comprised in the said last-mentioned indentures of mortgage, and continued in such possession as mortgagee until his death.

67. That, at the time of making his will, and at his death, the said James Whalley Smythe Gardiner (No. 3) was seised or entitled to the reversion expectant on the death of his father Sir James Whalley Smythe Gardiner (No. 2), and subject to then existing mortgages for the sums of 40,000l., 20007, 68677. 18s. 7d., and 15007. (making together the total principal sum of 50,3671. 18s. 7d.) of and in the Roche Court estate, and also of and in so much of the Tackley Park estate as had not been sold as hereinbefore admitted, and of and in the farms called Mills, Castells, and Jemmetts, and also of and in the freehold and copyhold *hereditaments in the parish of Fareham so pur*615] chased and settled in the year 1810 as herein before admitted; and was also absolutely entitled in reversion to the said sums of 30,0721. sterling, and 32007. consols, and 18001. sterling, and would have been entitled in reversion as aforesaid to any hereditaments which ought to have been purchased therewith, according to the trusts of the said settlement of the 31st of July, 1807.

68. The due execution so as to pass freehold estate of the last will and testament of the said James Whalley Smythe Gardiner (No. 3), bearing date the 1st of February, 1837.

69. The due execution so as to pass freehold estate of a codicil to the will of the said James Whalley Smythe Gardiner (No. 3), bearing date the 10th of February, 1837.

70. The death of Dame Martha Gardiner on the 19th of July, 1840. 71. The letters of administration with the said will and codicil of the said James Whalley Smythe Gardiner (No. 3), granted by the Prerogative Court of the Archbishop of Canterbury to the plaintiff Sir John Brocas Whalley Smythe Gardiner.

72. The sale in the year 1842 by the trustees of the said settlement of the 31st of July, 1807, of the said 25001. Consols, and payment of the proceeds of such sale to the administrator of the said James Whalley Smythe Gardiner (No. 3).

73. The sale by the trustees of the will of the said James Whalley Smythe Gardiner (No. 3), in the year 1846, of the farms called Mills and Castells, as well as the remaining portion of so much of the Tackley Park estate as was situate in the parish of Tackley, to William Evetts, Esq., and the conveyance in that year to him and his heirs in fee simple of the hereditaments so sold to him.

*616] *74. The sale by the trustees of the will of the said James Whalley Smythe Gardiner (No. 3), in or previously to the year 1852, to various persons, of the remaining unsold portions of the Tackley Park estate (including a piece of land containing four acres or thereabouts, being all the land situate in the parish of Milton of which Sir John Whalley Smythe Gardiner died seised), and of the farm called Jemmetts, and the conveyance, in or previously to the year 1852, to the respective purchasers, in fee simple, of the several portions of the said hereditaments so sold.

75. The sales by the trustees of the will of the said James Whalley Smythe Gardiner (No. 3) of portions of the Roche Court estate, in the parish of Fareham, that is to say, in or previously to the year 1844 of 10a. 2r. 9p. or thereabouts to the South Western Railroad Com

pany, and in the year 1846 of 1a. 3r. 25p. to William Thresher, Esq., for sums amounting together to 8477. or thereabouts, and the convey ance, in or previously to the year 1846, in fee simple, to the respective purchasers of the several portions of the said hereditaments so sold.

76. That, on the death of the said Sir James Whalley Smythe Gardiner (No. 2) on the 22d of October, 1851, the plaintiff, Sir John Brocas Whalley Smythe Gardiner became seised or entitled, under the will of James Whalley Smythe Gardiner (No. 3), as tenant for his life (but subject to the term of 1000 years thereby limited to trustees, and to the trusts thereof), of or to such portion of the hereditaments devised by the said will as then remained unsold.

77. That the administrator with the will annexed of the said James Whalley Smythe Gardiner (No. 3) has from time to time got in some part of his personal estate (not including any part of the said sums of 30,0727. and 18007.); and that he and the trustees of *the said [*617 will thereout and out of the proceeds of the aforesaid sales so effected by the said trustees, have paid the testator's funeral and testamentary expenses and such of his debts as have come to their knowledge, including the said mortgage-debts of 40,000l., 20007., 68677. 188. 7d., and 15007.; and that the said trustees have, previously to the year 1851, invested 34437. sterling, further part of the moneys coming to their hands by virtue of such sales, in the purchase of freehold and copyhold lands and hereditaments in the parish of Fareham aforesaid, and have caused the freehold portions thereof to be settled to the uses by the will of the said James Whalley Smythe Gardiner (No. 3) declared of the freehold estates thereby devised, and now hold the copyhold portions thereof upon trusts corresponding with such uses; and that the said trustees have from time to time effected renewals of a lease of tithe rent-charges at Fareham held for lives, of which the said James Whalley Smythe Gardiner (No. 3) died possessed or entitled, as mortgagee or otherwise, and have laid out in such renewals the total sum of 11627.; and the said trustees have also invested the surplus proceeds of such sales in the sum of 25371. Consolidated Bank Annuities.

