Application of certain provisions of Part to a class of wills made by Hindus, etc.
57. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories [of Bangladesh]; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the 1st day of January, 1927, to which those provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such will or codicil.
General application of Part
58. (1) The provisions of this Part shall not apply to testamentary succession to the Property of any Muslim nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any will made before the first day of January, 1866.
(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of Bangladesh applicable to all cases of testamentary succession.
Chapter II
OF WILLS AND CODICILS
Person capable of making wills
59. Every person of sound mind not being a minor may dispose of his property by will.
Explanation 1.-A married woman may dispose by will of any property which she could alienate by her own act during her life.
Explanation 2.-Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
Explanation 3.-A person who is ordinarily insane may make a will during an interval in which he is of sound mind.
Explanation 4.-No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
(i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will.
(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will.
(iii) A, being very feeble and debilitated, but capable of exercising a judgement as to the proper mode of disposing of his property, makes a will. This is a valid will.
Illustrations
(i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will.
(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will.
(iii) A, being very feeble and debilitated, but capable of exercising a judgement as to the proper mode of disposing of his property, makes a will. This is a valid will.
Testamentary guardian
60. A father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority.
Will obtained by fraud, coercion or importunity
61. A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
Illustrations
(i) A falsely and knowingly represents to the testator that the testator's only child is dead, or that he has done some undutiful act and thereby induces the testator to make a will in his, A's, favour; such will has been obtained by fraud, and is invalid.
(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.
(iii) A, being a prisoner by lawful authority, makes his will. The will is not invalid by reason of the imprisonment.
(iv) A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.
(v) A, being of sufficient intellect, if undisturbed by the influence of others, to make a will yet being so much under the control of B that he is not a free agent, makes a will, dictated by B. It appears that he would not have executed the will but for fear of B. The will is invalid.
(vi) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid.
(vii) A being in such a state of health as to be capable of exercising his own judgement and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgement and volition, makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B.
(viii) A, with a view to obtaining a legacy from B, pays him attention and flatters him and thereby produces in him a capricious partiality to A. B, in consequence of such attention and flattery, makes his will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A.
Will may be revoked or altered
62. A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.
Chapter III
OF THE EXECUTION OF UNPRIVILEGED WILLS
Execution of unprivileged wills
63. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the
signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Incorporation of papers by reference
64. If a testator, in a will or codicil duly attested, refers to any other document then actually written at expressing any part of his intentions, such document shall be deemed to form a part of the will or codicil in which it is referred to.
Chapter IV
OF PRIVILEGED WILLS
Privileged wills
65. Any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills are called privileged wills.
Illustrations
(i) A, a medical officer attached to a regiment, is actually employed in an expedition. He is a soldier actually employed in an expedition, and can make a privileged will.
(ii) A is a sea in a merchant-ship, of which he is the purser. He is a mariner, and, being at sea, can make a privileged will.
(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare, and as such can make a privileged will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is lying in harbour. He is, for the purposes of this section, a mariner at sea, and can make a privileged will.
(v) A, an admiral who commands a naval force, but who lives on shore, and only occasionally goes on board his ship, is not considered as at sea, and cannot make a privileged will.
(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make a privileged will.
Mode of making, and rules for executing, privileged wills
66. (1) Privileged wills may be in writing, or may be made by word of mouth.
(2) The execution of privileged wills shall be governed by the following rules:-
(a) The will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested.
(c) If the instrument purporting to be a will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by the testator's directions or that he recognised it as his will.
(d) If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.
(e) If the soldier, airman or mariner has written instructions for the preparation of his will, but has died before it could be prepared and executed, such instructions shall be considered to constitute his will.
(f) If the soldier, airman or mariner has, in the presence of two witnesses, given verbal instructions for the preparation of his will, and they have been reduced into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his will, although they may not have been reduced into writing in his presence, nor read over to him.
(g) The soldier, airman or mariner may make a will by word of mouth by declaring his intentions before two witnesses present at the same time.
(h) A will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged will.
Chapter V
OF THE ATTESTATION, REVOCATION, ALTERATION AND REVIVAL OF WILLS
Effect of gift to attesting witness
67. A will shall not be deemed to insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them.
Explanation.-A legatee under a will does not lose his legacy by attesting a codicil which confirms the will.
Witness not disqualified by interest or by being executor
68. No person, by reason of interest in, or of his being an executor of, a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.
Revocation of will by testator's marriage
69. Every will shall be revoked by the marriage of the maker, except a will make in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
Explanation.-Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property.
Revocation of unprivileged will or codicil
70. No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged will. Afterwards, A, being entitled to make a privileged will, makes a privileged will, which purports to revoke his unprivileged will. This is a revocation.
Effect of obliteration, interlineations or alteration in unprivileged will
71. No obliteration interlineation or other alteration made in any unprivileged will after the execution thereof shall have any effect, except so far as the words or meaning of the will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the will:
Provided that the will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.
Revocation of privileged will or codicil
72. A privileged will or codicil may be revoked by the testator by an unprivileged will or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged will, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
Explanation.-In order to the revocation of a privileged will or codicil by an act accompanied by such formalities as would be sufficient to give validity to a privileged will, it is not necessary that the testator should at the time of doing that act be in a situation which entitles him to make a privileged will.
Revival of unprivileged will
73. (1) No unprivileged will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.
(2) When any will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the will or codicil.
Chapter VI
OF THE CONSTRUCTION OF WILLS
Wording of will
74. It is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom.
Inquiries to determine questions as to object or subject of will
75. For the purpose of determining questions as to what person or what property is denoted by any words used in a will, a Court shall inquire into every material fact relating to the persons who claim to be interested under such will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduce to the right application of the words which the testator has used.
Illustrations
(i) A, by his will, bequeaths 1,000 Taka to his eldest son or to his youngest grandchild, or to his cousin, Mary. A Court may make inquiry in order to ascertain to what person the description in the will applies.
(ii) A, by his will, leaves to B "my estate called Black Acre". It may be necessary to take evidence in order to ascertain what is the subject-matter of the bequest; that is to say, what estate of the testator's is called Black Acre.
(iii) A, by his will, leaves to B "the estate which I purchased of C". It may be necessary to take evidence in order to ascertain what estate the testator purchased of C.
Misnomer or misdescription of object
76. (1) Where the worlds used in a will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name of description shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him, and a mistake in the description of a legatee may be corrected by the name.
Illustrations
(i) A bequeaths a legacy "to Thomas, the second son of my brother John". The testator has an only brother named John, who has no son named Thomas, but has a second son whose name is William. William will have the legacy.
(ii) A bequeaths a legacy "to Thomas, the second son of my brother John". The testator has an only brother, named John, whose first son is named Thomas, and whose second son is named William. Thomas will have the legacy.
(iii) The testator bequeaths his property "to A and B, the legitimate children of C". C has no legitimate child, but has two illegitimate children, A and B. The bequest to A and B takes effect, although they are illegitimate.
(iv) The testator gives his residuary estate to be divided among "my seven children" and, proceeding to enumerate them, mentions six names only. This omission will not prevent the seventh child from taking a share with the others.
(v) The testator, having six grandchildren, makes a bequest to "my six grandchildren" and, proceeding to mention them by their Christian names, mentions one twice over omitting another altogether. The one whose name is not mentioned will take a share with the others.
(vi) The testator bequeaths "1,000 Taka to each of the three children of A". At the date of the will A has four children. Each of these four children will, if he survives the testator, receive a legacy of 1,000 Taka.
When words may be supplied
77. Where any word material to the full expression of the meaning has been omitted, it may be supplied by the context.
Illustration
The testator gives a legacy of "five hundred" to his daughter A and a legacy of "five hundred Taka" to his daughter B. A will take a legacy of five hundred Taka.
Rejection of erroneous particulars in description of subject
78. If the thing which the testator intended to bequeath can be sufficiently identified from the description of it give in the will but some parts of the description do not apply, such parts of the description shall be rejected as erroneous, and the bequest shall take effect.
Illustrations
(i) A bequeaths to B "my marsh-lands lying in Land in the occupation of X". The testator had marsh-lands lying in L but had no marsh-lands in the occupation of X. The words "in the occupation of X" shall be rejected as erroneous, and the marsh-lands of the testator lying in L will pass by the bequest.
(ii) The testator bequeaths to A "my zamindari of Rampur". He had an estate at Rampur but it was a taluq and not a zamindari. The taluq passes by this bequest.
When part of description may not be rejected as erroneous
79. If a will mentions several circumstances as descriptive of the thing which the testator intends to bequeath, and there is any property of his in respect of which all those circumstances exist, the bequest shall be considered as limited to such property, and it shall not be lawful to reject any part of the description as erroneous, because the testator had other property to which such part of the description does not apply.
Explanation.-In judging whether a case falls within the meaning of this section, any words which would be liable to rejection under section 78 shall be deemed to have been struck out of the will.
Illustrations
(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The testator had marsh-lands lying in L, some of which were in the occupation of X, and some not in the occupation of X. The bequest will be considered as limited to such of the testator's marsh-lands lying in L as were in the occupation of X.
(ii) A bequeaths to B "my marsh-lands lying in L and in the occupation of X, comprising 1,000 bighas of lands". The testator had marsh-lands lying in L some of which were in the occupation of X and some not in the occupation of X. The measurement is wholly inapplicable to the marsh-lands of either class, or to the whole taken together. The measurement will be considered as struck out of the will, and such of the testator's marsh-lands lying in L as were in the occupation of X shall alone pass by the bequest.
Extrinsic evidence admissible in cases of patent ambiguity
80. Where the words of a will are unambiguous, but it is found by extrinsic evidence that they admit of applications, one only of which can have been intended by the testator, extrinsic evidence may be taken to show which of these applications was intended.
