case mark versus mark follow Gurnett v wood Mod Eq Abr pl S c comens dig g  fearne count Rem atk S c cite a have issue three son b his old who die in his  lifetime leave a daughter and c and d a devise land to his wife for life and  after her death to d and his heir provide that if c do within three month  after the death of the wife pay to d the sum of pound then the land to remain  to c and his heir c die in the lifetime of the wife the heir of c shall take  advantage of this condition and not the right heir of the testator William  mark have issue three son William his old Nathaniel his second and Daniel his  three son and William the old son die in his father lifetime leave issue only  a daughter the father afterward by his will in write devise the estate in  question to whether his wife for her life and after her death to his son  Daniel and his heir provide that if Nathaniel do within three month after the  death of my wife pay to Daniel his executor or administrator the sum of pound  then the say land shall come to my son Nathaniel and his heir the wife live  several year after and during her life Nathaniel die leave the plaintiff his  heir and the wife die about two year ago the plaintiff bring this bill within  three month after her death pray that upon payment of the pound he may have a  conveyance from the defendant some whereof have mortgage upon the estate make  to they by Daniel and the wife of Daniel by order of court be admit to put in  her answer separate from her husband she insist on a settlement of those land  and as between the several defendant the question precedent in chancery be  which of they have the better title either to the money if that be to come in  lieu of the land or to the land itself in case the payment can now not be  admit and that depend on notice or not notice of the will among themselves but  the principal point be whether this pound be to be pay by Nathaniel within a  limit time and he die before that time come whether his heir at law can now on  payment of the money make a title to those land for it be agree he be not heir  at law to the testator but the daughter of the old son it be argue that the  whole value of the land be but about pound and that the intention of the  testator be to divide it equal between his two young son and that if Nathaniel  have the land he shall pay his brother Daniel pound out of it but whether that  payment can be now make that be whether it be not too late and the time lapse  for payment of it by the death of Nathaniel be the single question it be argue  by sir Thomas powis and sir Robert Raymond that it be not and they cite and  rely on the text of light and the comment of coke thereon   light b b that  where a feoff be make to one and his heir upon condition that if a feoff do  within such a time pay such a sum of money to the feoff c that though the  feoff die before the day that his heir may perform the condition for the four  reason therein mention and principal because a time be limit for the payment  of it and the feoff die before the time as that be the act of God so the feoff  precedent in chancery er p have no wrong do he when the money be pay whether  it be by the feoff or his heir and sir Robert Raymond cite Chan case and the  case of bertie and Falkland Chan case that it be lie down as a rule by my Lord  summer that where the party may be put in as good plight as where the  condition itself be literal perform that this court will relieve though the  letter of it be not strict precedent in chancery perform as payment of money c  but where the condition be collateral as in the principal case there and no  recompense or value can be put on the breach of it there no relief can he have  for the breach of it on the other side it be argue by sergeant Hooper and Mr  mead that the case in   light be but in nature of a mortgage that it be to  relieve against a forfeiture by nonpayment of the money at the day which may  be good even at law much more in this court that there be a wide difference  between a condition precedent and a condition subsequent that that be a  condition subsequent and for revesting of the estate and the condition descend  on the heir and consequent may be perform by he though not name that this be a  condition precedent and for the new creation of a estate in a person who have  no right or title before and be not heir at law that this be personal in  Nathaniel that he have not law in re nor ad remember and can neither have  devise release or extinguish this condition that it be a bare possibility and  he die before it be perform his heir can not make it good but the master of  the roll say this be not a condition at all because that be only such as may  be perform by the party himself from who it move or his heir but this in the  present case be to be perform by a three person dly this be not in the nature  of a remainder to Nathaniel because the devise to Daniel be not in tail but in  fee and a remainder can only be after a estate tail or a less estate but this  be after a fee be a executory devise it may be call a possibility in the large  sense of that word but it be not strict such for nothing be vest in Nathaniel  which he can either grant or release nor do any thing descend to his heir that  heir in this case be not name to take by purchase but by descent that the  reason of their be name be to denote the quantity precedent in chancery of the  estate which Nathaniel be to take not to give they any estate original and  cite Lampats case   and Brett and Rigdens case blow Com but the counsel insist  that the possibility of perform this condition be a interest or right or  scintilla law which vest in Nathaniel himself that he survive the testator and  therefore this differ from Brett and Rigdens case that consequent such right  possibility or interest descend to his heir and may be perform by he as before  the statute de gift the possibility of reverter descend to the heir of the  donor and cite Purefoy and Roger case sand and the earl of ken case cro car  pell and brown case cro James   Matthew man case and some other but the case  be think a matter of great difficulty the master of the roll appoint they to  speak to it again when the court be full afterward in mich term George it be  by the Lord chancellor and master of the roll decree for the plaintiff on  light sect   light and they say that though a condition be not in strictness  of law devisable yet since the statute of use the devisee may take benefit of  it by a equitable construction of that statute and that Nathaniel may have  release or extinguish his right