But then it is insisted on , That this Lady hath done all that was consistent with the modesty of a Maiden , and the honour of a Person of her Quality ; and this was owned by the Two Chief Justices . Now here 's no refusal on her part , nor offer from the Lord G. The Act of her Trustees shall never prejudice her ; the Act of the Lord G's . Trustees can never bind him , in a matter of Marriage , which is a personal thing ; then her tender Years and her Sex are to be considered ; here 's a moral impossibility upon her to do more ; she was , as it were , in Custody , she could not travel of her self an 100 Miles against the consent of her Keeper or Guardian ( who was answerable for the Possession of her Person to the Court of Chancery ) to find out the Lord G. to Sollicit and Court him .

Then it is to be consider'd , how Equity is to proceed in this Case : By the Civil Law , or Law Natural , which is the Common Reason or Sense of Mankind in general : In case of a mix'd Act , which requires the concurrence of another person , to be willing and to do that which lies in her power , is all that is required by such a condition ; there 's no Rule of the Common-Law that obliges in this matter , it being a Trust , which the Common-Law cannot intermeddle with ; so that the measure of judging in this Case , must be that of right Reason , which is to fulfil the meaning of Testator as far as may be done by his Heir and Legitary . It can never be presumed that he intended it should be in the Lord Guilford's power ( to whom no Estate is given , ) to deprive his Heir of her Inheritance , or that the Orders of Chancery ( which are irresistible by Infants , especially in the Intervals of Parliament ) should lose her Title to this Inheritance : It can't be presumed that he could foresee these subsequent accidents ; and therefore Equity ought to do that which in Reason he may be thought to have done , in case he had known what afterwards happened .

In all conditions there 's a tacit condition implied , that it be possible ; and this is no condition precedent , for that she was Heir , and there was a trust for her after the Debts paid till the End of the Three Years .

There 's no Precedent for this Decree , because there never was such a case before ; and the Devise over cannot alter the case ; for notwithstanding that , 't is agreed that such accidents may happen , as though that condition be not performed , the Devise over shall not take place .

't is not a setled fundamental Rule in Equity , that Trusts are always to be governed by the strict Rules of the Common-Law , as appears in many instances ; but Reason and Conscience are to guide , as the circumstances of the Case in Question shall happen to be .

It is agreed , that if the Marriage had happened after the 3 years , she should have enjoy'd it ; and yet this is as much the making a new Will as can be in our Case ; 't was as much his Will that it should be within that time , as that it should be at all ; 't was agreed , that if by means of the remainder men the Marriage had been prevented , she should have kept the Estate ; and yet the Words of the Will are as strong , ( if the words must be pursued ) that if there be no Marriage , it shall go over : so that Equity doth not always follow the meaning of the Testator in a Trust according to the Words , but according to Accidents , and the Equity which arises upon them .

In Walter Overbury's Case in the Delegates , in Charles the 2d's time , 't was hel● , That if a single Man , by his Will , gave the Overplus to his Brother , and after Married , and had a Child , that then such Overplus should go to them , because at the time of making the Will he did not forsee that Event , and Equity must dispose of his Estate as he in Reason may be thought to have willed , if the Event had happened before .

But 't is objected , That this concerns a Personal Estate in a Will : And Sir Matthew Hale observed , it belongs ad alienum forum , and in those Cases the Rules of that Law ought to guide ; but I say Trusts do as much belong ad alienum forum , i.e. to a Form different from the Common-Law , as Personal Legacies ; and the Civil-Law holds the same Rule for Inheritances as for Goods .

But 31 Hen . 6. Fitch , Tit . subpaena , pl. 23. and Shelley's Case , 1 rep . 100. is the Case of Land . A Man seized in see , enfeoffs another , and declares the use to his Daughter , and afterwards hath a Son born , the Chancery shall order it to the Son , because of the Intent implied , or the tacit Condition supposed in his declaring the use , i.e. things standing as they are , supposing no Accidents ; now this last destroys the pretence of a Distinction between Land and Goods . Besides , Equity and Reason is the same as to the Meaning and Actions of the Parties , let the Subject-matter of the Bequest be what it will , whether Inheritance or Money .

And the Limitation to the first Son , will be under the same Circumstances as that to the Mother , for 't is her Son , and Mr. Cary's Heir , and 't is a Son by her first Husband , and so supposing the Rules of Reason and Equity , which we contend for , the same will extend to both ; for such first Son by her first Husband will derive from the Mother all that either Heirship , or an equitable , reasonable Construction of this devise of the Trust gives to her : Nor can the Reversal of this Decree be of any dangerous Consequence in any other Cases ; for that this is never like to happen again , and if it should in every Circumstance , it ought in Conscience and Reason to be governed by the same Rule .

For which Reasons it is humbly hoped , That this Sole Daughter and Heir of the Lord Willoughby of Parham , Niece and Sole Heir of the Testator , and one whom he in his Conscience thought should and ought to be his Heir , shall not lose this Inheritance from her self , and Son begotten by the Second Son of a Noble Peer ; when 't is owned she did as much as possible towards a Marriage with the Lord Guilford , and was prevented by a moral Impossibility put upon her by that very Court , under whose Power and Ordering her Person , and Maintenance , and Place of Residence , and Servants , and the like , were ; and under whose Judgment her Estate and Title in question , now are .