by Sir James Whalley Smythe Gardiner, Bart. No. 1,-hereafter 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 on the 8th of September, 1785,-secondly, to Jane Master, on the 3d of December, *1789. This latter survived the testator. By the first marriage he had issue only one son, James Whalley, who after[*570 wards 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 Jellicoe, born on the 29th of January, 1792, was the eldest.

The state of the family will appear by the pedigree following, 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 other his manors and reputed manors, messuages, lands, tenements, rents, tithes, and hereditaments whatsoever, as well freehold as copyhold and customary, situate, lying, or being in North Fareham, and in the several parishes of South Fareham, Wickham, Titchfield, Bramley, Sherborne, St. John, alias East Sherborne, and Pamber, or any of them, or elsewhere in the said county of Southampton, he having duly surrendered such parts of the said premises as were copyhold or customary to the use of his will, To have and to hold all and singular the said devised premises unto them the said Stephen Barney and William Humphreys and their heirs, To the several uses, intents, and purposes, upon the trusts, and subject to the provisoes and powers thereinafter limited, declared, or expressed concerning the same, that is to say,-subject to certain legacies and annuities, "To the use and behoof of the said Stephen Barney and William *Humphreys and their heirs, in [*572 trust to permit and suffer John Whalley, Esq., son of my late cousin Grace Whalley, deceased, the widow of Robert Whalley, late of the city of Oxford, doctor of physic, for and during the term of his natural life, to receive and take the rents, issues, and profits thereof without impeachment of waste (except in not repairing and maintaining the several messuages and buildings upon the said devised premises, and also except in felling and cutting down timber-trees thereon before the same shall be ripe and at full growth); and, from and immediately after the decease of the said John Whalley, in trust to permit and suffer the first son of the body of the said John Whalley, and the heirs male of the body of such first son lawfully issuing, to receive and take the rents, issues, and profits thereof, without impeachment of waste, except as aforesaid; and, for default of such issue, in trust to permit and suffer the second son of the body of the

said John Whalley, and the heirs male of the body of such second son lawfully issuing, to receive and take the rents, issues, and profits thereof, without impeachment of waste, except as aforesaid; and, for default of such issue, in trust to permit and suffer the third, fourth, fifth, sixth, seventh, and all and every other sons and son of the body of the said John Whalley severally and successively and in remainder one after another, as they and every of them shall happen to be in priority of birth and seniority of age, and the several and respective heirs male of the several and respective bodies and body of all and every such sons and son lawfully issuing, to receive and take the rents, issues, and profits thereof, without impeachment of waste, except as aforesaid, -the elder of such sons and the heirs male of his body issuing being always to be preferred and to take before the younger of such sons and the heirs male of his and their body or bodies issuing: Provided always, and the uses *herein before limited to the said Stephen Barney and William Humphreys and their heirs as aforesaid, in trust for the said [*573 John Whalley for his life, and afterwards for the sons of the said John Whalley and their heirs in tail male, shall cease, determine, and be void when and as soon as the said John Whalley or either of his sons or any issue of either of them which shall be living in the lifetime of the said John Whalley, or in the lifetime of James Whalley, a demye of Magdalen College in the said city of Oxford, second son of my said cousin Grace Whalley, or of Thomas William Whalley, hereinafter named, shall become seised of or entitled for life or in tail to the manors, messuages, lands, tenements, and hereditaments in and by the last will and testament of my late cousin Bernard Brocas, Esq., deceased, limited after the several estates for life or in tail of several persons therein named, to the use of the said John Whalley for his life and then to his first and every other son in tail male successively: But, if the remainders in and by such will of the said Bernard Brocas limited to the use of the said John Whalley for his life, and then to his first and every other son in tail male, shall be barred and destroyed before the said John Whalley or either of his sons, or any issue of either of them, shall become seised of or entitled to the said manors, messuages, lands, tenements, and hereditaments by the said will of the said Bernard Brocas devised as aforesaid, then and in such case the said Stepher Barney and William Humphreys and their heirs shall from thenceforth stand seised of the premises hereby devised to them as aforesaid, to the use and behoof of the said John Whalley for and during the term of his natural life, without impeachment of waste, except in not repairing and maintaining the several messuages and buildings upon the said premises hereby devised, and also except in felling and cutting down timber-trees before the same shall be [*574 ripe and at full growth; and, from and immediately after the determination of that estate, by forfeiture or otherwise, in the lifetime of the said John Whalley, to the use and behoof of the said Stephen Barney and William Humphreys and their heirs for and during the natural life of the said John Whalley, in trust to support and preserve the contingent uses and estates hereinafter limited from being defeated or destroyed, and for that purpose to make entries and bring actions as occasion shall require, but nevertheless to permit the said

