Gardiner, Bart, v Jellicoe
| Jurisdiction | England & Wales |
| Judgment Date | 14 March 1865 |
| Date | 14 March 1865 |
| Court | House of Lords |
English Reports Citation: 144 E.R. 1080
IN THE HOUSE OF LORDS.
S. C. 11 H. L. C. 323; 11 E. R. 1357 (with note).
[198] [!n the house of lords.] gardiner, bart., v. jelucok. March 14th, 1865. [S. C. 11 H. L. C. 323; 11 E. E. 1357 (with note).] A. by his will devised ari estate called the Clerk Hill estate to his first son, James, for lifje, remainder to his first and other sons in tail male, with like remainders to his (thp testator'a) second and third sons, Robert and John, for life, and their sons in tai,l male; remainder to the sons of James in tail general, with like remainders to the sons of Robert and John; remainder to the daughters of James in tail male, with like remainders to the daughters of Robert and John; remainder to the daughters of James in tail general, with like remainders tu the daughters of Robert and .John; remainder to the testator's eldest daughter Elizabeth, for life, with remainder to her sons in tail male; remainder to the testator's second and third (laughters and their sous in tail male ; remainder to the testator's own right heirs.-By a shifting clause, -reciting that by the will of Sir W. Gardiner certain estates were limited in trust for the testator's brother J. \Vr. for life, with remainder to his first and other sons in tail male, with remainder to himself (the testator) for life, with remainder to his first and other sons in tail male, with divers remainders over in favour of his (Sir W. Gardiner's) issue; and that it was his will and mind that the Clerk Hill estate should not b|e enjoyed, so long as he might legally thereby prevent it, consistent with the limitations theretofore mentioned in other respects, and before the ultimate remainder or; reversion thereinbefore directed to be limited should take place and ccttiie into possession by any one of his sons or daughters, or their issue, after, such soil or daughter or such their issue should come into possession of the said Gardiner C. B. (N. 3.) 199. GARDINER V. JELLICOE 108 L estate, - -directed that, as often as the Gardiner estate should come into the possession of any of his said sons or daughters, or any of their issue, the person next in remainder according to the limitations thereinbefore mentioned to the Clerk Hill estate after the person or persons who should so come to the possessioti of the Gardiner estate, should be entitled to and come to the possession of the Clerk Hill estate for the estate and interest thereinbefore mentioned and directed to be limited to him other respectively, and so from time to time as often as that the event then in his (the testator's) contemplation might happen, in such 'iimnner .s -if the permit, or persons ho becmnviiy posxexsed of the (fardiner estate had died irr was then di'cul -withoid issue ; and that the uses for which the Clerk Hill estate was thereinbefore directed to be conveyed should accordingly cease, determine, and shift from time to time, so as the said two estates might never as long as he (the testator) might legally prevent the same consistent with the limitations thereinbefore mentioned in other respects, and before the ultimate remainder or reversion thereinbefore directed to be limited thereof should take place and come into actual possession, be holden or enjoyed in possession by any one of his sons or daughters, or their issue, together and at the same time. - By a codicil to his will, the testator, - after reciting that, by the death of his late brother J. W. without issue, he had become entitled for life to the Gardiner estate, under the will of Sir W. Gardiner, with remainder to his first and other sons in tail, with divers remainders over in favour of his issue, by which event the Gardiner estate would upon his (the testator's) deatli descend and come to his eldest son James, - revoked and annulled the limitation iti his will mentioned of the Clerk Hill estate in favour of his said son James ; it being still his will and intention chat the Clerk Hill estate should not be held or enjoyed by any one of his sons or daughters or their issue together with the Gardiner estate, - At the death of the testator, in 1805, his eldest son (James) entered into possession of the Gardiner estate, and in 1807 he suffered a recovery, declaring the uses thereof to himself in fee. - The second son of the testator (Robert) by his guardians (he being then an infant), entered into possession of the Clerk Hill estate ; and, soon after he attained his majority, he filed a bill in Chancery praying that it might be declared that he was entitled to an immediate estate for life in the Clerk Hill estate, with remainder to his first and other sons in tail male ; and, in July, 1814, under a decree of the then Master of the liolls, a conveyance was marie accordingly to Robert for life,! and to his first and other sons successively in tail male, and, in default of aueh issue, to the uses declared by the testator's will. - Robert remained in possession of the Clerk Hill estate down to the time of his death in 1841 ; and, on the death (without issue) of the other two sons of the testator, his (the testator's) eldest daughter (the now defendant) enteied into possession of the Clerk Hill estate under the limitations contained in the will of her father : - Held, by the House of Lords, - affirming the judgments of the Common Pleas and Exchequer Chamber, - that the word "issue" meant only those who would take under the limitations anterior to the devise to " the person next in remainder," and excluding them alone from taking under those limitations : and, consequently, that the effect of the shifting clause was simply to accelerate the next remainder, but not to carry over the estate in a diH'erent class of remainder-men. wias an action of ejectment brought to recover the possession of certain lands in the eoiinty of Lancaster, called " The Clerk Hill estate," which the [199] pluintiff claimed to' be entitled to under the will of his grandfather, Sir James Whalley Smythe Gardiner, iBart., deceased. The cause was tried before Mellor, J., at the Liverpool Spring Assizes, 186^, when it appeared that the Clerk Hill estate was held in fee-simple until his death by Sir James Whalley Smythe Gardiner, Bart., No. 1 (hereinafter called " Sir James Gardiner, the testator"; who up to the 19th of November, 1797, when he came into possession of the Gardiner estate (hereinafter mentioned) was known as "James Whalley, of Clerk Hill." Sir James Gardiner, the testator, was twice married, - first, on the '28th of October, 1784, to Elizabeth Assheton, who died 011 the 8th of September, 1785, - secondly, to Jane Master, an the 3rd of December, 1789. This latter survived the tcstaton By the first marriage he had issue only one son, James Whalley, who afterwards became Sir James Whalley Smythe Gardiner, Bart, (hereinafter called " Sir James Gardiner 1082 GARDINER V. JELLICOB JO C. B. (N. S.) HKJ. No. 2 "). Bj his second marriage, Sir James...
To continue reading
Request your trial
-
Bellew, deceased; O'Reilly v Bellew
... ... Lawes (1) ; and, to the same effect, Harrison v.Round (2) , Gardiner v. Jellicoe (3) ... Applying this test, I am satisfied that this conveyance was not a sale within the ... ...
- Elizabeth J. Jellicoe, - Appellant; Sir John B. W. Smythe Gardiner, - Respondent