case adam cusack appellant Elinor cusack respondent that may see Davies v  Davies Beav c by article on his marriage with his first wife covenant that all  the land which he shall purchase during her life shall descend to or be settle  upon the heir male of her body by he beget No settlement be make pursuant to  these article but c upon his marriage with a second wife settle his estate to  different use hold that the old and only son of the first marriage be entitle  to a specific performance of these article and a conveyance be decree accord  decree of the Irish chancery reverse see the succeed case Adam cusack Esq one  of the judge of the court of common plea in Ireland be seize in fee of certain  land and tenement in the county of meath down Kildare and Dublin of the value  of near pound per and by deedpoll date the that of February declare the use of  several recovery which he have suffer of the premise to be to the use of  himself and Catherine his wife for their life remainder to Robert cusack the  appellant father in tail male with other remainder over and reserve power to  himself to charge any part of the premise in such manner as he shall think fit  and to make lease and to revoke any of the use brown er p Mr cusack by his  will date the that of march charge his land in the county of meath with pound  per and Payable to the say Robert cusack during the widowhood of his say wife  Catherine but in case she marry again then Robert be to have the whole profit  of those land during her life the testator soon afterward die without issue  leave his wife survive brown by certain article date the that of August enter  into between Francis Coghlan Esq of the one part and Robert cusack of the  other part recite a intend marriage between the say Robert cusack and mary the  daughter of the say Francis Coghlan Robert covenant that in consideration of  the marriage and marriageportion he will settle oh the say mary for her  jointure land and tenement of the value of pound per and and in consideration  of such settlement the say Francis Coghlan covenant that he will secure and  pay to the say Robert cusack pound as a portion with his say daughter mary in  manner follow videlicet pound within a month after the jointure shall be  secure pound which cusack owe he be then to be release and the remain pound be  to be pay upon a certain contingency which never happen Robert cusack also  covenant that as well all the real estate which he then have and which shall  thereafter come to he by deed will or otherwise from the say Adam cusack  within the kingdom of Ireland as also all the land and tenement which he shall  purchase during the life of the say mary Coghlan shall descend and come to the  heirsmale to be beget on the body of the say mary by the say Robert and shall  be secure and settle on the say heirsmale by the say Robert cusack as the  counsel of the say Francis Coghlan shall advice the marriage soon afterward  take effect and there be issue of it the appellant and two daughter name  Barbara and Ann Francis Coghlan pay cusack pound part of the marriageportion  and give judgement in the court of exchequer in Ireland for secure the  remainder but no settlement be ever make by Robert cusack in pursuance of the  article in mary the wife of Robert die and in Catherine the widow of Adam also  die whereupon Robert become entitle to all the real estate of Adam under the  above deedpoll and he enter upon and enjoy the same accord in Robert cusack  enter into a treaty of marriage with jane the young daughter of James  Barnewall Esq and apprehend her fortune to be in her own power he promise to  make a settlement for secure her a jointure of pound per and and pound for the  issue of the marriage on the faith of which promise he obtain her consent and  the marriage be soon afterward have without any article or other agreement in  write on that occasion but Robert cusack have by some indirect mean obtain the  article of August from the say Francis Coghlan and cancel the same he and his  wife jane go together to a gentleman at the bar and give he instruction to  prepare a settlement who have advice several fine and recovery to be levy and  suffer of Robert estate and the same be do accord a settlement be prepare and  execute by indenture of lease and release date the d and that of march between  Robert cusack of the first part Dennis dally Robert leigh and Henry Oxborough  esquire of the second part and Christian Borr Esq and Richard Tisdale  gentleman of the three part brown whereby in consideration of a marriage  former have and solemnized between Robert cusack and mary his decease wife and  of a marriageportion of pound secure to be pay to Robert by Francis Caghlan  the father of the say mary and in accomplishment of certain article of  agreement make and perfect between the say Francis Coghlan and Robert cusack  as also in consideration of a marriage then late have between the say Robert  cusack and jane his then wife and of a agreement and promise make by he to her  before marriage and in consideration of pound marriageportion which the say  jane give and secure to Robert on the say promise and agreement and for settle  the land in the blood name and family of the say Robert cusack accord to the  use limit by the say Adam cusack and in pursuance of his last will date the  that of march Robert cusack convey all his estate to dally leigh and Oxborough  and their heir to the follow use videlicet as to the land in the county of  meath and down to the use of the say Christian Borr and Richard Tisdale for a  term of year upon the trust aforementioned remainder as to