1 Cox Eq Cas 324; 29 Eng. Rep. 1186 (Ch. 1787)
Jee v. Audley is a foundational English Chancery decision on the Rule Against Perpetuities (RAP) that students encounter early in the study of future interests.
Does a testamentary class gift that includes potential takers who are the children of unborn persons violate the Rule Against Perpetuities, and may a court rely on the practical improbability of further births to save such a disposition?
At common law, no future interest is valid unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. For class gifts, the all-or-nothing rule applies: if the interest would be invalid as to any possible member of the class, the entire class gift fails. For RAP purposes, a person alive at the relevant time is conclusively presumed capable of having issue regardless of age (the fertile octogenarian presumption). Limitations in favor of the children of unborn persons are void for remoteness.
The court held the disposition invalid insofar as it purported to include the children of the children of living persons, because such interests could vest beyond the perpetuities period. The court refused to consider the improbability of further births due to advanced age; for RAP analysis, the possibility of issue is conclusively presumed. As a result, the class gift failed under the all-or-nothing rule.
Jee v. Audley is a cornerstone of RAP doctrine for three reasons. First, it cements the fertile octogenarian presumption: courts assume perpetual fertility for any living person when applying the RAP, which prevents reliance on real-world improbabilities to save gifts. Second, it reinforces the all-or-nothing rule for class gifts: if the class might include any member whose interest could vest too remotely, the entire class gift fails. Third, it highlights a classic drafting trap—extending gifts to descendants of unborn persons. For law students, the case is an essential reference point for analyzing class gifts, identifying unborn-parent problems, and understanding why modern reforms (wait-and-see, 90-year statutory periods, and saving constructions) evolved to temper the harshness of the common law.