Illustrations
(i) A man, having two cousins of the name of Mary, bequeaths a sum of money to "my cousin Mary". It appears that there are two persons, each answering the description in the will. That description, therefore, admits of two applications, only one of which can have been intended by the testator. Evidence is admissible to show which of the two applications was intended.
(ii) A, by his will, leaves to B "my estate called Sultanpur Khurd". It turns out that he had two estates called Sultanpur Khurd. Evidence is admissible to show which estate was intended.
Extrinsic evidence inadmissible in case of patent ambiguity or deficiency
81. Where there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of the testator shall be admitted.
Illustrations
(i) A man has an aunt, Caroline, and a cousin, Mary, and has no aunt of the name of Mary. By his will he bequeaths 1,000 Taka to "my aunt, Caroline" and 1,000 Taka to "my cousin, Mary" and afterwards bequeaths 2,000 Taka to "my before-mentioned aunt, Mary". There is no person to whom the description given in the will can apply, and evidence is not admissible to show who was meant by "my before-mentioned aunt, Mary". The bequest is therefore void for uncertainty under section 89.
(ii) A bequeaths 1,000 Taka to leaving a blank for the name of the legatee. Evidence is not admissible to show what name the testator intended to insert.
(iii) A bequeaths to B Taka or "my estate of ". Evidence is not admissible to show what sum or what estate the testator intended to insert.
Meaning of clause to be collected from entire will
82. The meaning of any clause in a will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other.
Illustrations
(i) The testator gives to B a specific fund or property at the death of A, and by a subsequent clause gives the whole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property in A for life, and after his decease in B; it appearing from the bequest to B that the testator meant to use in a restricted sense the words in which he describes what he gives to A.
(ii) Where a testator having an estate, one part of which is called Blank Acre, bequeaths the whole of his estate to A, and in another part of his will bequeaths Black Acre to B, the latter bequest is to be read as an exception out of the first as if he had said "I give Black Acre to B, and all the rest of my estate to A".
When words may be understood in restricted sense, and when in sense wider than usual
83. General words may be understood in a restricted sense where it may be collected from the will that the testator meant to use them in a restricted sense; and words may be understood in a wider sense than that which they usually bear, where it may be collected from the other words of the will that the testator meant to use them in such wider sense.
Illustrations
(i) A testator gives to A "my farm in the occupation of B", and to C "all my marsh-land in L". Part of the farm in the occupation of B consists of marsh-lands in L, and the testator also has other marsh-lands in L. The general words, "all my marsh-lands in L," are restricted by the gift to A. A takes the whole of the farm in the occupation of B, including that portion of the farm which consists of marsh-lands in L.
(ii) The testator (a sailor on ship-board) bequeathed to his mother his gold ring, buttons and chest of clothes, and to his friend, A (a shipmate), his red box, clasp-knife and all things not before bequeathed. The testator's share in a house does not pass to A under this bequest.
(iii) A, by his will, bequeathed to B all his household furniture, plate, linen, china, books, pictures and all other goods of whatever kind; and afterwards bequeathed to B a specified part of his property. Under the first bequest, B is entitled only to such articles of the testator's as are of the same nature with the articles therein enumerated.
Which of two possible constructions preferred
84. Where a clause is susceptible of two meanings according to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred.
No part rejected, if it can be reasonably construed
85. No part of a will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it.
Interpretation of words repeated in different parts of will
86. If the same words occur in different parts of the same will, they shall be taken to have been used everywhere in the same sense, unless a contrary intention appears.
Testator's intention to be effectuated as far as possible
87. The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible.
Illustration
The testator by a will made on his death-bed bequeathed all his property to C D for life and after his decease to a certain hospital. The intention of the testator cannot take effect to its full extent, because the gift to the hospital is void under section 118, but it will take effect so far as regards the gift to C D.
The last of two inconsistent clauses prevails
88. Where two clauses or gifts in a will are irreconcileable, so that they cannot possibly stand together, the last shall prevail.
Illustrations
(i) The testator by the first clause of his will leaves his estate of Rangpur "to A" and by the last clause of his will leaves it "to B and not to A". B will have it.
(ii) If a man at the commencement of his will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.
Will or bequest void for uncertainty
89. A will or bequest not expressive of any definite intention is void for uncertainty.
Illustration
If a testator says "I bequeath goods to A", or "I bequeath to A", or "I leave to A all the goods mentioned in the Schedule" and no Schedule is found, or "I bequeath 'money', 'wheat', 'oil," or the like, without saying how much, this is void.
Words describing subject refer to property answering description at testator's death
90. The description contained in a will of property, the subject of gift, shall, unless a contrary intention appears by the will, be deemed to refer to and comprise the property answering that description at the death of the testator.
Power of appointment executed by general bequest
91. Unless a contrary intention appears by the will, a bequest of the estate of the testator shall be construed to include any property which he may have power to appoint by will to any object he may think proper, and shall operate as an execution of such power; and a bequest of property described in a general manner shall be construed to include any property to which such description may extend, which he may have power to appoint by will to any object he may think proper, and shall operate as an execution of such power.
Implied gift to objects of power in default of appointment
92. Where property is bequeathed to or for the benefit of certain objects as a specified person may appoint or for the benefit of certain objects in such proportions as a specified person may appoint, and the will does not provide for the event of no appointment being made; if the power given by the will is not exercised, the property belongs to all the objects of the power in equal shares.
Illustration
A, by his will, bequeaths a fund to his wife, for her life, and directs that at her death it shall be divided among his children in such proportions as she shall appoint. The widow dies without having made any appointment. The fund will be divided equally among the children.
Bequest to "heirs", etc., of particular person without qualifying terms
93. Where a bequest is made to the "heirs" or "right heirs" or "relations" or "nearest relations" or "family" or "kindered" or "nearest of kin" or "next-of-kin" or a particular person without any qualifying terms, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property.
Illustrations
(i) A leaves his property "to my own nearest relations". The property goes to those who would be entitled to it if A had died intestate, leaving assets for the payment of his debts independently of such property.
(ii) A bequeaths 10,000 Taka "to B for his life, and, after the death of B, to my own right heirs". The legacy after B's death belongs to those who would be entitled to it if it had formed part of A's unbequeathed property.
(iii) A leaves his property to B; but if B dies before him, to B's next of kin; B dies before A; the property devolves as if it had belonged to B, and he had died intestate, leaving assets for the payment of his debts independently of such property.
(iv) A leaves 10,000 Taka "to B for his life, and after his decease to the heirs of C". The legacy goes as if it had belonged to C, and he had died intestate, leaving assets for the payment of his debts independently of the legacy.
Bequest to "representatives," etc., of particular person
94. Where a bequest is made to the "representatives" or "legal representatives" or "personal representatives" or "executors or administrators" of a particular person, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate in respect of it.
Illustration
A bequest is made to the "legal representatives" of A. A has died intestate and insolvent. B is his administrator. B is entitled to receive the legacy, and will apply it in the first place to the discharge of such part of A's debts as may remain unpaid: if there be any surplus B will pay it to those persons who at A's death would have been entitled to receive any property of A's which might remain after payment of his debts, or to the representatives of such persons.
Bequest without words of limitation
95. Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him.
Bequest in alternative
96. Where property is bequeathed to a person with a bequest in the alternative to another person or to a class of persons, then, if a contrary intention does not appear by the will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy.
Illustrations
(i) A bequest is made to A or to B. A survives the testator. B takes nothing.
(ii) A bequest is made to A or to B. A dies after the date of the will, and before the testator. The legacy goes to B.
(iii) A bequest is made to A or to B. A is dead at the date of the will. The legacy goes to B.
(iv) Property is bequeathed to A or his heirs. A survives the testator. A takes the property absolutely.
(v) Property is bequeathed to A or his nearest of kin. A dies in the lifetime of the testator. Upon the death of the testator, the bequest to A's nearest of kin takes effect.
(vi) Property is bequeathed to A for life, and after his death to B or his heirs. A and B survive the testator. B dies in A's lifetime. Upon A's death the bequest to the heirs of B takes effect.
(vii) Property is bequeathed to A for life, and after his death to B or his heirs. B dies in the testator's lifetime. A survives the testator. Upon A's death the bequest to the heirs of B takes effect.
Effect of words describing a class added to bequest to person
97. Where property is bequeathed to a person, and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will.
Illustrations
(i) A bequest is made-
to A and his children,
to A and his children by his present wife,
to A and his heirs,
to A and his heirs of his body,
to A and his heirs male of his body,
to A and his heirs female of his body,
to A and his issue,
to A and his family,
to A and his descendants,
to A and his representatives,
to A and his personal representatives,
to A, his executors and administrators,
In each of these cases, A takes the whole interest which the testator had in the property.
(ii) A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy.
(iii) A bequest is made to A for life and after his death to his issue. At the death of A the property belongs in equal shares to all persons who then answer the description of issue of A.
Bequest to class of persons under general description only
98. Where a bequest is made to a class of persons under a general description only, no one to whom the words of the description are not in their ordinary sense applicable shall take the legacy.
Construction of terms
99. In a will-
(a) the word "children" applies only to lineal descendants in the first degree of the person whose "children" are spoken of;
(b) the word "grandchildren" applies only to lineal descendants in the second degree of the person whose "grandchildren" are spoken of;
(c) the words "nephews" and "nieces" apply only to children of brothers or sisters;
(d) the words "cousins", or "first cousins", or "cousins-german", apply only to children of brothers or of sisters of the father or mother of the person whose "cousins", or "first cousins", or "cousins-german", are spoken of;
(e) the words "first cousins once removed" apply only to children of cousins-german, or to cousins-german of a parent of the person whose "first cousins once removed" are spoken of;
(f) the words "second cousins" apply only to grand-children of brothers or of sisters of the grandfather or grandmother of the person whose "second cousins" are spoken of;
(g) the words "issue" and "descendants" apply to all lineal descendants whatever of the person whose "issue" or "descendants" are spoken of;
(h) words expressive of collateral relationship apply alike to relatives of full and of blood; and
(i) all words expressive of relationship apply to a child in the womb who is afterwards born alive.