78. The sale by the trustees of the will of the said James Whalley Smythe Gardiner (No. 3) of the beforementioned allotment in Fareham parish, containing 22a. Or. 15p., to William Cawte, the receipt of the purchase-money on or before the 4th of October, 1861, the due execution of the deed of conveyance to the said William Cawte and his heirs by the said plaintiff, Sir John Brocas Whalley Smythe Gardiner, and by William Henry Domville, Esq., one of the trustees, on the 15th of October, 1861, and the execution by Captain Donald M'Leod Mackenzie, the other trustee, before the month of February, 1862.

*79. A contract bearing date the 9th of July, 1861, signed [*618 by the plaintiff, Sir John Brocas Whalley Smythe Gardiner, on behalf of himself and the trustees of the will of the said James Whalley Smythe Gardiner (No. 3), for the sale to William Houghton of 22a. 1r. 10p. of land (being the whole of the hereditaments situate in the parish of Wickham which were comprised in the said settlement of the 31st of July, 1807).

80. That the purchase-moneys for the hereditaments so sold to the said William Cawte and William Houghton have been received by the trustees of the will of James Whalley Smythe Gardiner (No. 3), and have been invested by the said trustees, pursuant to the trusts of the said will, in the purchase of other hereditaments in the parish of Fareham.

81. That the plaintiff, Sir John Brocas Whalley Smythe Gardiner, as tenant for life under the said will of the said James Whalley Smythe Gardiner (No. 3) (subject as aforesaid), was previously to and at the date of the death of the said John Master Whalley on the 27th of October, 1861, in possession or in receipt of the rents and profits of so much of the freehold and copy hold hereditaments devised by the will of the said James Whalley Smythe Gardiner (No. 3), situate in the parishes of Fareham and Wickham, in the county of Southampton, as had not then been sold and conveyed away as above stated, and is still in possession of all the same hereditaments except those sold as above stated to William Cawte, and those agreed to be sold, and which have since been conveyed to or by the direction of the said William Houghton; and is also in possession of divers pieces or parcels of land in the parish of Fareham which have been purchased as above stated with moneys held by the trustees of the will of the said James Whalley *Smythe Gardiner (No. 3), *619] upon trust to be laid out in the purchase of real estate, and which purchased lands have been conveyed to the uses declared by his will of the hereditaments of which the said James Whalley Smythe Gardiner (No. 3) died seised; and that the said hereditaments of which the said Sir John Brocas Whalley Smythe Gardiner is possessed under the said will of the said James Whalley Smythe Gardiner (No. 3) were on the said 27th of October, 1861, and now are, freed and discharged from all charges and encumbrances (by reason of the trustees of the said will having selected for sale the estates in the county of Oxford for the purpose of discharging all such charges and encumbrances, as before admitted), save and except three annuities of 50%. each now payable respectively to Barbara Whalley Smythe Brown, widow (formerly Barbara Whalley Smythe Gardiner), Grace Emily Whalley Smythe Gardiner, and Mary Anna Whalley Smythe, the wife of Montague Burrows, Esq. (formerly Mary Anna Whalley Smythe Gardiner), for their respective lives, under the said will of the said James Whalley Smythe Gardiner (No. 3), and severally secured to the said annuitants under the term of one thousand years limited by the said will; and that the several other annuitants named in the said will and codicil thereto died previously to the said 27th of October, 1861.

82. That, save as aforesaid, the plaintiff, Sir John Brocas Whalley Smythe Gardiner, is not now in possession or entitled to the rents and profits of any of the hereditaments comprised in the said settlement of the 31st of July, 1807.

83. That the plaintiff, Sir John Brocas Whalley Smythe Gardiner, is, under the said will of the said James Whalley Smythe Gardiner (No. 3) now in possession of the freehold and copyhold lands and the *tithes and hereditaments in the parish of Fareham, comprised in the mortgage of the 25th and 26th of June, 1834, from Sir

*620]

James Whalley Smythe Gardiner (No. 2) to James Whalley Smythe Gardiner (No. 3).

A verdict was taken for the defendant, leave being reserved to the plaintiff to move to enter a verdict for him, if, upon the evidence and admissions and the documents put in, the Court should be of opinion that he was entitled to succeed.

Mellish, Q. C., in Easter Term last, accordingly obtained a rule on the part of the plaintiff, calling upon the defendant to show cause why a verdict should not be entered for the plaintiff, pursuant to the leave reserved, on the ground that, in the events which had happened, the plaintiff, under the will and codicil of Sir James Whalley Smythe Gardiner, and the deed of the 21st of July, 1814, was entitled to the estates in question.

