bequest or otherwise, the property shall at that time go to such of them as shall be then alive, and to the representatives of of them who have died since the death of the testator 1. any Illustrations. (a) A bequeaths 1,000 rupees to the children of B' without saying when it is to be distributed among them. B had died previous to the date of the Will, leaving three children 2, C, D, and E. E died after the date of the Will, but before the death of A. C and D survive A. The legacy shall belong to C and D, to the exclusion of the representatives of E. (b) A bequeaths a legacy to the children of B. At the time of the testator's death, B has no children. The bequest is void3. (c) A lease for years of a house was bequeathed to A for his life, and after his decease to the children of B. At the death of the testator, B had two children living, C and D; and he never had any other child. Afterwards, during the lifetime of A, C died, leaving E his executor. D has survived A. D and E are jointly entitled to so much of the leasehold term as remains unexpired. (d) A sum of money was bequeathed to A for her life, and after her decease to the children of B. At the death of the testator, B had two children living, C and D, and after that event, two children, E and F, were born to B. C and E died in the lifetime of A, C having made a Will, E having made no Will. A has died, leaving D and F surviving her. The legacy is to be divided into four equal parts, one of which is to be paid to the executor of C, one to D, one to the administrator of E, and one to F. (e) 4 bequeaths one-third of his lands to B for his life, and after his decease to the sisters of B. At the death of the testator, B had two sisters living, C and D, and after that event another sister E was born. C died during the life of B; D and E have survived B. One-third of A's lands belongs to D, E, and the representatives of C, in equal shares. (f) 4 bequeaths 1,000 rupees to B for life, and after his death equally among the children of C. Up to the death of B, C had not had any child. The bequest after the death of B is void. (9) A bequeaths 1,000 rupees to all the children born or to be born' of B, to be divided among them at the death of C. At the death of the testator, B has two children living, D and E. After the death of the testator, but in the lifetime of C, two other children, F and G, are born to B. After the death of C', This section seems to apply only to vested interests, 4 Cal. 313. 'This includes adopted children, Act XXI of 1870, sec. 6. another child is born to B. The legacy belongs to D, E, F, and G, to the exclusion of the after-born child of B. (h) A bequeaths a fund to the children of B, to be divided among them when the eldest shall attain majority. At the testator's death, B had one child living, named C. He afterwards had two other children, named D and E. E died, but C and D were living when C attained majority. The fund belongs to C, D and the representatives of E, to the exclusion of any child who may be born to B after C's attaining majority'. 1 4 Cal. 673. This section applies to Hindús etc. in the Lower Provinces and in the towns of Madras and Bombay; and in the illustrations 'children' includes 'adopted children.' PART XII. OF VOID BEQUESTS. a particular description, who exist at testator's 99. Where a bequest is made to a person by a particular Bequest to description, and there is no person in existence at the testator's a person by death who answers the description, the bequest is void. Exception. If property is bequeathed to a person described does not as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later death. than the death of the testator, by reason of a prior bequest, or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or if he be dead, to his representatives 1. Illustrations. (a) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator B has no son. The bequest is void. (b) 4 bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon B's death, the legacy goes to C's son 2. (c) 4 bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son; afterwards, during the life of B, a son, named D, is born to C. D dies, then B dies. The legacy goes to the representative of D2. (d) 4 bequeaths his estate of Greenacre to B for life, and at his decease to the eldest son of C. Up to the death of B, C has had no son. The bequest to C's eldest son is void?. (e) 4 bequeaths 1,000 rupees to the eldest son of C', to be paid to him after the death of B. At the death of the testator, Chas no son, but a son is afterwards born to him during the life of 1 This rule must be understood as subject to the restrictions in secs. 100 and 101, see per Wilson J., 9 C. L. R. VOL. I. ce 121. 2 Here the gift is deferred 'by reason of a prior bequest.' Bequest to person not B and is alive at B's death. C's son is entitled to the 1,000 rupees1. 100. Where a bequest is made to a person not in existence existing at at the time of the testator's death, subject to a prior bequest testator's contained in the Will, the later bequest shall be void, unless it death, subject to comprises the whole of the remaining interest of the testator prior bein the thing bequeathed. quest. Illustrations. (a) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator's death, A has no son. Here the bequest to A's eldest son is a bequest to a person not in existence at the testator's death. It is not a bequest of the whole interest that remains to the testator. The bequest to A's eldest son for his life is void 2. (b) A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has daughters, some of whom were not in existence at the testator's death. The bequest to A's daughters comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A's daughters is valid. (c) A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that if any of them marries under the age of eighteen, her portion shall be settled so that it may belong to herself for life, and may be divisible among her children after her death. A has no daughters living at the time of the testator's death, but has daughters born afterwards who survive him. Here the direction for a settlement has the effect, in the case of each daughter who marries under eighteen, of substituting for the absolute bequest to her a bequest to her merely for her life; that is to say, a bequest to a person not in existence at the time of the testator's death of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void. upon (d) A bequeaths a sum of money to B for life, and directs that the death of B the fund shall be settled upon his daughters, so that the portion of each daughter may belong to herself for life, and may be divided among her children after her death. B has no daughter living at the time of the testator's death. In this case the only bequest to the daughters of B is contained in the direction to settle the fund, and this direction amounts to 1 Here the gift is deferred 'other- Sec. 99 applies to Hindús etc. in the Madras and Bombay, Act XXI of 1870. In the illustrations 'son' includes an adopted son, ibid. sec. 6. 2 Here' son' includes adopted son. bequest, to persons not yet born, of a life-interest in the fund, that is to say, of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund upon the daughters of B is void'. perpetui 101. No bequest is valid whereby the vesting of the thing Rule bequeathed may be delayed beyond the lifetime of one or more against persons living at the testator's decease, and the minority of ties". some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong. Illustrations. (a) A fund is bequeathed to A for his life; and after his death to B for his life; and after B's death to such of the sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first attain the age of 25, may be a son born after the death of the testator; such son may not attain 25 until more than 18 years have elapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be delayed beyond the lifetime of A and B, and the minority of the sons of B. The bequest after B's death is void. (b) A fund is bequeathed to 4 for his life, and after his death to B for his life, and after B's death to such of B's sons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons. In this case the sons of B are persons living at the time of the testator's decease, and the time when either of them will attain 25 necessarily falls within his own lifetime. The bequest is valid. (e) A fund is bequeathed to A for his life, and after his death to B for his life; with a direction that after B's death it shall be divided amongst such of B's children as shall attain the age of 18; but that if no child of B shall attain that age, the fund shall go to C. Here the time for the division of the fund must arrive at the latest at the expiration of 18 years from the death of B, a person living at the testator's decease. All the bequests are valid. 1 Sec. 100 applies to Hindús etc. in the Lower Provinces and in the towns of Madras and Bombay, Act XXI of 1870. But it contemplates a power of disposition extending further in time than Hindú law allows, as by that law some one in existence at the testator's own death must be the altimate legatee, West and Bühler's Digest, 3rd ed. p. 224, citing the Tagure case, 9 Ben. 377, and 6 Bom. 38. In deciding questions of remoteness, it is an invariable principle of the English Courts to pay regard to 3 This should be called the rule |