Words expressing relationship denote only legitimate relatives or failing such relatives reputed legitimate
100. In the absence of any intimation to the contrary in a will, the word "child", the word "son", the word "daughter", or any word which expresses relationship, is to be understood as denoting only a legitimate relative, or, where there is no such legitimate relative, a person who has acquired, at the date of the will, the reputation of being such relative.
Illustrations
(i) A having three children, B, C and D, of whom B and C are legitimate and D is illegitimate, leaves his property to be equally divided among "my children". The property belongs to B and C in equal shares, to the exclusion of D.
(ii) A, having a niece of illegitimate birth, who has acquired the reputation of being his niece, and having no legitimate niece, bequeaths a sum of money to his nice. The illegitimate niece is entitled to the legacy.
(iii) A, having in his will enumerated his children, and named as one of them B, who is illegitimate, leaves a legacy to "my said children". B will take a share in the legacy along with the legitimate children.
(iv) A leaves a legacy to "the children of B". B is dead and has left none but illegitimate children. All those who had at the date of the will acquired the reputation of being the children of B are objects of the gift.
(v) A bequeaths a legacy to "the children of B". B never had any legitimate child. C and D had, at the date of the will, acquired the reputation of being children of B. After the date of the will and before the death of the testator, E and F were born, and acquired the reputation of being children of B. Only C and D are objects of the bequest.
(vi) A makes a bequest in favour of his child by a certain woman, not his wife. B had acquired at the date of the will the reputation of being the child of A by the woman designated. B takes the legacy.
(vii) A makes a bequest in favour of his child to be born of a woman who never becomes his wife. The bequest is void.
(viii) A makes a bequest in favour of the child of which a certain woman, not married to him, is pregnant. The bequest is valid.
Rules of construction where will purports to make two bequests to same person
101. Where a will purports to make two bequests to the same person, and a question arises whether the testator intended to make the second bequest instead of or in addition to the first; if there is nothing in the will to show what he intended, the following rules shall have effect in determining the construction to be put upon the will:-
(a) If the same specific thing is bequeathed twice to the same legatee in the same will or in the will and again in the codicil, he is entitled to receive that specific thing only.
(b) Where one and the same will or one and the same codicil purports to make, in two places, a bequest to the same person of the same quantity or amount of anything, he shall be entitled to one such legacy only.
(c) Where two legacies of unequal amount are given to the same person in the same will, or in the same codicil, the legatee is entitled to both.
(d) Where two legacies, whether equal or unequal in amount, are given to the same legatee, one by a will and the other by a codicil, or each by a different codicil, the legatee is entitled to both legacies.
Explanation.-In clauses (a) to (d) of this section, the word "will" does not include a codicil.
Illustrations
(i) A, having ten shares, and no more, in the Imperial Bank of India, made his will, which contains near its commencement the words "I bequeath my ten shares in the Imperial Bank of India to B". After other bequests, the will concludes with the words "and I bequeath may ten shares in the Imperial Bank of India to B". B is entitled simply to receive A's ten shares in the Imperial Bank of India.
(ii) A, having one diamond ring, which was given him by B, bequeaths to C the diamond ring which was given by B. A afterwards made a codicil to his will, and thereby, after giving other legacies, he bequeathed to C the diamond ring which was given him by B. C can claim nothing except the diamond ring which was given to A by B.
(iii) A, by his will, bequeaths to B the sum of 5,000 Taka and afterwards in the same will repeats the bequest in the same words. B is entitled to one legacy of 5,000 Taka only.
(iv) A, by his will, bequeaths to B the sum of 5,000 Taka and afterwards in the same will bequeaths to B the sum of 6,000 Taka B is entitled to receive 11,000 Taka.
(v) A, by his will, bequeaths to B 5,000 Taka and by a codicil to the will he bequeaths to him 5,000 Taka. B is entitled to receive 10,000 Taka.
(vi) A, by codicil to his will, bequeaths to B 5,000 Taka and by another codicil bequeaths to him 6,000 Taka. B is entitled to receive 11,000 Taka.
(vii) A, by his will, bequeaths "500 Taka to B because she was my nurse", and in another part of the will bequeaths 500 Taka to B "because she went to England with my children". B is entitled to receive 1,000 Taka.
(viii) A, by his will, bequeaths to B the sum of 5,000 Taka and also, in another part of the will, an annuity of 400 Taka B is entitled to both legacies.
(ix) A, by his will, bequeaths to B the sum of 5,000 Taka and also bequeaths to him the sum of 5,000 Taka if he shall attain the age of 18. B is entitled absolutely to one sum of 5,000 Taka, and takes a contingent interest in another sum of 5,000 Taka.
Constitution of residuary legatee
102. A residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property.
Illustrations
(i) A makes her will, consisting of several testamentary papers, in one of which are contained the following words:"I think there will be something left after all funeral expenses, etc., to give to B, now at school, towards equipping him to any profession he may hereafter be appointed to". B is constituted residuary legatee.
(ii) A makes his will, with the following passage at the end of it:"I believe there will be found sufficient in my banker's hands to defray and discharge my debts, which I hereby desire B to do, and keep the residue for her own use and pleasure". B is constituted the residuary legatee.
(iii) A bequeaths all his property to B, except certain stocks and funds, which he bequeaths to C. B is the residuary legatee.
Property to which residuary legatee entitled
103. Under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which capable of taking effect.
Illustration
A by his will bequeaths certain legacies, of which one is void under section 118, and another lapses by the death of the legatee. He bequeaths the residue of his property to B. After the date of his will A purchases a zamindari, which belongs to him at the time of his death. B is entitled to the two legacies and the zamindari as part of the residue.
Time of vesting legacy in general terms
104. If a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of the testator, and, if he dies without having received it, it shall pass to his representa-tives.
In what case legacy lapses
105. (1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the will that the testator intended that it should go to some other person.
(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.
Illustrations
(i) The testator bequeaths to B "500 Taka which B owes me". B dies before the testator; the legacy lapses.
(ii) A bequest is made to A and his children. A dies before the testator, or happens to be dead when the will is made. The legacy to A and his children lapses.
(iii) A legacy is given to A, and in case of his dying before the testator, to B. A dies before the testator. The legacy goes to B.
(iv) A sum of money is bequeathed to A for life, and after his death to B. A dies in the lifetime of the testator; B survives the testator. The bequest to B takes effect.
(v) A sum of money is bequeathed to A on his completing his eighteenth year, and in case he should die before he completes his eighteenth year, to B. A completes his eighteenth year, and dies in the lifetime of the testator. The legacy to A lapses, and the bequest to B does not take effect.
(vi) The testator and the legatee perished in the same ship-wreck. There is no evidence to show which died first. The legacy lapses.
Legacy does not lapse if one of two joint legatees die before testator
106. If a legacy is given to two persons jointly, and one of them dies before the testator, the other legatee takes the whole.
Illustration
The legacy is simply to A and B. A dies before the testator. B takes the legacy.
Effect of words showing testator's intention to give distinct shares
107. If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property.
Illustration
A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies before the testator. B and C will only take so much as they would have had if A had survived the testator.
When lapsed share goes as undisposed of
108. Where a share which lapses is a part of the general residue bequeathed by the will, that share shall go as undisposed of.
Illustration
The testator bequeaths the residue of his estate to A, B and C, to be equally divided between them. A dies before the testator. His one-third of the residue goes as undisposed of.
When bequest to testator's child or lineal descendant does not lapse on his death in testator's lifetime
109. Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the life-time of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will.
A makes his will, by which he bequeaths a sum of money to his son, B, for his own absolute use and benefit. B dies before A, leaving a son, C, who survives A, and having made his will whereby he bequeaths all his property to his widow, D. The money goes to D.
Bequest to A for benefit of B does not lapse by A's death
110. Where a bequest is made to one person for the benefit of another, the legacy does not lapse by the death, in the testator's lifetime, of the person to whom the bequest is made.
Survivorship in case of bequest to described class
111. Where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator's death.
Exception.-If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise, the property shall at that time go to such of them as are then alive, and to the representatives of any of them who have died since the death of the testator.
Illustrations
(i) A bequeaths 1,000 Taka 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, 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 will belong to C and D, to the exclusion of the representatives of E.
(ii) 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 lease-hold term as remains unexpired.
(iii) 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 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.
(iv) A 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 belong to D, E and the representatives of C, in equal shares.
(v) A bequeaths 1,000 Taka 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.
(vi) A bequeaths 1,000 Taka 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, 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.
(vii) 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 and 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.
Chapter VII
OF VOID BEQUESTS
Bequest to person by particular description, who is not in existence at testator's death
112. Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers the description, the bequest is void.
Exception.-If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later 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 is dead, to his representatives.
Illustrations
(i) A bequeaths 1,000 Taka to the eldest son of B. At the death of the testator, B has no son. The bequest is void.
(ii) A bequeaths 1,000 Taka 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.
(iii) A bequeaths 1,000 Taka 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 D.
(iv) A bequeaths his estate of Green Acre 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.
(v) A bequeaths 1,000 Taka to the eldest son of C, to be paid to him after the death of B. At the death of the testator C has no son, but a son is afterwards born to him during the life of B and is alive at B's death. C's son is entitled to the 1,000 Taka.