these and all other  the pre brown er p mouse to the use of the say Robert cusack for life without  impeachment of waste remainder as to one three part of the premise to jane his  wife for life for her jointure and in lieu of dower remainder to Adam cusack  the appellant for life without impeachment of waste remainder to his first and  other son intail male with other remainder over the trust of the year term be  declare to be that the trustee shall receive a clear rend of pound per and for  ten year from the that of December Payable halfyearly and place the same as  receive out at interest and after the expiration of the say ten year then to  receive pound out of the rend for the say year with interest thereof at pound  per cent until pay by pound ayear and also after the say ten year to receive  pound ayear during Robert life out of the rend and profit which pound ayear  and pound and the interest thereof and likewise the say pound ayear during  Robert life be intend for the portion and provision of Robert child by jane  and the premise be also charge with the two several sum of pound and pound for  the portion of Barbara and Ann the two daughter of Robert cusack by his first  wife by other indenture of lease and release date the that and that of August  between James Barnewall and Walter Bagnall and Elinor his wife of the first  part the say Christian Borr and Richard Tisdale of the second part and the say  Robert cusack of the three part recite that by indenture of lease and release  date the d and d of may Barnewall have convey the manor and land of Bremore  etcetera to Walter Bagnall and his heir to the intent inter alian that jane  the wife of the say Robert cusack shall out of the rend and profit of the  premise be pay pound yearly for her maintenance until she be marry and that  she shall for her portion have and be pay on the day of her marriage pound the  say James Barnewall brown and Walter Bagnall and his wife convey to Borr and  Tisdale and their heir certain land parcel of the say manor of Bremore with a  proviso to be void if they or any of they shall pay to Robert cusack pound  yearly for the interest of the say pound be at the rate of pound per cent  during the life of the say James Barnewall and if the say pound be not pay  before the end of a year from the death of Barnewall then his heir executor or  assign shall pay interest for the same at the rate of pound per cent until it  be pay at the time of these settlement the appellant be not above year of age  and difference afterward arise between his father and he on account of his  conversion to the protestant religion he be not permit to have any access to  his father nor be anything allow he for his subsistence so soon therefore as  the appellant have attain the age of and come to the knowledge of the article  he exhibit his bill in the court of chancery in Ireland against his father for  a specific performance of these article but to avoid the consequence of this  suit as well as still further to distress the appellant Robert cusack and his  wife withdraw themselves into England where on the that of October he die  leave issue by jane he second wife two child namely James and the respondent  after the death of cusack jane his widow have waive her jointure bring writ of  dower and recover judgement and obtain possession accord in Trinity term James  cusack and the respondent file their bill in the court of chancery in Ireland  against the appellant and other to have a execution of the trust of the year  term whereupon in Hilary term follow the appellant exhibit his cross bill for  a specific performance of the article make on his mother marriage and to have  the full benefit thereof on the that of June these cause be hear when the  court decree that the settlement of march be a good and reasonable settlement  and well execute and that the plaintiff James and Elinor cusack be thereby  well entitle to have their portion raise out of the land make liable thereto  that the cross bill shall be dismiss and that there shall be no cost on either  side but as to the account and possession pray by the original bill his  lordship take time to consider the next day after make this decree the  plaintiff James cusack die a infant but notwithstanding this the Lord  chancellor on the that of the same month make a further decree whereby it be  refer to the master to take a account of what arrear be due for the pound at  the death of Robert cusack and who receive the same and what money be receive  by the trustee or any employ by they and what security be take by they in  Robert lifetime and that the security so take brown er p together with the  security give by Robert shall go towards discharge of the pound per and during  the life of Robert a injunction be also award to the sheriff of meath brown  and down to put the trustee Borr and Tisdale into possession of the land in  those county until what fall short of the pound per and which become due since  Robert death and the arrear which accrue during his life shall be satisfy and  until they shall out of the profit of the say land receive the pound accord to  the settlement and the trustee shall put the same out at interest to the use  of the settlement but if the defendant Adam shall pay the trustee what remain  due for those sum then the land shall be discharge from the same and he be to  be let into the possession thereof to reverse these decree the defendant Adam  cusack exhibit his bill of review and the principal error thereby assign be  the death of James cusack one of the plaintiff before the last decree be  pronounce and under the