regard to re mainders. It is proper to remark that, in the class of cases under consideration, Distinction in a limitation which would as an executory devise be void for remoteness, may be good as a contingent remainder, on account of the necessity, which the rules applicable to contingent remainders impose, of its vesting, if at all, at the instant of the determination of the preceding estate for life. Such an estate, therefore, if limited to a person who was in existence at the death of the testator, necessarily restricts the devise within proper bounds. Thus if lands of which the testator had the legal inheritance be devised to A for life, with remainder in fee to the children of A who shall attain the age of twenty-two, the devise in remainder will be good, because if at the death of A no child has attained the vesting age, the remainder will fail under the doctrine in question; (c) and if any child has attained that age the devise will take effect in favor of such child to the exclusion of any child or children afterwards attaining the prescribed age. (d) with respect to equitable interests. Gift of per [With respect, however, to equitable interests (and though the Rule different authorities extend only to equitable interests by way of remainder in personalty, they must, it is conceived, equally apply to trusts of inheritance, (e) a different rule prevails; as already stated, they await the happening of the event upon which they are limited, notwithstanding the determination of the particular *estate. They are therefore void when that event is too remote; and] the fact that some of the objects eventually composing the class were actually born within the period allowed by the rule of law, will not render the gift valid, quoad those objects. Thus, in Leake v. Robinson, (f) where certain stock and moneys were bequeathed to W. R. R. for life, and after his decease, to the child or children of the said W. R. R. who, being a son or sons, should attain the age of twenty-five, or being a daughter or daughters, attain that age, or be married with consent; and in case the said W. R. R. should happen to die without leaving issue living at the time of his decease, or leaving such, they should all die before any of them should attain twenty-five, if sons, and if daughters, before sonal estate to a class which may comprise objects too remote, void as to all. (c) Fearne, C. R. 4. [Festing v. Allen, 12 M. & Wels. 279; Alexander v. Alexander, 16 C. B. 59. (d) Brackenbury v. Gibbons, 2 Ch. D. 417. See further as to contingent remainders of this kind since 40 and 41 Vict., c. 33, post ch. XXVI. (e) See Blagrove v. Hancock, 16 Sim. 371; Walker v. Mower, 16 Beav. 365, where, however, the trust was executory.] (ƒ) 2 Mer. 363. they should attain such age, or be married as aforesaid, then to the brothers and sisters of the said W. R. R., on their attaining twentyfive, if a brother or brothers, and if a sister or sisters, on such age or marriage as aforesaid. It appeared that five of the brothers and sisters of W. R. R. were born before the testator's death, and it was contended, therefore, that the bequest, though confessedly void as to those born afterwards, was good as to these objects; for that no case had gone the length of deciding, that persons who are capable of taking under a will, should not take, merely because they are joined in a bequest with others who are incapable; but Sir W. Grant, M. R., held, that the bequest was void as to the whole, observing, with his. usual felicity:-"The bequests in question are not made to individuals, but to classes; and what I have to determine is, whether the class can take. I must make a new will for the testator, if I split into portions his general bequest to the class, and say, that because the rule of law forbids his intention from operating in favor of the whole class, I will make his bequests what he never intended them to be, viz. a series of particular legacies to particular individuals; or, what he has as little in his contemplation, distinct bequests, in each instance, to different classes, namely, to grandchildren living at his death, and to grandchildren born after his death." (g) *And even if all the members of the class had happened to be born during the life of the tenant for life, or even in the lifetime of the testator himself, the gift would nevertheless have been absolutely void, as it is an invariable rule that regard is had to possible not actual events, and the fact that the gift might have included objects too remote is fatal to its validity, irrespectively of the event. a living per Gift to a class including a named person. Where the testator has combined with the remote class son in such a manner as to constitute him a member of the class, the gift to him cannot be distinguished from, and therefore shares the fate of, the gift to the other intended objects with which it stands blended and associated. (h) [This conclusion was [(g) The books abound with cases in which the decision in Leake v. Robinson has been followed; it will be sufficient to refer to some of them, Judd v. Judd, 3 Sim. 525; Newman v. Newman, 10 Id. 31; Comport v. Austen, 12 Id. 218; Ring *. Hardwick, 2 Beav. 352; Bull v. Pritchard, 1 Russ. 213, 5 Hare 567; Vawdry v. Geddes, 1 R. & My. 203; Southern v. questioned by a learned judge, (i) who thought the gift to the living person, when associated with a gift to a "class" (all to take as tenants in common,) ought not to fail any more than it would if it had been associated with a gift to other named individuals to take with him as tenants in common. But the conclusion seems inevitable: for in the former case the share of the living person could not be ascertained but by reference to the number of members ultimately included in the class; and this could not be known within due limits. This it was that made the living person one of the class, subject to all the conditions that appertained to that character. Leake v. Robinson shows that it is not the description of the legatees as children or grandchildren that constitutes them a class, but the mode and conditions of the gift. Sir W. Grant there observed, (j) that supposing the distinction made (as was there attempted) between persons capable and persons incapable, there was still the difficulty of adjusting the proportions in which the capable children were to take, and in determining the manner and the period of ascertaining those proportions. only, where the share is ascer tained within legal limits. Storrs v. Benbow. Where this difficulty