Bequest to person not in existence at testator's death subject to prior bequest
113. 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 t he 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.
Rule against perpetuity
114. No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of 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
(i) 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.
(ii) 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 B's sons as shall first attain the age of 25. D 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.
(iii) 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.
(iv) A fund is bequeathed to trustees for the benefit of the testator's daughters, with a direction that, if any of them marry under age, her share of the fund shall be settled so as to devolve after her death upon such of her children as shall attain the age of 18. Any daughter of the testator to whom the direction applies must be in existence at his decease and any portion of the fund which may eventually be settled as directed must vest not later than 18 years from the death of the daughters whose share it was. All these provisions are valid.
Bequest to a class some of whom may come under rules in sections 113 and 114
115. If a bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of section 113, or section 114, such bequest shall be void in regard to those persons only and not in regard to the whole class.
Illustrations
(i) A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A survives the testator, and has some children living at the testator's death. Each child of A's living at the testator's death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after the testator's decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A. The bequest to A's children, therefore, is in operative as to any child born after the testator's death, and in regard to those who do not attain the age of 25 within 18 years after A's death, but is operative in regard to the other children of A.
(ii) A fund is bequeathed to A for his life, and after his death to B, C, D and all other children of A who shall attain the age of 25. B, C, D are children of A living at the testator's decease. In all other respects the case is the same as that supposed in illustration (i). Although the mention of B, C and D does not prevent the bequest from being regarded as a bequest to a class, it is not wholly void. It is operative as regards any of the children B, C or D, who attains the age of 25 within 18 years after A's death.
Bequest to take effect on failure of prior bequest
116. Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person or of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same will and intended to take effect after or upon failure of such prior bequest is also void.
(i) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under section 114. The bequest to B is void.
(ii) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, and, if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is intended to take effect upon failure of the bequest to such of A's sons as shall first attain the age of 25, which bequest is void under section 114. The bequest to B is void.
Effect of direction for accoumulation
117. (1) Where the terms of a will direct that the income arising from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose of-
(i) the payment of the debts of the testator or any other person taking any interest under the will, or
(ii) the provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will, or
(iii) the preservation or maintenance of any property bequeathed;
and such direction may be made accordingly.
Bequest to religious or charitable uses
118. No man having a nephew or nice or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons.
Illustrations
A having a nephew makes a bequest by a will not executed and deposited as required-
for the relief of poor people;
for the maintenance of sick soldiers;
for the erection or support of a hospital;
for the education and preferment of orphans;
for the support of scholars;
for the erection or support of a school;
for the building and repairs of a bridge;
for the making of roads;
for the erection or support of a church;
for the repairs of a church;
for the benefit of ministers of religion;
for the formation or support of a public garden.
All these bequests are void.
Chapter VIII
OF THE VESTING OF LEGACIES
Date of vesting of legacy when payment or possession postponed
119. Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said to be vested in interest.appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said to be vested in interest.120. (1) A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens.
(2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the happening of that event becomes impossible.
(3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent.
Exception.-Where a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to him absolutely the income to arise from the fund before he reaches Exception.Where a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent.
Illustrations
(i) A legacy is bequeathed to D in case A, B and C shall all die under the age of 18. D has a contingent interest in the legacy until A, B and C all die under 18, or one of them attains that age.
(ii) A sum of money is bequeathed to A "in case he shall attain the age of 18", or "when he shall attain the age of 18". A's interest in the legacy is contingent until the condition is fulfilled by his attaining that age.
(iii) An estate is bequeathed to A for life, and after his death to B if B shall then be living; but if B shall not be then living to C. A, B and C survive the testator. B and C each take a contingent interest in the estate until the event which is to vest it in one or in the other has happened.
(iv) An estate is bequeathed as in the case last supposed. B dies in the lifetime of A and C. Upon the death of B, C acquires a vested right to obtain possession of the estate upon A's death.
(v) A legacy is bequeathed to A when she shall attain the age of 18, or shall marry under that age with the consent of B, with a proviso that, if she neither attains 18 nor marries under that age with B's consent, the legacy shall go to C. A and C each take a contingent interest in the legacy. A attains the age of 18. A becomes absolutely entitled to the legacy although she may have married under 18 without the consent of B.
(vi) An estate is bequeathed to A until he shall marry and after that event B. B's interest in the bequest is contingent until the condition is fulfilled by A's marrying.
(vii) An estate is bequeathed to A until he shall take advantage of any law for the relief of insolvent debtors, and after that event to B. B's interest in the bequest is contingent until A take advantage of such a law.
(viii) An estate is bequeathed to A if he shall pay 500 Taka to B. A's interest in the bequest is contingent until he has paid 500 Taka to B.
(ix) A leaves his farm of Sultanpur Khurd to B, if B shall convey his own farm of Sultanpur Buzurg to C. B's interest in the bequest is contingent until he has conveyed the latter farm to C.(x) A fund is bequeathed to A if B shall not marry C within five years after the testator's death. A's interest in the legacy is contingent until the conditions is fulfilled by the expiration of the five years without B's having married C, or by the occurrence within that period of an event which makes the fulfilment of the conditions impossible.
(xi) A fund is bequeathed to A if B shall not make any provision for him by will. The legacy is contingent until B's death.
(xii) A bequeaths to B 500 Taka a year upon his attaining the age of 18, and directs that the interest, or a competent part thereof shall be applied for his benefit until he reaches that age. The legacy is vested.
(xiii) A bequeaths to B 500 Taka when he shall attain the age of 18, and directs that a certain sum, out of another fund, shall be applied for his maintenance until he arrives at the age. The legacy is contingent.
Date of vesting when legacy contingent upon specified uncertain event
120. (1) A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens.
(2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the happening of that event becomes impossible.
(3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent.
Exception.-Where a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent.
Illustrations
(i) A legacy is bequeathed to D in case A, B and C shall all die under the age of 18. D has a contingent interest in the legacy until A, B and C all die under 18, or one of them attains that age.
(ii) A sum of money is bequeathed to A "in case he shall attain the age of 18", or "when he shall attain the age of 18". A's interest in the legacy is contingent until the condition is fulfilled by his attaining that age.
(iii) An estate is bequeathed to A for life, and after his death to B if B shall then be living; but if B shall not be then living to C. A, B and C survive the testator. B and C each take a contingent interest in the estate until the event which is to vest it in one or in the other has happened.
(iv) An estate is bequeathed as in the case last supposed. B dies in the lifetime of A and C. Upon the death of B, C acquires a vested right to obtain possession of the estate upon A's death.
(v) A legacy is bequeathed to A when she shall attain the age of 18, or shall marry under that age with the consent of B, with a proviso that, if she neither attains 18 nor marries under that age with B's consent, the legacy shall go to C. A and C each take a contingent interest in the legacy. A attains the age of 18. A becomes absolutely entitled to the legacy although she may have married under 18 without the consent of B.
(vi) An estate is bequeathed to A until he shall marry and after that event B. B's interest in the bequest is contingent until the condition is fulfilled by A's marrying.
(vii) An estate is bequeathed to A until he shall take advantage of any law for the relief of insolvent debtors, and after that event to B. B's interest in the bequest is contingent until A take advantage of such a law.
(viii) An estate is bequeathed to A if he shall pay 500 Taka to B. A's interest in the bequest is contingent until he has paid 500 Taka to B.
(ix) A leaves his farm of Sultanpur Khurd to B, if B shall convey his own farm of Sultanpur Buzurg to C. B's interest in the bequest is contingent until he has conveyed the latter farm to C.
(x) A fund is bequeathed to A if B shall not marry C within five years after the testator's death. A's interest in the legacy is contingent until the conditions is fulfilled by the expiration of the five years without B's having married C, or by the occurrence within that period of an event which makes the fulfilment of the conditions impossible.
(xi) A fund is bequeathed to A if B shall not make any provision for him by will. The legacy is contingent until B's death.
(xii) A bequeaths to B 500 Taka a year upon his attaining the age of 18, and directs that the interest, or a competent part thereof shall be applied for his benefit until he reaches that age. The legacy is vested.
(xiii) A bequeaths to B 500 Taka when he shall attain the age of 18, and directs that a certain sum, out of another fund, shall be applied for his maintenance until he arrives at the age. The legacy is contingent.
Vesting of interest in bequest to such members of a class as shall have attained particular age
121. Where a bequest is made only to such members of a class as shall have attained a particular age, a person who has not attained that age cannot have a vested interest in the legacy.
Illustration
A fund is bequeathed to such of the children of A as shall attain the age of 18, with a direction that, while any child of A shall be under the age of 18, the income of the share, to which it may be presumed he will be eventually entitled, shall be applied for his maintenance and education. No child of A who is under the age of 18 has a vested interest in the bequest.
Chapter IX
OF ONEROUS BEQUESTS
Onerous bequests
122. Where a bequest imposes an obligation on the legatee, he can take nothing by it unless he accepts it fully.
Illustration
A, having shares in (X), a prosperous joint stock company and also shares in (Y), a joint stock company in difficulties, in respect of which shares heavy calls are expected to be made, bequeaths to B all his shares in joint stock companies; B refuses to accept the shares in (Y). He forfeits the shares in (X).
One of two separate and independent bequests to same person may be accepted, and other refused
123. Where a will contains two separate and independent bequests to the same person, the legatee is at liberty to accept one of them and refuse the other, although the former may be123. Where a will contains two separate and independent bequests to the same person, the legatee is at liberty to accept one of them and refuse the other, although the former may be beneficial and the latter onerous.
Illustration
A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is higher than the house can be let for, bequeaths to B the lease and a sum of money. B refuses to accept the lease. He will not by this refusal forfeit the money.