John Whalley to receive and take the rents, issues, and profits of the said premises hereby devised during his life; and, from and immediately after the decease of the said John Whalley, to the use and behoof of the first son of the body of the said John Whalley and the heirs male of the body of such first son lawfully issuing; and, for default of such issue, to the use and behoof of the second son of the body of the said John Whalley and of the heirs male of the body of such second son lawfully issuing; and, for default of such issue, to the use and behoof of the third, fourth, fifth, sixth, seventh, and all and every other son and sons of the body of the said John Whalley severally, successively, and in remainder, one after another, as they and every of them shall happen to be in priority of birth and seniority of age, and of the several and respective heirs male of the several and respective bodies and body of all and every such sons and son lawfully issuing, the elder of such sons and the heirs male of his body issuing being always to be preferred and to take before the younger of such sons and the heirs male of his and their body and bodies issuing: And, for default of such issue, or upon any sooner determination of the said trusts by this my will limited and appointed for the benefit of the said John Whalley for life and his sons in tail male, which shall *first happen, my said trustees and their heirs shall from

*575] thenceforth stand seised of the premises hereby devised as aforesaid, to the use and behoof of the said James Whalley for and during the term of his natural life, without impeachment of waste (except in not repairing and maintaining the several messuages and buildings upon the said hereby devised premises, and also except in felling and cutting down timber-trees thereon before the same shall be ripe and of full growth); and, from and immediately after the determination of that estate by forfeiture or otherwise in the lifetime of the said James Whalley, to the use and behoof of the said Stephen Barney and William Humphreys and their heirs for and during the natural life of the said James Whalley, in trust to support and preserve the contingent uses and estates hereinafter limited from being defeated or destroyed, and for that purpose to make entries and bring actions as occasion shall require, but nevertheless to permit the said James Whalley to receive and take the rents, issues, and profits of the said hereby devised premises during his life; and, from and immediately after the decease of the said James Whalley, to the use and behoof of the first son of the body of the said James Whalley, and of the heirs male of the body of such first son lawfully issuing; and, for default of such issue, to the use and behoof of the second son of the body of the said James Whalley, and of the heirs male of the body of such second son lawfully issuing; and, for default of such issue, to the use and behoof of the third, fourth, fifth, sixth, seventh, and all and every other sons and son of the body of the said James Whalley severally, successively, and in remainder, one after another, as they and every of them shall happen to be in priority of birth and seniority of age, and of the several and respective heirs of the several and *576] respective bodies and body of all and every such sons and *son lawfully issuing, the elder of such sons and the heirs male of his body issuing being always to be preferred and to take before the younger of such sons and the heirs male of his and their body and

bodies issuing: And, for default of such issue, to the use and behoof of Thomas William Whalley, of the city of Oxford aforesaid, gentleman, my godson, and third son of my late cousin the said Grace Whalley, for and during the term of his natural life, without impeachment of waste, &c. [with like remainders to his sons and their heirs male]: And, for default of such issue, to the use and behoof of the first daughter of the body of the said John Whalley, and of the heirs male of the body of such first daughter lawfully issuing; and, for default of such issue, to the use and behoof of the second daughter of the body of the said John Whalley, and of the heirs male of the body of such second daughter lawfully issuing; and, for default of such issue, to the use and behoof of the third, fourth, fifth, sixth, seventh, and all and every other the daughters and daughter of the body of the said John Whalley, severally, successively, and in remainder, one after another, as they and every of them shall happen to be in priority of birth and seniority of age, and of the several and respective heirs male of the several and respective bodies and body of all and every such daughters and daughter lawfully issuing, the elder of such daughters and the heirs male of her body issuing being always to be preferred and to take before the younger of such daughters and the heirs male of her and their body and bodies issuing: And, for default of such issue, to the use and behoof of the first daughter of the body of the said James Whalley and the heirs male of the body of such first daughter lawfully issuing; and, for default of such issue, to the use and behoof of the second daughter of the body of the said James Whalley and the heirs male of the body of such *second daughter lawfully issuing; and, for default of such issue, to the use and behoof of the third, fourth, fifth, sixth, [*577 seventh, and all and every other the daughters and daughter of the body of the said James Whalley, severally, successively, and in remainder, one after another, as they and every of them shall happen to be in priority of birth and seniority of age, and of the several and respective heirs male of the several and respective bodies and body of all and every such daughters and daughter lawfully issuing, the elder of such daughters and the heirs male of her body issuing being always to be preferred and to take before the younger of such daughters and the heirs male of her and their body and bodies issuing: [Then followed like remainders to the first and other daughters of Thomas William Whalley and their heirs male, in succession.] Provided always and it is my will that it shall be lawful to and for the said John Whalley and every other person who shall become seised of or entitled to the said hereby devised premises, or the rents and profits thereof, for life, or in tail, and be in the actual possession of the said premises, or in receipt of the rents, issues, and profits thereof by virtue of any of the limitations herein contained, from time to time to make or grant any new lease or leases thereof, or of any part or parts thereof, by indenture or indentures, to any person or persons, for any term or number of years not exceeding twenty-one years, to commence from the making of such lease or leases or from Michaelmas then next, in possession, and not in reversion or by way of future interest, so as upon every such lease there be reserved and made payable, by equal half-yearly payments, during the continuance thereof