does not exist, the rule in Leake v. Robinson Void as to some does not generally apply. Thus, in Storrs v. Benbow, (k) amount of each where the testator bequeathed £500 to each child that might be born to either of the children of either of his brothers, it was decided by Lord Cranworth that the gift was valid as to the children of nephews who were born in the testator's lifetime, and void as to the children of the other nephews. He said it was a *mistake to compare the case with Leake v. RobinThe legacy given to one of the former set of children could not be bad because there was a legacy given under a similar description to a person who would not be able to take because the gift was too remote. Void in part only where shares ascer tainable within the period. Griffith v. Pownall. son. Again, in Griffith v. Pownall, (7) A had a power to appoint among all the children of B, begotten and to be begotten, and their issue; and in default, to the children equally. Al the children that B ever had (six in number) were born at the time of the creation of the power, and A appointed that the share which each child of B, begotten and to be begotten, was entitled to in default of [(i) Per Stuart, V. C., James v. Lord Wynford, 1 Sm. & Gif. 58, 59. If the gift were in joint tenancy, would the whole fund accrue to the individual? (j) 2 Mer. 390. (k) 3 D., M. & G. 390. See also Wilkinson v. Duncan, 30 Beav. 111, as to the legacies of £2000; as to the residue the case was like Leake v. Robinson. (1) 13 Sim. 393. appointment, should be held in trust for that child for life, and after its death for its children. Sir L. Shadwell, V. C., held the appointment valid. He said that, if the gift be of the bulk of the property amongst a set of persons collectively, some of whom are within the rule of law as to perpetuity, but the rest of them are not, the gift is void in toto. That in the case before him the gift was not of the bulk of the fund, but the testator merely directed how the share of each daughter should go after her death. If there had been a seventh or eighth daughter, the gift would have been bad as to their children; nevertheless, the gift to the elder children would have been good. Roberts, con The distinction was disregarded in Greenwood v. Roberts, (m) where the testator bequeathed personal property upon trust, Greenwood v. among other things, to pay his brother Thomas an annuity tra. of £200 a year, and after his decease to pay the same to and amongst such of his children as might be then living in equal shares during their respective lives, and at the decease of any of them, he ordered, that so much of the principal or capital stock as had been adequate to the payment of the annuity to which the child so dying had been entitled during his or her life, should be sold, and the produce thereof divided equally amongst the children of him or her so dying, when they should severally attain the age of twenty-one years; he gave them vested interests therein; and further directed that if any of the children of his brother Thomas should at his (Thomas') death be dead and have left issue, such issue should be entitled among them to the same sum as they would eventually have been entitled to had their parents survived Thomas. Thomas survived the testator, and left a son Richard, who was alive at the death of the testator; but it was held by Sir J. Romilly, M. R., that the *children of Richard could not take. He said, "The gift is, in the first instance, distinctly to a class, namely, to such of the children of his brother Thomas as may be then living, and Richard takes a life interest in that bequest solely in his character of one of those children. The gift over after the decease of those children is not confined to such of the children of his brother as should be alive at the testator's decease, and nothing points to Richard more than any other child of Thomas, who might be born after the death of the testator. I am of opinion that I must, upon the expression used by the testator, treat the children of him or her so dying' as another class, and that I cannot, because the testator has directed that (m) 15 Beav. 92. on the death of Thomas the fund is to be equally divided between such of his children as shall be then alive, treat the bequest as if it had been a separate set of bequests to each of such children as eventually constituted the class; and therefore, in my opinion, he has given this annuity to a class to be ascertained at a future period, and after the death of each of the persons constituting that class to another class, some of whom are prohibited by law from taking, by reason of the rule against perpetuities. If I am correct in this view, the rule in Leake v. Robinson must apply. I am of opinion that Richard is neither mentioned nor individually described in the will as a person taking (to use Lord Cottenham's expression, in Roberts v. Roberts,) (m) a separate and individual portion of the annuity bequeathed to Thomas, but that he takes it as one of a class, and that his children intended by the testator to take after his decease, are persons forming part of a class, some of whom are precluded from taking, and consequently that the gift over after his decease is void." Remarks on What constitutes a gift to a class. But Leake v. Robinson appears not to justify the use here made of the word "class." The grandchildren were not all of one class; there were as many separate classes of grandchildren as there were children of Thomas, and although to save repetition the gifts to all these classes were included in one set of words, the gift to each of them was wholly independent of the gifts to the others, its amount having been finally ascertained at the death of Thomas, when the number of his children who survived him or predeceased him leaving issue was known. A number of persons are popularly said to form a class when they can be designated by some general name, as "children," "grandchildren," "nephews;" but in legal language the question whether a gift is one to a class depends not upon these considerations, but upon the mode of gift itself, namely, that it is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons. Thus a bequest of £1000 to the children of A, the eldest child to take one moiety, the younger children the other moiety, is, in ordinary language, a gift to one class of persons, namely, children; in the legal acceptation of the words it is a gift partly to an individual, namely, the eldest child of A, and partly to a class, namely, [(m) 2 Phill. 534.] |