Chapter X
OF CONTINGENT BEQUESTS
Bequest contingent upon specified uncertain event, no time being mentioned for its occurrence
124. Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.
Illustrations
(i) A legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B does not take effect.
(ii) A legacy is bequeathed to A, and, in case of his death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect.
(iii) A legacy is bequeathed to A when and if he attains the age of 18, and, in case of his death, to B. A attains the age of 18. The legacy to B does not take effect.
(iv) A legacy is bequeathed to A for life, and, after his death to B, and, "in case of B's death without children", to C. The words "in case of B's death without children" are to be understood as meaning "in case B dies without children during the lifetime of A".
(v) A legacy is bequeathed to A for life, and, after his death to B, and, "in case of B's death", to C. The words "in case of B's death" are to be considered as meaning "in case B dies in the lifetime of A".
Bequest to such of certain persons as shall be surviving at some period not specified
125. Where a bequest is made to such of certain persons
as shall be surviving at some period, but the exact period is not
specified, the legacy shall go to such of them as are alive at the time of payment or distribution, unless a contrary intention appears by the will.(i) Property is bequeathed to A and B to be equally divided between them, or to the survivor of them. If both A and B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B survives the testator, it goes to B.
(ii) Property is bequeathed to A for life, and, after his death, to B and C, to be equally divided between them, or to the survivor of them. B dies during the life of A; C survives A. At A's death the legacy goes to C.
(iii) Property is bequeathed to A for life, and, after his death, to B and C, or the survivor, with a direction that, if B should not survive the testator, his children are to stand in his place. C dies during the life of the testator; B survives the testator, but dies in the lifetime of A. The legacy goes to the representative of B.
(iv) Property is bequeathed to A for life, and, after his death, to B and C, with a direction that, in case either of them dies in the lifetime of A, the whole shall go to the survivor. B dies in the lifetime of A. Afterwards C dies in the lifetime of A. The legacy goes to the representative of C.
Chapter XI
OF CONDITIONAL BEQUESTS
Bequest upon impossible condition
126. A bequest upon an impossible condition is void.
Illustrations
(i) An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.
(ii) A bequeaths 500 Taka to B on condition that he shall marry A's daughter. A's daughter was died at the date of the will. The bequest is void.
Bequest upon illegal or immoral condition
127. A bequest upon a condition, the fulfilment of which would be contrary to law or to morality, is void.
Illustrations
(i) A bequeaths 500 Taka to B on condition that he shall murder C . The bequest is void.
(ii) A bequeaths 5,000 Taka to his niece if she will desert her husband. The bequest is void.
Fulfilment of condition precedent to vesting of legacy
128. Where a will imposes a condition to be fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with.
Illustrations
(i) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A marries with the written consent of B, C is present at the marriage. D sends a present to A previous to the marriage. E has been personally informed by A of his intentions, and has made no objection. A has fulfilled the condition.
(ii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. D dies. A marries with the consent of B and C. A has fulfilled the condition.
(iii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries in the lifetime of B, C and D, with the consent of B and C only. A has not fulfilled the condition.
(iv) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A obtains the unconditional assent of B, C and D to his marriage with E. Afterwards B, C and D capriciously retract their consent. A marries E. A has fulfilled the condition.
(v) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries without the consent of B, C and D but obtains their consent after the marriage. A has not fulfilled the condition.
(vi) A makes his will whereby he bequeaths a sum of money to B if B shall marry with the consent of A's executors. B marries during the lifetime of A, and A afterwards expresses his approbation of the marriage. A dies. The bequest to B takes effect.
(vii) A legacy is bequeathed to A if he executes a certain document within a time specified in the will. The document is executed by A within a reasonable time, but not within the time specified in the will. A has not performed the condition, and is not entitled to receive the legacy.
Bequest to A and on failure of prior bequest to B
129. Where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall take effect upon the failure of the prior bequest although the failure may not have occurred in the manner contemplated by the testator.(i) A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B. A dies without having ever had a child. The bequest to B takes effect.
(ii) A bequeaths a sum of money to B, on condition that he shall execute a certain document within three months after A's death, and, if he should neglect to do so, to C. B dies in the testator's lifetime. The bequest to C takes effect.
When second bequest not to take effect on failure of first
130. Where the will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect, unless the prior bequest fails in that particular manner.
Illustration
A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had bequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him; the bequest to B does not take effect.
Bequest over, conditional upon happening or not happening of specified uncertain event
131. (1) A bequest may be made to any person with the condition superadded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person.
(2) In each case the ulterior bequest is subject to the rules contained in sections 120, 121, 122, 123, 124, 125, 126, 127, 129 and 130.
Illustrations
(i) A sum of money is bequeathed to A, to be paid to him at the age of 18, and if he shall die before he attains that age, to B. A takes a vested interest in the legacy subject to be divested and to go to B in case A dies under 18.
(ii) An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make a will, the estate shall go to B. A disputes the competency of the testator to make a will. The estate goes to B. (iii) A sum of money is bequeathed to A for life, and, after his death, to B; but if B shall then be dead, leaving a son, such son is to stand in the place of B. B takes a vested interest in the legacy, subject to be divested if he dies leaving a son in A's lifetime.
(iv) A sum of money is bequeathed to A and B, and if either should die during the life of C, then to the survivor living at the death of C. A and B die before C. The gift over cannot take effect, but the representative of A takes one-half of the money, and the representative of B takes the other half.
(v) A bequeaths to B the interest of a fund for life, and directs the fund to be divided at her death equally among her three children, or such of them as shall be living at her death. All the children of B die in B's lifetime. The bequest over cannot take effect, but the interests of the children pass to their representatives.
Condition must be strictly fulfilled
132. An ulterior bequest of the kind contemplated by section 131 cannot take effect, unless the condition is strictly fulfilled.
Illustrations
(i) A legacy is bequeathed to A, with a proviso that, if be marries without the consent of B, C and D, the legacy shall go to E. D dies. Even if A marries without the consent of B and C, the gift to E does not take effect.
(ii) A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, the legacy shall go to C. A marries with the consent of B. He afterwards becomes a widower and marries again without the consent of B. The bequest to C does not take effect.
(iii) A legacy is bequeathed to A, to be paid at 18, or marriage, with a proviso that, if A dies under 18 or marries without the consent of B, the legacy shall go to C. A marries under 18, without the consent of B. The bequest to C takes effect.
Original bequest not affected by invalidity of second
133. If the ulterior bequest be not valid the original bequest is not affected by it.
Illustrations
(i) An estate is bequeathed to A for his life with condition superadded that, if he shall not on a given day walk 100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no condition had been inserted in the will.
(ii) An estate is bequeathed to A for her life and, if she do not desert her husband, to D. A is entitled to the estate during her life as if no condition had been inserted in the will.
(iii) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B, at the date of the testator's death, had not had a son. The bequest over is void under section 105, and A is entitled to the estate during his life.
Bequest conditioned that it shall cease to have effect in case a specified uncertain event shall happen, or not happen
134. A bequest may be made with the condition superadded that it shall cease to have effect in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.
Illustrations
(i) An estate is bequeathed to A for his life, with a proviso that, in case he shall cut down a certain wood, the bequest shall cease to have any effect. A cuts down the wood. He loses his life-interest in the estate.
(ii) An estate is bequeathed to A, provided that, if he marries under the age of 25 without the consent of the executors named in the will, the estate shall cease to belong to him. A marries under 25 without the consent of the executors. The estate ceases to belong to him.
(iii) An estate is bequeathed to A, provided that, if he shall not go to England within three years after the testator's death, his interest in the estate shall cease. A does not go to England within the time prescribed. His interest in the estate ceases.
(iv) An estate is bequeathed to A, with a proviso that, if she becomes a nun, she shall cease to have any interest in the estate. A becomes a nun. She loses her interest under the will.
(v) A fund is bequeathed to A for life, and, after his death, to B, if B shall be then living, with a proviso that, if B shall become a nun, the bequest to her shall cease to have any effect. B becomes a nun in the life time of A. She thereby loses her contingent interest in the fund.
Such condition must not be invalid under section 120
135. In order that a condition that a bequest shall cease to have effect may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of a bequest as contemplated by section 120.
Result of legatee rendering impossible or indefinitely postponing act for which no time specified, and on non-performance of which subject-matter to go over
136. Where a bequest is made with a condition superadded that, unless the legatee shall perform a certain act, the subject-matter of the bequest shall go to another person, or the bequest shall cease to have effect but no time is specified for the performance of the act; if the legatee takes any step which renders impossible or indefinitely postpones the performance of the act required, the legacy shall go as if the legatee had died without performing such act.
Illustrations
(i) A bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go over to B. A takes Holy Orders, and thereby renders it impossible that he should fulfil the condition. B is entitled to receive the legacy.
(ii) A bequest is made to A, with a proviso that it shall cease to have any effect if he does not marry B's daughter. A marries a stranger and thereby indefinitely postpones the fulfilment of the conditions. The bequest ceases to have effect.
Performance of condition, precedent or subsequent, within specified time. Further time in case of fraud
137. Where the will requires an act to be performed by the legatee within a specified time, either as a condition to be fulfilled before the legacy is enjoyed, or as a condition upon the non-fulfilment of which the subject-matter of the bequest is to go over to another person or the bequest is to cease to have effect, the act must be performed within the time specified, unless the performance of it be prevented by fraud, in which case such further time shall be allowed as shall be requisite to make up for the delay caused by such fraud.
Chapter XII
OF BEQUESTS WITH DIRECTIONS AS TO APPLICATION OR ENJOYMENT.
Direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person
138. Where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction. A sum of money is bequeathed towards purchasing country residence for A, or to purchase an annuity for A, or to place A a in any business. A chooses to receive the legacy in money. He is entitled to do so.
