[324] At the Rolls, Sir Lloyd Kenyon. Feb. 14, 1787.

[See Leake v. Robinson , 1817, 2 Mer. 390; Lord Deerhurst v. Duke of St. Albans , 1820, 5 Madd. 272; Bull v. Pritchard , 1826, 1 Russ. 218; Stuart v. Cockerell , 1869, L. R. 7 Eq. 367; Heasman v. Pearse , 1871, L. R. 11 Eq. 534; Bhoobun Mohini Debya v. Hurrish Chunder Chowdry , 1878, L. R. 5 Ind. App. 146; Pearks v. Moseley , 1880, 5 App. Cas. 726. Followed, In re Dawson, Johnston v. Hill , 1888, 39 Ch. D. 155. See In re Wood, Tullett v. Colville , [1894] 3 Ch. 385. Followed, In re Hocking , Michell v. Loe , [1898] 2 Ch. 567.]

Testator gave £1000 to M. and the issue of her body, and in default of such issue he gave the said £1000 to be equally divided between the daughters then living of J. and E. his wife. This devise takes in daughters of J. and E. born after the testator's death, and therefore the limitation is too remote.

Edward Audley, by his will, bequeathed as follows, “Also my will is that £1000 shall be placed out at interest during the life of my wife, which interest I give her during *1188 her life, and at her death I give the said £1000 unto my niece Mary Hall and the issue of her body lawfully begotten, and to be begotten, and in default of such issue I give the said £1000 to be equally divided between the daughters then living of my kinsman John Jee and his wife Elizabeth Jee.”

It appeared that John Jee and Elizabeth Jee were living at the time of the death of the testator, had four daughters and no son, and were of a very advanced age. Mary Hall was unmarried and of the age of about 40; the wife was dead. The present bill was filed by the four daughters of John and Elizabeth Jee to have the £1000 secured for their benefit upon the event of the said Mary Hall dying without leaving children. And the question was, whether the limitation to the daughters of John and Elizabeth Jee was not void as being too remote; and to prove it so, it was said that this was to take effect on a general failure of issue of Mary Hall; and though it was to the daughters of John and Elizabeth Jee, yet it was not confined to the daughters living at the death of the testator, and consequently it might extend to after-born daughters, in which case it would not be within the limit of a life or lives in being and 21 years afterwards, beyond which time an executory devise is void.

On the other side it was said, that though the late cases had decided that on a gift to children generally, such children as should be living at the time of the distribution of the fund should be let in, yet it would be very hard to adhere to such a rule of construction so rigidly, as to defeat the evident intention of the testator in this case, especially as there was no real possibility of John and Elizabeth Jee [325] having children after the testator's death, they being then 70 years old; that if there were two ways of construing words, that should be adopted which would give effect to the disposition made by the testator; that the cases, which had decided that after-born children should take, proceeded on the implied intention of the testator, and never meant to give an effect to words which would totally defeat such intention.

The cases mentioned were Pleydell v. Pleydell , 1 P. W. 748. Forth v. Chapman , 1 P. W. 663. Lamb v. Archer, Salk. 225. Rachel's case cited 2 Vern. 60. Smith v. Cleaver , 2 Vern. 38, 59; Pollex. 38. Atkinson v. Hutchinson , 3 P. W. 258. Wood v. Saunders, Pollex. 35. Hughes v. Sayer , 1 P. W. 534. Cook v. Cook , 2 Vern. 545. Horsley v. Chaloner , 2 Vez. 83. Coleman v. Seymour , 1 Vez. 209. Ellison v. Airy , 1 Vez. 111.

Master of the Rolls [Sir Lloyd Kenyon]. Several cases determined by Lord Northington , Lord Camden , and the present Chancellor , have settled that children born after the death of the testator shall take a share in these cases; the difference is, where there is an immediate devise, and where there is an interest in remainder; in the former case the children living at the testator's death only shall take; in the latter those who are living at the time the interest vests in possession; and this being now a settled principle, I shall not strain to serve an intention at the expense of removing the land marks of the law; it is of infinite importance to abide by decided cases, and perhaps more so on this subject than any other. The general principles which apply to this case are not disputed: the limitations of personal estate are void,unless they necessarily vest, if at all, within a life or lives in being and 21 years or 9 or 10 months afterwards. This has been sanctioned by the opinion of judges of all times, from the time of the Duke of Norfolk's case to the present: it is grown reverend by age, and is not now to be broken in upon; I am desired to do in this case something which I do not feel myself at liberty to do, namely to suppose it impossible for persons in so advanced an age as John and Elizabeth Jee to have children; but; if this can be done in [326] one case it may in another, and it is a very dangerous experiment, and introductive of the greatest inconvenience to give a latitude to such sort of conjecture. Another thing pressed upon me, is to decide on the events which have happened; but I cannot do this without overturning very many cases. The single question before me is, not whether the limitations is good in the events which have happened, but whether it was good in its creation; and if it were not, I cannot make it so. Then must this limitation, if at all, necessarily take place within the limits prescribed by law? The words are “in default of such issue I give the said £1000 to be equally divided between the daughters then living of John Jee and Elizabeth his wife.” If it had been to “daughters now living,” or “who should be living at the time of my death,” it would have been very good; but as it stands, this limitation may take in after-born daughters; this point is clearly settled by Ellison v. Airey , and the effect of law on such limitation cannot make any difference in construing such intention. If then this will extended *1189 to after-born daughters, is it within the rules of law? most certainly not, because John and Elizabeth Jee might have children born ten years after the testator's death, and then Mary Hall might die without issue 50 years afterwards; in which case it would evidently transgress the rules prescribed. I am of opinion therefore, though the testator might possibly mean to restrain the limitation to the children who should be living at the time of the death, I cannot, consistently with decided cases, construe it in such restrained sense, but must intend it to take in after-born children. This therefore not being within the rules of law, and as I cannot judge upon subsequent events, I think the limitation void. Therefore dismiss the bill, but without costs.