brown case Dennis daily et ux appellant mary lynch widow respondent that  August Mews dig v seven a jointure settle on a wife by article previous to the  marriage but to which she be no party will not bar her of dower where a man  devise a moiety of his estate after payment of his debt legacy and portion to  his wife for life this will not bar her of dower but she ought to elect  whether she will insist on her dower or waive it and take under the will viner  vol p can the only estate of which George French Esq father of the appellant  Ellen and first husband of the respondent be absolute seize in fee consist of  about acre of land the rest of his estate be partly land purchase in the name  of other person in trust for himself and partly reversion or remainder in fee  expectant on the determination of estate for life Mr French be thus seize and  entitle make his will date the that of September and thereby devise all his  real and personal estate to his executor in trust for the payment of his debt  legacy and child portion and subject to those trust he devise his real estate  to his old daughter in tail with remainder in tail to his other daughter  successive the testator then give pound apiece to his young daughter Payable  after his debt and other legacy shall be satisfy and subsequent to the payment  of debt legacy and child portion he devise one moiety of his estate to the  respondent his wife during her life and appoint her and several other person  executor of his will the appellant Ellen who be the testator second daughter  become entitle to his estate by virtue of a certain condition or limitation in  his will a marriage be propose by the executor to Dennis Daly sen between her  and the appellant Dennis his son and the estate be on that occasion represent  in a very favourable light and the encumbrance thereon to be inconsiderable  certain article be on the that of April enter into between the executor on  behalf of the appellant Ellen and Daly the father on behalf of the appellant  Dennis for the settlement of this estate and by these article the respondent  who be a party as one of the executor reserve to herself in lieu of dower the  land of Frenchbrooke contain acre though she be only entitle to brown dower of  acre those be all the land which her husband be legal seize of during the  coverture after the execution of these article Mr Daly the father discover  upon enquiry the particular situation of the testator estate and consequent  that he have be great impose upon as well by the reservation to the respondent  in lieu of her dower as by the amount of the encumbrance the interest whereof  exceed the yearly rend of the land much altercation ensue between the party on  this discovery and the marriage of the appellant be for some time suspend but  at length a compromise take place by the executor agree to some alteration in  the article particular that the respondent shall be leave to recover her dower  accord to law and these alteration be express in a endorsement upon the  article the marriage take effect the appellant a considerable time after their  marriage apprehend that all the encumbrance upon the estate be satisfy apply  to the respondent for possession of the land of Frenchbrooke and for a account  of the rend and profit thereof since the testator death but she insist on hold  the same in lieu of her dower the appellant in August exhibit their bill  against the respondent in the court of chancery in Ireland to be relieve in  this manner state that by article previous to her marriage with the testator  she be to have a jointure of only pound per and have bring he no large portion  than pound that she can have no pretence to dower brown er p out of the trust  estate or the remainder expectant on estate for life but be dowable only  accord to law out of such land whereof the testator have the legal estate and  inheritance and that have as a trustee enjoy the land of Frenchbrooke she be  Accountable for the rend and profit thereof the defendant by her answer to  this bill insist that she be as well entitle to dower of a trust as of the  land in which her husband have the legal estate and that by the article make  on the plaintiff marriage the land of Frenchbrooke be reserve to her instead  of dower she admit that there be article precede her marriage with the  testator but where those article be or what provision be thereby make for her  she do not know she also admit that she have only pound for her portion but  insist that be no party to the lastmentioned article she can not be thereby  preclude of her three the defendant soon afterward exhibit her cross bill  against the appellant in order to establish their marriage article and the  provision thereby make for her and to set aside the endorsement on those  article by which she be to have her dower accord to law under pretence that  the same be a imposition on her brown the appellant by their answer to this  bill insist on their minority at the time of perfect these article that they  be neither party or privy thereto and that the person who be party have no  power to charge the appellant ellins estate in any other manner than as the  testator have by his will direct they also insist upon the article make  previous to the testator marriage with the respondent that the provision  thereby make for her be a effectual bar to her claim of dower and that she can  not by a breach of trust make a better provision for herself than she be legal  entitle to both these cause be hear on the that of January when it be decree  that as the say mary Lynch be on her part bind by the article of she shall not  be Accountable for any profit by her receive before that year and therefore it  be refer to a master to state what be the yearly profit of the land whereof  the say George French die seize who have receive the same and how they be  apply also what encumbrance be on the say land and which of they affect the  estate before the title of dower and which after and that in the mean time the  say mary Lynch shall be quiet in the possession of Frenchbrooke from this  decree the present appeal be bring and on behalf of the appellant it be insist  S Cowper r Raymond that the decree be erroneous and ought to be reverse  because the respondent be thereby decree to be bind by the appellant marriage  article whereas it never come in question in the cause whether she be or be  not bind by they but only whether the appellant themselves be thereby bind as  to which question there can be no sufficient reason to decree in the  affirmative in regard the appellant be