agreement Lord chancellor  make the follow order first that the plaintiff bill so far as it seek to  exclude the defendant from be tenant by the courtesy of his late wife real  estate and likewise so far as it seek any account of the defendant late wife  clothes which she have at the time of her death he dismiss and declare that  the plaintiff be entitle to a moiety of his sister share of the personal  estate of the plaintiff grandmother after the death of his sister and it  appear that the share amount to pound his lordship order that atkins the  defendant do pay to the plaintiff pound as his moiety thereof and as to the  relief seek by the plaintiff bill to set aside the release execute by he to  the defendant and his late wife administratrix of the plaintiff father of his  share and interest in his father personal estate either in his own right or in  right of his sister his lordship order that it be refer to a master to inquire  and take a account of what personal estate and effect the plaintiff mother be  possess of at the time of her intermarriage with the defendant and the amount  thereof at that time and his lordship declare that what shall appear she be so  possess of be to be consider as the produce of the personal estate of the  plaintiff late father and order that the master do state what be the value of  the plaintiff share thereof to which he be entitle either in his own right or  as one of the next of kin to his sister and declare that accord to the true  intent and meaning of the marriageagreement between the defendant and his late  wife he be entitle to the interest of pound therein mention as his late wife  portion or so much thereof as her share of her late husband personal estate  amount to during his life and that after his decease the principal thereof  will belong to the plaintiff and order that the master state how much the  defendant late wife share of her former husband personal estate amount to at  the time of the intermarriage between her and the defendant and reserve the  consideration of the relief seek by the bill for set aside the say release  till after the master report Reg lib b fol