Direction that mode of enjoyment of absolute bequest is to be restricted, to secure specified benefit for legatee
139. Where a testator absolutely bequeaths a fund, so as to sever it from his own estate, but directs that the mode of enjoyment of it by the legatee shall be restricted so as to secure a specified benefit for the legatee; if that benefit cannot be obtained for the legatee, the fund belongs to him as if the will had contained no such direction.
Illustrations
(i) A bequeaths the residue of his property to be divided equally among his daughters, and directs that the shares of the daughters shall be settled upon themselves respectively for life and be paid to their children after their death. All the daughters die unmarried. The representatives of each daughter are entitled to her share of the residue.
(ii) A directs his trustees to raise a sum of money for his daughter, and he then directs that they shall invest the fund and pay the income arising from it to her during her life, and divide the principal among her children after her death. The daughter dies without having ever had a child. Her representatives are entitled to the fund.
Bequest of fund for certain purposes, some of which cannot be fulfilled
140. Where testator does not absolutely bequeath a fund, so as to sever it from his own estate, but gives if for certain purposes, and part of those purposes cannot be fulfilled, the fund, or so much of it as has not been exhausted upon the objects contemplated by the will, remains a part of the estate of the testator.
Illustrations
(i) A directs that his trustees shall invest a sum of money in a particular way, and shall pay the interest to his son for life, and at his death shall divide the principal among his children. The son dies without having ever had a child. The fund, after the son's death, belongs to the estate of the testator.
(ii) A bequeaths the residue of his estate, to be divided equally among his daughters, with a direction that they are to have the interest only during their lives, and that at their decease the fund shall go to their children. The daughters have no children. The fund belongs to the estate of the testator.
Chapter XIII
OF BEQUESTS TO AN EXECUTOR
Legatee named as executor cannot take unless he shows intention to act as executor
141. If a legacy is bequeathed to a person who is named an executor of the will, he shall not take the legacy, unless he proves the will or otherwise manifests an intention to act as executor.
Illustration
A legacy is given to A, who is named an executor. A orders the funeral according to the directions contained in the will, and dies a few days after the testator, without having proved the will. A has manifested an intention to act as executor.
Chapter XIV
OF SPECIFIC LEGACIES
Specific legacy defined
142. Where a testator bequeaths to any person a specified part of his property, which is distinguished from all other parts of his property, the legacy is said to be specific.
Illustrations
(i) A bequeaths to B-
"the diamond ring presented to me by C":
"my gold chain":
"a certain bale of wool":
"a certain piece of cloth":
"all my household goods which shall be in or about my dwelling-house in M Street, in Calcutta, at time of my death":
"the sum of 1,000 Taka in a certain chest:
"the debt which B owes me":
"all my bills, bonds and securities belonging to me lying in my lodgings in Calcutta":"all my furniture in my house in Calcutta":
"all my goods on board a certain ship now lying in the river Hughli":
"2,000 Taka which I have in the hands of C"
"the money due to me on the bond of D":
"my mortgagee on the Rampur factory":
"One-half of the money owing to me on my mortgage of Rampur factory":
"1,000 Taka, being part of a debt due to me from C":
"my capital stock of 1,000 in East India Stock":
"my promissory notes of the Government for 10,000 Taka in their 4 per cent. loan":
"all such sums of money as my-executors may, after my death, receive in respect of the debt due to me from the insolvent firm of D and Company":
"all the wine which I may have in my cellar at the time of my death":
"such of my horses as B may select":
"all my shares in the Imperial Bank of India".
"all my shares in the Imperial Bank of India which I may possess at the time of my death":
"all the money which I have in the 5› percent, loan of the Government":
"all the Government securities I shall be entitled to at the time of my decease".
Each of these legacies is specific.
(ii) A, having Government promissory notes for 10,000 Taka, bequeaths to his executors "Government promissory notes for 10,000 Taka in trust to sell" for the benefit of B. The legacy is specific.
(iii) A having property at Benares, and also in other places, bequeaths to B all his property at Benares. The legacy is specific.
(iv) A bequeaths to B-
his house in Calcutta:
his zamindari of Rampur:
his taluq of Ramnagar:
his lease of the indigo-factory of Salkya:
an annuity of 500 Taka out of the rents of his zamindari of W.
A directs his zamindari of X to be sold, and the proceeds to be invested for the benefit of B.
Each of these bequests is specific.
(v) A by his will charges his zamindari of Y with an annuity of 1,000 Taka to C during his life, and subject to this charge he bequeaths the zamindari to D. Each of these bequests is specific.
(vi) A bequeaths a sum of money-
to buy a house in Calcutta for B:
to buy an estate in zila Faridpur for B:
to buy a diamond ring for B:
to buy a house for B:
to be invested in shares in the Imperial Bank of India for B:
to be invested in Government securities for B.
A bequeaths to B
"a diamond ring":
"a horse":
"10,000 Taka worth of Government securities":
"an annuity of 500 Taka":
2,000 Taka to be paid in cash":
"so much money as will produce 5,000 Taka four per cent. Government securities".
These bequests are not specific.
(vii) A, having property in England and property in India, bequeaths a legacy to B, and directs that it shall be paid out of the property which he may leave in India. He also bequeaths a legacy to C, and directs that it shall be paid out of property which he may leave in England. No one of these legacies is specific.
Bequest of certain sum where stocks, etc., in which invested are described
143. Where a certain sum is bequeathed, the legacy is not specific merely because the stock, funds or securities in which it is invested are described in the will.
Illustration
A bequeaths to B-
"10,000 Taka of my funded property":
"10,000 Taka of my property now invested in shares of the East Indian Railway Company":
"10,000 Taka, at present secured by mortgage or Rampur factory."
No one of these legacies is specific.
Bequest of stock where testator had, at date of will, equal or greater amount of stock of same kind
144. Where a bequest is made in general terms of a certain amount of any kind of stock, the legacy is not specific merely because the testator was, at the date of his will possessed of stock of the specified kind, to an equal or greater amount than the amount bequeathed.
Illustration
A bequeaths to B 5,000 Taka five per cent. Government securities. A had at the date of the will five per cent. Government securities for 5,000 Taka. The legacy is not specific.
Bequest of money where not payable until part of testator's property disposed of in certain way
145. A money legacy is not specific merely because the will directs its payment to be postponed until some part of the property of the testator has been reduced to a certain form, or remitted to a certain place.
Illustration
A bequeaths to B 10,000 Taka and directs that this legacy shall be paid as soon as A's property in India shall be realised in England. The legacy is not specific.
When enumerated articles not deemed specifically bequeathed
146. Where a will contains a bequest of the residue of the testator's property along with an enumeration of some items of property not previously bequeathed, the articles enumerated shall not be deemed to be specifically bequeathed.
Retention, in form, of specific bequest to several persons in succession
147. Where property is specifically bequeathed to two or more persons in succession, it shall be retained in the form in which the testator left it, although it may be of such a nature that its value is continually decreasing.
Illustrations
(i) A, having lease of a house for a term of years, fifteen of which were unexpired at the time of his death, has bequeathed the lease to B for his life, and after B's death to C. B is to enjoy the property as A left it, although, if B lives for fifteen years, C can take nothing under the bequest.
(ii) A, having an annuity during the life of B, bequeaths it to C, for his life, and, after C's death, to D. C is to enjoy the annuity as A left it, although, if B dies before D, D can take nothing under the bequest.
Sale and investment of proceeds of property bequeathed to two or more persons in succession
148. Where property comprised in a bequest to two or more persons in succession is not specifically bequeathed, it shall, in the absence of any direction to the contrary, be sold, and the proceeds of the sale shall be invested in such securities as the [Supreme Court] may by any general rule authorise or direct, and the fund thus constituted shall be enjoyed by the successive legatees according to the terms of the will.
Illustration
A, having a lease for a term of years bequeaths all his property to B for life, and, after B's death, to C. The lease must be sold, the proceeds invested as stated in this section and the annual income arising from the fund is to be paid to B for life. At B's death the capital of the fund is to be paid to C.
Where deficiency of assets to pay legacies, specific legacy not to abate with general legacies
149. If there is a deficiency of assets to pay legacies, a specific legacy is not liable to abate with the general legacies.
Chapter XV
OF DEMONSTRATIVE LEGACIES
Demonstrative legacy defined
150. Where a testator bequeaths a certain sum of money, or a certain quantity of any other commodity, and refers to a particular fund or stock so as to constitute the same the primary fund or stock out of which payment is to be made, the legacy is said to be demonstrative.
Explanation.-The distinction between a specific legacy and a demonstrative legacy consists in this, that-
Where specified property is given to the legatee, the legacy is specific;
where the legacy is directed to be paid out of specified property, it is demonstrative.
Illustrations
(i) A bequeaths to B 1,000 Taka, being part of a debt due to him from W. He also bequeaths to C 1,000 Taka to be paid out of the debt due to him from W. The legacy to B is specific, the legacy to C is demonstrative.
(ii) A bequeaths to B
"ten bushels of the corn which shall grow in my field of Green Acre":
"80 chests of the indigo which shall be made at my factory of Rampur":
"10,000 Taka out of my five per cent. promissory notes of the Government":
an annuity of 500 Taka "from my funded property":
"1,000 Taka out of the sum of 2,000 Taka due to me by C":
an annuity, and directs it to be paid "out of the rents arising from my taluk of Ramnagar".
(iii) A bequeaths to B
"10,000 Taka out of my estate at Ramnagar", or charges it on his estate at Ramnagar:
"10,000 Taka, being my share of the capital embarked in a certain business".
Each of these bequests is demonstrative.