neither party or privy to those article  but be in fact minor of only sixteen year old at that time it be therefore  neither equitable or just that the respondent by a direct violation of her  trust shall bind the appellant by article which tend to make a better  provision for her than she be entitle to by law that as to the respondent not  be Accountable for any profit by her receive prior to the year there be no  foundation for such a decree either by the will or the article or any other  fact or circumstance in the cause but on the contrary the decree ought to have  direct the respondent to account for those profit from the testator death and  to have ascertain in what manner she shall so account and what allowance shall  be make her for her dower and that she shall account for all she have receive  over and above her dower of those land in which her husband during the  coverture have the legal estate and inheritance and whereof she be dowable by  law on the other side it be argue I Jekyll t powys that the testator have  devise a moiety of his estate in general to the respondent for brown life  after payment of his debt and legacy it be clear his intention though not so  express that in the mean time while the debt and legacy be pay she shall enjoy  at least her own three of the rend of his estate especial as he have make no  other provision for her during the time by he limit for the application of his  rend to the payment of his debt and legacy that she be not only entitle to  dower out of the legal estate but to a equitable equivalent for her dower out  of the trust land and she be express entitle by the will to a moiety of the  rend of the whole estate from the brown er p time that the debt and legacy be  or may be satisfy that the decree be well find in hold the respondent to be  bind by the appellant marriage article inasmuch as she have release her right  of dower and the arrear thereof and submit to take the land of Frenchbrooke in  lieu of it and it will be very hard and unreasonable that she shall be turn  out of the possession of Frenchbrooke which be not a full equivalent for her  dower or three of the testator estate and be strip of her maintenance and  leave destitute of any provision until she shall be establish in the  possession of what be devise to her by the testator will and which possession  the court can not decree to her until it shall appear by the master report  that the debt and legacy charge on the estate be or may be pay and that there  be several precedent in Ireland where the widow of transplanters who in  satisfaction of their old estate have land give they under the government of  Oliver Cromwell by transplantation and consequent have but equitable estate  have obtain decree in the court of chancery in that kingdom for the three part  of such equitable estate and transplant interest but after hear counsel on the  appeal it be order and adjudge that the decree therein complain of shall be  reverse and it be declare that the respondent be entitle to her dower  notwithstanding the article pretend to be make on her marriage and that the  article or agreement of and the endorsement thereon be void as against the  appellant they be then minor and no party and that the respondent ought to  elect whether she will insist on her right of dower or waive her dower and  claim a moiety of the testator estate after payment of debt legacy and portion  accord to his will jour vol p the counsel for the respondent be then call in  and ask which of the two they do elect for their client but the respondent  herself not be present her counsel decline make any election for her and  desire a few day for that purpose whereupon the house allow the respondent  time till Saturday then next the that of August to return a answer to the  question put to her counsel as aforesaid at which time their lordship will  further decree as shall be just brown this time be afterward enlarge but the  respondent or any on her behalf not have appear to make such election it be  therefore on the that of September order and adjudge that the say mary Lynch  shall account accord to the course of the court of chancery in Ireland for all  the personal estate and profit of the real estate of George French her first  husband which at any time come to her hand or to the hand of any other person  to her use and in take such account she shall have all just allowance and that  when such account be take as to what shall appear to be remain of the estate  of the say George French either real or personal after what be sufficient to  pay and discharge all debt legacy and portion owe from or give by the say  George French the say mary Lynch be well entitle to one full moiety of the  rend and profit of such residue of the estate real and personal during the  term of her natural life by the will of her say husband George French the say  moiety of the rend and profit to be compute and allow to her from the end of  one year next ensue his decease but if the say mary Lynch shall at any time  pen the account so direct or before the confirmation of the report thereof  elect to waive the say profit of the moiety which she may claim by the will of  her say husband and insist in the court of chancery in Ireland on her right of  dower then the say mary Lynch be decree to pay the cost of the say account so  far as the same have proceed before she shall so make her election and that  she shall be allow one full three of the clear profit of the real estate of  her say husband whereof she be dowable either by law or equity without  prejudice to the point whether the say mary Lynch be dowable of the estate  whereof her say husband be only seize as beneficiary and trust by the usage of  Ireland or the course of equity in that kingdom in such case which the court  of chancery in Ireland be to determine subject to any future appeal and if on  the account to be take as above mention the say mary Lynch shall not have  receive sufficient to satisfy what be now decree to her then the residue of  the estate real and personal of her say husband George French be and shall  remain liable to satisfy and make good to her what shall so remain due but if  it shall appear on such account that the say mary Lynch be over pay what shall  be find due to her accord to this present decree then the say mary Lynch be  decree to pay such surplus so find due from brown er p her to the appellant  and the cost of the suit below and of this appeal other than as before be  particular direct shall be pay and deduct out of the say testator estate so to  be account for jour vol p