## Facts

- Edward Audley devised £1,000 to be invested, with income to his wife for life.
- On the wife’s death, the will gave the £1,000 to Audley’s niece, Mary Hall, “and the issue of her body lawfully begotten, and to be begotten.”
- The will further provided that “in default of such issue” the £1,000 would be equally divided among the “daughters then living” of Audley’s kinsman John Jee and Jee’s wife Elizabeth.
- When Audley died, his wife was already dead; Mary Hall was unmarried, about 40, and had no children.
- John and Elizabeth Jee were alive, about 70, and had four daughters and no sons.
- The Jee daughters sought equitable protection of their contingent claim to the £1,000 if Mary Hall died without issue.

## Issues

1. Whether the limitation over to the “daughters then living” of John and Elizabeth Jee on “default of such issue” of Mary Hall was void for remoteness under the rule against perpetuities.
2. Whether the class description “daughters then living” included daughters who might be born after the testator’s death, such that vesting could occur beyond the permitted period.

## Decision

- The court held the limitation over to the Jee daughters void for remoteness.
- The phrase “daughters then living” was construed to include any daughters of John and Elizabeth Jee born after the testator’s death who were alive when the gift over would take effect.
- Because the gift over depended on a general failure of issue of Mary Hall and could include after-born class members, the interest might vest outside the permissible perpetuities period.
- The court declined to narrow the language to save the gift based on the practical improbability of additional Jee children.

## Legal Principles

- A future limitation is invalid if it might vest, if at all, later than lives in being at the creation of the interest plus 21 years (with an allowance for gestation in period formulations).
- In a remainder or executory class gift to “children” or “daughters” described generally, the class ordinarily includes members born after the testator’s death who are alive when the class closes at the time of distribution.
- Perpetuities analysis turns on legal possibility of remote vesting, not factual likelihood.
- A gift over on a general failure of issue, if not confined to vest within the perpetuities period, is subject to invalidation for remoteness.

## Conclusion

The court invalidated the gift over to the Jee daughters because the class gift could include after-born daughters and the contingency tied to Mary Hall’s failure of issue could postpone vesting beyond the perpetuities period, rendering the limitation too remote.


Jee v. Audley, 1 Cox 324, 29 Eng. Rep. 1186 (Ch. 1787)