age of year and that as the portion do not vest in he  till that age the same become merge for the benefit of the present plaintiff  but the defendant Elinor have by her guardian demurrer to this bill the same  be argue on the that of December when the demurrer be allow and the former  decree affirm the present appeal be therefore bring and on the appellant  behalf it be insist r Raymond S Cowper that a equitable settlement ought to  have be decree in execution of the first article whereby Robert cusack shall  have be but tenant for life with remainder to the first and other son of that  marriage in tail male that it ought not to have be in his power to have bar  his issue male and that the appellant ought to have be relieve against the  cancel of the article which shall in equity have be consider as still remain  in full force that jane the second wife and all the other party who treat  concern her marriage with Robert cusack have notice of the article before the  marriage and even the settlement make afterward and under which the respondent  claim be mention to be make in accomplishment of those article so that all  person claim under Robert come in with full notice of the article and  therefore ought in justice and equity to be bind by they that the settlement  do not appear to be make upon a real and valuable consideration that jane the  widow have recover dower of the whole estate have secure the pound portion and  interest for the respondent her only daughter and also all the trustmoney  which be raise in her husband lifetime and yet seek to raise pound more for  her benefit out of the estate whereby the appellant will be reduce to great  necessity and not have wherewith to support himself his wife and three child  but will be defeat of the whole estate although he be a purchaser of the same  for a real and valuable consideration by virtue of the article the appellant  therefore hope that the decree will be reverse and the settlement adjudge  voluntary and fraudulent that he shall have the full benefit of the article as  if they have not be cancel and a conveyance execute brown pursuant thereto and  that the respondent bill shall be dismiss and the appellant have his cost in  both cause on the other side it be contend e Northey p king that by the  article in question Robert cusack be tenant in tail the word be that the  estate shall come to the heir male of his body which can never be design to  take away his own estate and it will be very unaccountable by guess at  intention to deprive child of their portion and necessary maintenance that a  child of the first venture ought not unless the fact be very plain to run away  with the whole estate from the child of the second that jane or any that be  authorize to act for her have no notice of the article and the recital of they  in the settlement be only presumptive evidence of notice which can hold no  long than till the contrary be prove as in the present case it clear be beside  jane have marry and pay her consideration before any such notice and can not  go back as one agree for a purchase may who have not pay his money but if  notice be at all material in this case it ought to have be notice of the  pretend intent of the party to the article for by have notice of or peruse the  article themselves every body must be of opinion that Robert cusack be tenant  in tail and if he have make a settlement limit a estate tail to himself it  will have be a full execution of the article upon the whole Robert cusack at  the time of make the settlement for brown er p the benefit of the issue of his  second marriage be tenant in tail and have power by law to charge or alien his  estate there be no word in the article on his first marriage which make he  tenant for life only jane the second wife at the time of her marriage have no  notice of the article and the recital of they in the settlement be by the  direction and contrivance of Robert cusack and Francis Coghlan without jane  knowledge or privity nor be she even make a party to that deed as the  settlement now stand there be but a small provision for the respondent the  issue of the second marriage but a plentiful estate for the appellant the  issue of the first marriage whereas if the decree shall be set aside there  will be nothing for the respondent out of her father estate but after hear  counsel on this appeal it be order and adjudge that the decree as to the  several matter therein contain complain of by the appeal shall be reverse and  that the appellant ought to have the benefit of the article of the that of  August make before and in consideration of his father marriage with mary his  mother and be deem and take as tenant in tail male under those article and  hold and enjoy the land tenement and hereditament thereby agree to be settle  upon he and the heir male of his body against all person claim under the  settlement of march make by Robert cusack after his second marriage and that  the trustee of the year term shall at the appellant cost surrender the say  term and all their interest therein to the appellant and deliver up to he  brown the say settlement of march and that all profit arise out of the land  tenement and hereditament limit for the say term of year since the decease of  the say Robert cusack shall be account for to the appellant and that  possession of the say premise shall be forthwith deliver to he and the tenant  thereof shall attorn to he but without prejudice to jane the second wife in  respect of her dower and the court of chancery in Ireland be to give such  direction in pursuance of this order as shall be just jour vol p