Order of payment when legacy directed to be paid out of fund the subject of specific legacy
151. Where a portion of a fund is specifically bequeathed and a legacy is directed to be paid out of the same fund, the portion specifically bequeathed shall first be paid to the legatee, and the demonstrative legacy shall be paid out of the residue of the fund and, so far as the residue shall be deficient, out of the general assets of the testator.
Illustration
A bequeaths to B 1,000 Taka, being part of a debt due to him from W. He also bequeaths to C 1,000 Taka to be paid out of the debt due to him from W. The debt due to A from W is only 1,500 Taka; of these 1,500 Taka 1,000 Taka belong to B, and 500 Taka are to be paid to C. C is also to receive 500 Taka out of the general assets of the testator.
Chapter XVI
OF ADEMPTION OF LEGACIES
Ademption explained
152. If anything which has been specifically bequeathed does not belong to the testator at the time of his death, or has been converted into property of a different kind, the legacy is adeemed: that is, it cannot take effect, by reason of the subject-matter having been withdrawn from the operation of the will.
Illustrations
(i) A bequeaths to B-
"the diamond ring presented to me by C":
"my gold chain":
"a certain bale of wool":
"a certain piece of cloth":
"all my household goods which shall be in or about my dwelling-house in M Street in Dhaka, at the time of my death";
A in his lifetime,-
sells or gives away the ring:
converts the chain into a cup:
converts the wool into cloth:
makes the cloth into a garment:
takes another house into which he removes all his goods.
Each of these legacies is adeemed.
(ii) A bequeaths to B-
"the sum of 1,000 Taka in a certain chest":
"all the horses in my stable".
At the death of A, no money is found in the chest, and no horses in the stable. The legacies are adeemed.
(iii) A bequeaths to B certain bales of goods. A takes the goods with him on a voyage. The ship and goods are lost at sea, and A is drowned. The legacy is adeemed.
Non-ademption of demonstrative legacy
153. A demonstrative legacy is not adeemed by reason that the property on which it is charged by the will does not exist at the time of the death of the testator, or has been converted into property of a different kind, but it shall in such case be paid out of the general assets of the testator.
Ademption of specific bequest of right to receive something from third party
154. Where the thing specifically bequeathed is the right to receive something of value from a third party, and the testator himself receives it, the bequest is adeemed.
Illustrations
(i) A bequeaths to B-
"the debt which C owes me":
"2,000 Taka which I have in the hands of D":
"the money due to me on the bond of E":
"my mortgage on the Rahimyarkhan factory".
All these debts are extinguished in A's lifetime, some with and some without his consent. All the legacies are adeemed.
(ii) A bequeaths to B his interest in certain policies of life assurance. A in his lifetime receives the amount of the policies. The legacy is adeemed.
Ademption pro tanto by testator's receipt of part of entire thing specifically bequeathed
155. The receipt by the testator of a pat of an entire thing specifically bequeathed shall operate as an ademption of the legacy to the extent of the sum so received.
Illustration
A bequeaths to B "the debt due to me by C". The debt amounts to 10,000 Taka. C pays to A 5,000 Taka the one-half of the debt. The legacy is revoked by ademption, so far as regards the 5,000 Taka received by A.
Ademption pro tanto by testator's receipt of portion of entire fund of which portion has been specifically bequeathed
156. If a portion of an entire fund or stock is specifically bequeathed, the receipt by the testator of a portion of the fund or stock shall operate as an ademption only to the extent of the amount so received; and the residue of the fund or stock shall be applicable to the discharge of the specific legacy.
Illustration
A bequeaths to B one-half of the sum of 10,000 Taka due to him from W. A in his lifetime receives 6,000 Taka, part of the 10,000 Taka. The 4,000 Taka which are due from W to A at the time of his death belong to B under the specific bequest.
Order of payment where portion of fund specifically bequeathed to one legatee, and legacy charged on same fund to another, and, testator having received portion of that fund, remainder insufficient to pay both legacies
157. Where a portion of a fund is specifically bequeathed to one legatee, and a legacy charged on the same fund is bequeathed to another legatee, then, if the testator receives a portion of that fund, and the remainder of the fund is insufficient to pay both the specific and the demonstrative legacy, the specific legacy shall be paid first, and the residue (if any) of the fund shall be applied so far as it will extend in payment of the demonstrative legacy, and the rest of the demonstrative legacy shall be paid out of the general assets of the testator.
Illustration
A bequeaths to B 1,000 Taka, part of the debt of 2,000 Taka due to him from W. He also bequeaths to C 1,000 Taka to be paid out of the debt due to him from W. A afterwards receives 500 Taka, part of that debt, and dies leaving only 1,500 Taka due to him from W. Of these 1,500 Taka, 1,000 Taka belong to B, and 500 Taka are to be paid to C. C is also to receive 500 Taka out of the general assets of the testator.
Ademption where stock, specifically bequeathed, does not exist at testator's death
158. Where stock which has been specifically bequeathed does not exist at the testator's death, the legacy is adeemed.
Illustration
A bequeaths to B-
"my capital stock of 1,000/- in East India Stock":
"my promissory notes of the Government for 10,000 Taka in their 4 per cent. loan".
A sells the stock and the notes. The legacies are adeemed.
Ademption pro tanto where stock, specially bequeathed, exists in part only at testator's death
159. Where stock which has been specifically bequeathed exists only in part at the testator's death, the legacy is adeemed so far as regards that part of the stock which has ceased to exist.
Illustration
A bequeaths to B his 10,000 Taka in the 5› per cent. loan of the Government. A sells one-half of his 10,000 Taka in the loan in question. One-half of the legacy is adeemed.
Non-ademption of specific bequest of goods described as connected with certain place, by reason of removal
160. A specific bequest of goods under a description connecting them with a certain place is not adeemed by reason that they have been removed from such place from any temporary cause, or by fraud, or without the knowledge or sanction of the testator.
Illustrations
(i) A bequeaths to B "all household goods which shall be in or about my dwelling-house in Calcutta at the time of my death". The goods are removed from the house to save them from fire. A dies before they are brought back.
(ii) A bequeaths to B "all my household goods which shall be in or about my dwelling-house in Calcutta at the time of my death". During A's absence upon a journey, the whole of the goods are removed from the house. A dies without having sanctioned their removal.
Neither of these legacies is adeemed.
When removal of thing bequeathed does not constitute ademption
161. The removal of the thing bequeathed from the place in which it is stated in the will to be situated does not constitute an ademption, where the place is only referred to in order to complete the description of what the testator meant to bequeath.
Illustrations
(i) A bequeaths to B "all the bills, bonds and other securities for money belonging to me now lying in my lodgings in Dhaka". At the time of his death, these effects had been removed from his lodgings in Dhaka.
(ii) A bequeaths to B all his furniture then in his hosue in Dhaka. The testator has a house at Dhaka and another at Chalna, in which he lives alternately, being possessed of one set of furniture only which he removes with himself to each house. At the time of his death the furniture is in the house at Chalna.
(iii) A bequeaths to B all his goods on board a certain ship then lying in the river Padma. The goods are removed by A's directions to a ware-house, in which they remain at the time of A's death.
No one of these legacies is revoked by ademption.
When thing bequeathed is a valuable to be received by testator from third person; and testator himself, or his representative, receives it
162. Where the thing bequeathed is not the right to receive something of value from a third person, but the money or other commodity which may be received from the third person by the testator himself or by his representatives, the receipt of such sum of money or other commodity by the testator shall not constitute an ademption; but if he mixes it up with the general mass of his property, the legacy is adeemed.
Illustration
A bequeaths to B whatever sum may be received from his claim on C. A receives the whole of his claim on C, and sets it apart from the general mass of his property. The legacy is not adeemed.
Change by operation of law of subject of specific bequest between date of will and testator's death
163. Where a thing specifically bequeathed undergoes a change between the date of the will and the testator's death, and the change takes place by operation of law, or in the course of execution of the provisions of any legal instrument under which the thing bequeathed was held, the legacy is not adeemed by reason of such change.
Illustrations
(i) A bequeaths to B "all the money which I have in the 5› per cent. loan of the Government. The securities for the 5› per cent. loan are converted during A's lifetime into 5 per cent. stock.
(ii) A bequeaths to B the sum of 2,000/- invested in Consols in the names of trustees for A. The sum of 2,000/- is transferred by the trustees into A's own name.
(iii) A bequeaths to B the sum of 10,000 Taka in promissory notes of the Government which he has power under his marriage settlement to dispose of by will. Afterwards, in A's lifetime, the fund is converted into Consols by virtue of an authority contained in the settlement.
No one of these legacies has been adeemed.
Change of subject without testator's knowledge
164. Where a thing specifically bequeathed undergoes a change between the date of the will and the testator's death, and the change takes place without the knowledge or sanction of the testator, the legacy is not adeemed.
Illustration
A bequeaths to B "all my 3 per cent. Consols". The Consols are, without A's knowledge, sold by his agent, and the proceeds converted into East India Stock. This legacy is not adeemed.
Stock specifically bequeathed lent to third party on condition that it be replaced
165. Where stock which has been specifically bequeathed is lent to a third party on condition that it shall be replaced, and it is replaced accordingly, the legacy is not adeemed.
Stock specifically bequeathed sold but replaced, and belonging to testator at his death
166. Where stock specifically bequeathed is sold, and an equal quantity of the same stock is afterwards purchased and belongs to the testator at his death, the legacy is not adeemed.
Chapter XVII
OF THE PAYMENT OF LIABILITIES IN RESPECT OF THE SUBJECT OF A BEQUEST
Non-liability of executor to exonerate specific legatees
167. (1) Where property specifically bequeathed is subject at the death of the testator to any pleadge, lien or incumbrance created by the testator himself or by any person under whom he claims, then, unless a contrary intention appears by the will, the legatee, if he accepts the bequest, shall accept it subject to such pledge or incumbrance, and shall (as between himself and the testator's estate) be liable to make good the amount of such pledge or incumbrance.
