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he would take the whole interest. That if the leaseholds had vested in Mr. Pelham's son, they could not have divested out of him, for letting in an after-born son of the Duke of Newcastle's, as an estate vesting by purchase could never afterwards divest; and it was a strange pretence that the same act, viz. the birth of a son to Mr. Pelham, should vest an estate absolutely in such son, so as to defeat the subsequent limitations, and yet keep it in contingency with respect to the Duke's issue male, so as to vest it in any after born son of his. No precedent, either of law or equity, could be adduced to warrant this notion; whereas the respondent's construction, by keeping all the limitations in contingency till after his Grace's death, fully answered the testator's intent, removed all difficulties, and was free from any sound objection.

For the respondent the Duke of Newcastle, it was said (W. de Grey, J. Browning), that he was willing to procure a new lease of the premises in question, according to the agreement between the appellants and Mr. [217] Gregory; provided he was not on that account put to any further charge than keeping down, during his life, the interest of the fine, fees, and expences on such renewal. And it was submitted, whether if such new lease should be obtained, the fine, fees, and expences thereof ought not to be a charge on the absolute interest in the said leasehold premises, and to be borne by the person or persons who would on the Duke's death be entitled to such absolute interest. But if the House should be of a different opinion on this point, then the Duke submitted, whether he was bound to obtain any such new lease, he not having any interest in the premises in question, longer than for his life.

And for the respondent Mrs. Gregory it was said (A. T. Abdy), that she was ready to perform her testator's agreement for the purchase of the estate in question, according to the terms of that agreement, and on having a good title; but it was hoped, that she should not be compelled to any such performance, until the Duke's claim relative to the fine, fees, and expences of renewing the lease, and the claims of Lord Vane, and the Earl of Darlington, should be settled and determined. And in case the House should be of opinion, that the appellants, or one of them, would be entitled to the estate in question on the Duke's death, without having a son born alive, for the remainder of the term in the lease; and that the principal money to be paid for the fine, fees, and expences of obtaining a renewal of the lease, ought to remain a charge on the premises after his Grace's death; the respondent hoped that a proportionable abatement, on account of such fine, fees, and expences, would be made to her out of the purchase money, and that she should be paid her costs.

After hearing counsel on this appeal, the following questions were put to the Judges:

I. Whether the property of the leasehold estates for years, devised by the will of John, late Duke of Newcastle, vested in Thomas Pelham, the infant son of Henry Pelham, Esq. deceased, subject to the respondent the Duke of Newcastle's interest therein for his life, and the contingency of the said Duke's having a son? II. Whether the property of the said leasehold estates, subject as aforesaid, is transmitted to the representative of the said Thomas Pelham the infant?

And the Lord Chief Baron of the Exchequer and Mr. Justice Denison being present, the Lord Chief Baron delivered their concurrent opinion upon these two questions, in the affirmative: whereupon it was declared, that the leasehold estates for years, devised by the will of John, late Duke of Newcastle, subject to the respondent the Duke of Newcastle's interest therein for his life, and defeasible by the said Duke's having a son, belonged to the appellants, as standing in the place of the said Thomas Pelham, the infant son of Henry Pelham, Esq. deceased; and that the agreement entered into between them and George Gregory, deceased, for the sale of their estate and interest in Shimpling Park, ought to be carried into execution. And it was therefore or-[218]-dered and adjudged, that the decree complained of (except such part thereof, whereby the appellants bill was dismissed with costs against the respondents Lord Vane and the Earl of Darlington) should be reversed; and that such part thereof should be affirmed. And it was further ordered, that the said agreement should be performed and carried into execution; and that a new lease of the said premises called Shimpling Park, should be procured by the appellants for such reversionary term as would make up the residue of the terms in being 31 years, from the date of such new lease, according to the terms of the said agreement, in case such new lease could be obtained; and that the respondent the Duke of Newcastle should, according to the submission in his answer, pay the fine, fees, and expences of such new lease; and that the whole sum to which such fine, fees, and