Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.
Illustrations:
(i) 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.
(ii) 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.
(iii) 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.
(iv) A bequeaths a sum of money to B for life, and directs that upon 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 a 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.
Legal Commentary & Landmark Judgments: Section 113
Section 113 codifies the strict rule governing bequests to unborn persons, enacting that a bequest to an unborn person following a prior interest is void unless it comprises the testator's entire remaining interest.
The substantive effect of this rule is that a testator cannot create a limited, conditional, or life estate in favor of an unborn person. The unborn person must be given the ultimate, absolute, and unencumbered ownership of the property. If a testator attempts to give a life estate to an unborn person with remainder over to someone else, the bequest to the unborn person is void ab initio.
Section 113 mirrors Section 13 of the Transfer of Property Act, 1882. Family patriarchs frequently attempt to tie up ancestral wealth by drafting wills giving life estates to their children, then life estates to their unborn grandchildren, and absolute ownership only to great-grandchildren. Under Section 113, the bequest to the grandchildren is void because it does not convey the whole remaining interest.