Sir John Brocas Whalley Smythe Gardiner, Bart v Elizabeth Jane Jellicoe, Widow
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1863 |
| Date | 04 July 1863 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 1265
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 15 C. B. N. S. 170: and in House of Lords, 11 H. L. C. 323. Referred to, Meyrick v. Laws, 1874, L. R. 9 Ch. 243.
sir john brocas whau.ky smythe gardiner, baut., . elizabeth jane jelliooe, Widow. July 12th, 1862. [Affirmed in Exchequer Chamber, 15 C. B. N. S. 170: and in House of Lords, II H. L. C. 32.'!. Referred to, Hayrick v. Lawn, 1874, L. It. 9 Ch. 243.] A. by his will devised an estate called the Clerk Hill estate to his first son, James, for life, remainder to his first and other sons in tail male, with like remainders to his (the testator's) second arid third sons Robert and John for life, and their sons,- 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 tike remainders to the daughters of Robert and John,-remainder to the daughters of James in tail general, with like remainders to the daughters of Robert and John,- remainder to the testator's daughter Elizabeth for life, with remainder to her sons in tail male,-remainder to his second and third daughters and their sons in tail male,-remainder over to the testator's own right heirs.-By a shifting clause,- reciting that by the will of Hir W. Gardiner certain estates were limited in trust for the testator's brother J. W. 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 issue; and that it was his will and mind that the Clerk Hill estate should not be enjoyed, so long as he might legally thereby prevent it, consistent with the limitations1 theretofore mentioned in other reapects, and before the ultimate remainder or reversion thereinbefore directed to be limited should take place and come into actual possession, by any one of his sons or daughters, or their issue, after such son or daughter or such their issue should come into possession of the said Gardiner estate,-directed, that, as often as the Gardiner estate should come to 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 possession 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 or her respectively, and so from time to time as often as that the event then in his (the testator's) contemplation might happen, in such manner as if the person or persons so becoming possessed of the Gardiner estate had died or was then dead without issue ; and that the uses foi- 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 126*5 GARDINER V. JELLIOOE 12 C. B. (N. S.)569. to be limited thereof should take place and come into acted 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,-reciting, that, by the death of hia late brother J. W. without issue, he had become entitled for life to the Gatdiner 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 hi.s (the testator's) death descend and go to his eldest son James,-revoked and annulled the limitation in his will mentioned of the Clerk Hill estate in favour of his said son James; it being still his will and intention that 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 1803, 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 Rolls (Sir W. Grant), a conveyance was made accordingly to his first and other sons successively in tail male, and, in default of such 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 ; arid, after the death (without issue) of the other two sons of the testator, his (the testator's) eldest daughter1 (the now defendant) entered into possession of the Clerk Hill estate under the limitations contained in the will of her father :-Held, by Erie, C. J., Willes, J., and Byles, J., that the defendant was not, in the events which had happened, entitled under her father's will to the Clerk Hill estate; for, that the effect of the shifting-clause was simply to accelerate the next remainder in tail male, and that it did not affect the subsequent estate in tail general (which the plaintiff, the eldest son of the testator's eldest son, claimed), which might descend to persons who could not have acquired the Gardiner estate so as to come within the operation of the shifting-clause.-Held, by Williams, J., that, on the true construction of the shifting-clause, James, the testator's eldest son, must be deemed to have " died without issue," and that consequently the plaintiff, so far as related to the rights of the defendant under the will, must be regarded as a non-existing person. This was an action of ejectment brought to recover the possession of certain lands in the county of Lancaster, called " The Clerk Hill Estate," which the plaintiff claimed to be entitled to under the will of [569] his grandfather, Sir James Whalley Symthe Gardiner, Bart., deceased. The cause was tried before Mellor, J, at the last Spring Assizes at Liverpool. The facts which appeared in evidence were in substance as follows :-The Clerk Hill estate was held in fee-simple until his death by Sir James Whalley Smythe Gardiuer, Bart. No. 1-hereafter called " Sir .fames 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 on the 8th of September, 1785,-secondly, to Jane Master, on the 3rd of December, [570] 1789. This latter survived the testator. By the first marriage he had issue only one son, James Whalley, who afterwards became Sir James Whalley Smythe Gardiner, Bart.,-hereafter called " Sir James Gardiner, No, 2." By his second marriage, Sir James Gardiner, the testator, had four sons,-Robert Whalley, John Master Whalley, William Whalley, and Thomas Whalley,-and several daughters, of whom the now defendant Elizabeth Jane, the widow of Samuel Jellico, horn on the 29th of January, 1792, was the eldest. The state of the family will appear by the pedigree opposite, which is admitted to be correct. Sir William Gardiner, Bart., of Roche Court, in the county of Southampton (the cousin of Sir James Gardiner, the testator), by his will, dated the 20th of January, 1778, devised to Stephen Barney and William Humphreys all his manor or reputed manor of North Fareham, otherwise Roche Court, with the appurtenances, and all [571] grace gardiner, = robert whalley. Cousin of Sir William Gardiner, Bart., who died 1779. Martha Newcombe. = Married July 7, 1787. Died July 19, 1840. Sir John Whalley, Bart, (assumed the additional surnames of Smythe and Gardiner), and died S. P. 18 Nov. 1797. Elizabeth Assheton=Sir James Whalley Smythe Gardiner=Jaue Master | Bart. (No. 1). He assumed the (second wife), additional surnames of Smythe and Married Dec. Gardiner by Royal licence dated 3, 1789, Died. Dec, 18,1797. Died, Aug. 21,1805. Sir James Whalley = Smythe Gardiner, Bart. (No. 2). Born, Sept. 2, 1 785. Married, Aug. 14, 1807. Died, Oct. 22, 1851. = Frances Mosley. Died Dec. 15, 185-5. 1 GARDINER V. JELLICOE 1 Robert elizabeth jane John Master=Hannah Night- William Whalley, Whalley. whalley, the Whalley. ingale. Mar- Born, July 29, Born, eldest daughter. Born, Jan. 1, ried, Dec. 5, 1796. Died, S.P. Oct. 7, Born, Jan. 29, 1793. Died, 1839. March 10, 1860. 1790. Died 1792. Married, Oct. 29, 1861. Thomas Whalley. Other Born, Aug. 18, daughters. 1797. Died, S. P. in April, 1800. Nov. 1841. Oct. 14, 1819. S- P. Defendant. =Samuel Jellicoe. Died, Nov. 9, 1861. 1 1 1 1 1 Frances Frances Barbara James U halley john brocas, A third Whalley Elizabeth. Whalley. Smythe Gardiner now sir john son and Smythe (No. 3). Born, brocas whal- two other Gardiner. Sept. 5, 1812. ley smythe daughters. Born, May Died, Oct. 11, gardiner, 8, 1808. 1837, S. P. Bart. Born, Died, May March 18, 23, 1808. 1814. Plaintiff. 1 1 Samuel James Other sons James Streynsham Gardiner Jellicoe, and daughters. Whalley, their only her eldest son. child. Born Dec. Born, May 27, 7, 1840. Died, 1823. S. P. Sept. 11, 1845. i~* OS 12(58 GARDINER r. .TELLTCOE 12 C. B. (N. 3.) 572. other his manors...
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