Sir Hugh Cairns, Q. C., Manisty, Q. C., and Udall showed cause.— They cited Doe d. Heneage v. Heneage, 4 T. R. 13, Stanley v. Stanley, 16 Ves. 491, Lambarde v. Peach, 4 Drewry 553, Turton v. Lambarde, 1 DeGex, F. & J. 495, Carr v. The Earl of Erroll, 6 East 58, and Jarman on Wills, 3d edit. 253.

Sir Roundell Palmer, S. G., Mellish, Q. C., and Quain were heard in support of the rule. They referred to The Bridgewater Case (Egerton v. The Earl of Brownlow), 4 House of Lords Cases 1, 208, Clavering v. Ellison, 3 Drewry 451, 470, The Earl of Scarborough v. Doe d. Savile, 3 Ad. & E. 897, 965 (E. C. L. R. vol. 30), 6 N. & M. 884 (E. C. L. R. vol. 36), Lambarde v. Peach, 4 Drewry 553, Morrice v. Langham, 8 M. & W. 194,† Thornhill v. Hall, 8 Bligh, N. S. *88, Faza[*621 kerly v. Ford, 4 Simons 390, Taylor v. The Earl of Harewood, 3 Hare 372, Tayleur v. Dickenson, 1 Russ. 521, Smith v. Osborne, 6 House of Lords Cases 375, and Fearne's Contingent Remainders 617. Cur, adv. vult.

There being some division of opinion amongst the learned Judges, their judgments were delivered seriatim, as follows:

BYLES, J.-I am of opinion that this rule ought to be made absolute.

The particular estates limited by the will of Sir James Gardiner now under consideration are either estates for life or estates tail. The testator provides against the coalescing in one owner of the possession of those estates with the possession of the estates devised by Sir William Gardiner's will. This he effects by a shifting clause or condition subsequent, to the effect that, if both lands come to the possession of the same person, whether a son or daughter or any of their issue, the estate shall go over to the next in remainder, as if that person had died or was then dead without issue.

If the construction of the will had been res integra, I should have thought that the two branches of this condition, to wit, "had died or was then dead without issue," ought to be read reddendo singula singulis; that is to say, that the words "had died" refer to tenants for life, and the words "was then dead without issue" referred to tenants in tail; as if the testator had said the estate shall go to the next in remainder, as it would have done had the person in possession, being tenant for life, died, or, being tenant in tail, died without issue. This construction is fortified by the observation, *that, throughout the will and codicil, it is the tenant in possession

[*622

who is in terms disqualified, not the tenant in remainder, till he comes into possession. It is the coincidence of the possession of both estates which the testator desires to avoid. Further, the disqualification is to operate in favour of the next in remainder, not against him. Moreover, the terms of the codicil tend to confirm this interpretation. The testator, foreseeing that the two estates will coalesce in possession in his eldest son Sir James Gardiner (No. 2), the first tenant for life under his will, and being desirous, as he says, to make a codicil consistent with his will, revokes his eldest son's life estate, but does not go on to revoke the remainders to the eldest son's issue. Lastly, this distributive construction gives effect to every word in the shifting clause. So construed, the clause contains apt words appropriate to defeat estates for life, if they are to be defeated, and to defeat estates tail, if they are to be defeated.

But, if the shifting clause or condition be not so read, then the mention of the first alternative, "had died," is useless, and the disjunctive particle "or" is equally useless, for, the expression "was then dead without issue" would comprehend every case. Further, this other construction extends the disqualification to persons who are not and never may be in possession, inflicting a prospective forfeiture on the head and representative of the family, without a certain reason for the forfeiture.

But the former and distributive construction (which for the above reasons I should have thought the true one) does not seem to have been the construction put on the will by the Master of the Rolls, Sir William Grant. We have not had the advantage of seeing his judg ment, but can only gather its effect from the decree and the deed settled in conformity therewith. *Any Court, though its juris*623] diction were supreme, would pay the greatest deference to so high an authority: and we, not being a Court of error, but only a Court of co-ordinate jurisdiction, are, I conceive, bound not only to regard it with respect, but to follow it, and to assume that the distributive construction is not the true one. And, even supposing the distributive construction to be the true construction, it is fatal to the plaintiff in this case; because, according to that construction, his right of entry is gone, for, it cannot, at latest, be postponed beyond the death of Robert Whalley, who took under the deed, and died more than twenty years before action brought.

But, assuming the words "had died or was then dead without issue" to apply to any taker of the Clerk Hill estate, whether tenant for life or tenant in tail, who should also come into the possession of the Gardiner estate, then also it seems to me that the rule should be made absolute; for the tenant for life and his issue are only to be considered as struck out and non-existing for the purpose of entitling the person next in remainder to take. That being so, the ultimate remainder to the plaintiff in tail general, following the remainders to the testator's younger sons, and preceding the remainder to the defendant, is not affected by the shifting clause, unless it can operate against him a second time, by reason of his having taken a portion of the estates devised by Sir William Gardiner.

On this second point, I agree with the rest of the Court; and the rule ought in my judgment to be made absolute.