(2) A contrary intention shall not be inferred from any direction which the will may contain for the payment of the testator's debts generally.
Explanation.-A periodical payment in the nature of land-revenue or in the nature of rent is not such an incumbrance as is contemplated by this section.
Illustrations
(i) A bequeaths to B the diamond ring given him by C. At A's death the ring is held in pawn by D, to whom it has been pledged by A. It is the duty of A's executors, if the state of the testator's assets will allow them, to allow B to redeem the ring.
(ii) A bequeaths to B a zamindari which at A's death is subject to a mortgage for 10,000 Taka; and the whole of the principal sum, together with interest to the amount of 1,000 Taka, is due at A's death. B, if he accepts the bequest, accepts it subject to this subject to this charge, and is liable, as between himself and A's estate, to pay the sum of 11,000 Taka thus due.
Completion of testator's title to things bequeathed to be at cost of his estate
168. Where anything is to be done to complete the testator's title to the thing bequeathed, it is to be done at the cost of the testator's estate.
Illustrations
(i) A, having contracted in general terms for the purchase of a piece of land at a certain price, bequeaths to B, and dies before he has paid the purchase-money. The purchase-money must be made good out of A's assets.
(ii) A, having contracted for the purchase of a piece of land for a certain sum of money, one-half of which is to be paid down and the other half secured by mortgage of the land, bequeaths it to B, and dies before he has paid or secured any part of the purchase-money. One-half of the purchase-money must be paid out of A's assets.
Exoneration of legatee's immoveable property for which land-revenue or rent payable periodically
169. Where there is a bequest of any interest in immovable property in respect of which payment in the nature of land-revenue or in the nature of rent has to be made periodically, the estate of the testator shall (as between such estate and the legatee) make good such payments or a proportion of them, as the case may be, up to the day of his death.
Illustration
A bequeaths to B a house, in respect of which 365 Taka are payable annually by way of rent. A pays his rent at the usual time, and dies 25 days after. A's estate will make good 25 Taka in respect of the rent.
Exoneration of specific legatee's stock in joint stock company
170. In the absence of any direction in the will, where there is a specific bequest of stock in a joint stock company, if any call or other payment is due from the testator at the time of his death in respect of the stock, such call or payment shall, as between the testator's estate and the legatee, be borne by the estate; but, if any call or other payment becomes due in respect of such stock after the testator's death, the same shall, as between the testator's estate and the legatee, be borne by the legatee, if he accepts the bequest.
Illustrations
(i) A bequeaths to B his shares in a certain railway. At A's death there was due from him the sum of 100 Taka in respect of each share, being the amount of a call which had been duly made, and the sum of five Taka in respect of each share, being the amount of interest which had accrued due in respect of the call. These payments must be borne by A's estate.
(ii) A has agreed to take 50 shares in an intended joint stock company, and has contracted to pay up 100 Taka in respect of each share, which sum must be paid before his title to the shares can be completed. A bequeaths these shares to B. The estate of A must make good the payments which were necessary to completed A's title.
(iii) A bequeaths to B his shares in a certain railway. B accepts the legacy. After A's death, a call is made in respect of the shares. B must pay the call.
(iv) A bequeaths to B his shares in a joint stock company. B accepts the bequest. Afterwards the affairs of the company are wound up, and each shareholder is called upon for contribution. The amount of the contribution must be borne by the legatee.
(v) A is the owner of ten shares in a railway company. At a meeting held during his lifetime a call is made of fifty Taka per share, payable by three instalments. A bequeaths his shares to B, and dies between the day fixed for the payment of the first and the day fixed for the payment of the second instalment, and without having paid the first instalment. A's estate must pay the first instalment and B, if he accepts the legacy, must pay the remaining instalments.
Chapter XVIII
OF BEQUESTS OF THINGS DESCRIBED IN GENERAL TERMS
Bequest of thing described in general terms
171. If there is a bequest of something described in general terms, me executor must purchase for the legatee what may reasonably be considered to answer the description.
Illustrations
(i) A bequeaths to B a pair of carriage-horses or a diamond ring. The executor must provide the legatee with such articles if the state of the assets will allow it.
(ii) A bequeaths to B "my pair of carriage-horses". A had no carriage-horses at the time of his death. The legacy fails.
Chapter XIX
OF BEQUESTS OF THE INTEREST OR PRODUCE OF A FUND
Bequest of interest or produce of fund
172. Where the interest or produce of a fund is bequeathed to any person, and the will affords no indication of an intention that the enjoyment of the bequest should be of limited duration, the principal, as well as the interest, shall belong to the legatee.
Illustrations
(i) A bequeaths to B the interest of his 5 per cent. promissory notes of the Government. There is no other clause in the will affecting those securities. B is entitled to A's 5 per cent. promissory notes of the Government.
(ii) A bequeaths the interest of his 5› per cent. promissory notes of the Government to B for his life, and after his death to C. B is entitled to the interest of the notes during his life, and C is entitled to the notes upon B's death.
(iii) A bequeaths to B the rents of his lands at X. B is entitled to the lands.
Chapter XX
OF BEQUESTS OF ANNUTIES
Annuity created by will payable for life only unless contrary intention appears by will
173. Where an annuity is created by will, the legatee is entitled to receive it for his life only, unless a contrary intention appears by the will, notwithstanding that the annuity is directed to be paid out of the property generally, or that a sum of money is bequeathed to be invested in the purchase of it.
Illustrations
(i) A bequeaths to B 500 Taka a year. B is entitled during his life to receive the annual sum of 500 Taka.
(ii) A bequeaths to B the sum of 500 Taka monthly. B is entitled during his life to receive the sum of 500 Taka every month.
(iii) A bequeaths an annuity of 500 Taka to B for life, and on B's death to C, B is entitled to an annuity of 500 Taka during his life. C, if he survives B, is entitled to an annuity of 500 Taka from B's death until his own death.
Period of vesting where will directs that annuity be provided out of proceeds of property, or out of property generally, or where money bequeathed to be invested in purchase of annuity
174. Where the will directs that an annuity shall be provide for any person out of the proceeds of property, or out of property generally, or where money is bequeathed to be invested in the purchase of any annuity for any person, on the testator's death, the legacy vests in interest in the legatee, and he is entitled at his option to have an annuity purchased for him or to receive the money appropriated for that purpose by the will.
Illustrations
(i) A by his will directs that his executors shall, out of his property, purchase an annuity of 1,000 Taka for B. B is entitled at his option to have an annuity of 1,000 Taka for his life purchased for him or to receive such a sum as will be sufficient for the purchase of such an annuity.
(ii) A bequeaths a fund to B for his life, and directs that after B's death, it shall be laid out in the purchase of an annuity for C. B and C survive the testator. C dies in B's lifetime. On B's death the fund belongs to the representative of C.
Abatement of annuity
175. Where an annuity is bequeathed, but the assets of the testator are not sufficient to pay all the legacies given by the will, the annuity shall abate in the same proportion as the other pecuniary legacies given by the will.
Where gift of annuity and residuary gift, whole annuity to be first satisfied
176. Where there is a gift of an annuity and a residuary gift, the whole of the annuity is to be satisfied before any part of the residue is paid to the residuary legatee, and, if necessary, the capital of the testator's estate shall be applied for that purpose.
Chapter XXI
OF LEGACIES TO CREDITORS AND PORTIONERS
Creditor prima facie entitled to legacy as well as debt
177. Where a debtor bequeaths a legacy to his creditor, and it does not appear from the will that the legacy is meant as a satisfaction of the debt, the creditor shall be entitled to the legacy, as well as to the amount of the debt.
Child prima facie entitled to legacy as well as portion
178. Where a parent, who is under obligation by contract to provide a portion for a child, fails to do so, and afterwards bequeaths a legacy to the child, and does not intimate by his will that the legacy is meant as a satisfaction of the portion, the child shall be entitled to receive the legacy, as well as the portion.
Illustration
A, by articles entered into in contemplation of his marriage with B, covenanted that he would pay to each of the daughters of the intended marriage a portion of 20,000 Taka on her marriage. This covenant having been broken, A bequeaths 20,000 Taka to each of the married daughter of himself and B. The legatees are entitle to the benefit of this bequest in addition to their portions.
No ademption by subsequent provision for leagatee
179. No bequest shall be wholly or partially adeemed by a subsequent provision made by settlement or otherwise for the legatee.
Illustrations
(i) A bequeaths 20,000 Taka to his son B. He afterwards gives to B the sum of 20,000 Taka. The legacy is not thereby adeemed.
(ii) A bequeaths 40,000 Taka to B, his orphan niece whom he had brought up from her infancy. Afterwards, on the occasion of B's marriage, A settles upon her the sum of 30,000 Taka. The legacy is not thereby diminished.
Circumstances in which election takes place
180. Where a person, by his will, professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will.
Devolution of interest relinquished by owner
181. An interest relinquished in the circumstances stated in section 180 shall devolve as if it had not been disposed of by the will in favour of the legatee, subject, nevertheless, to the charge of making good to the disappointed legatee the amount or value of the gift attempted to be given to him by the will.
Testator's belief as to his ownership immaterial
182. The provisions of sections 180 and 181 apply whether the testator does or does not believe that which he professes to dispose of by his will to be his own.
Illustrations
(i) The farm of Sultanpur was the property of C. A bequeathed it to B, giving a legacy of 1,000 Taka to C. C has elected to retain his farm of Sultanpur, which is worth 800 Taka. C forfeits his legacy of 1,000 Taka, of which 800 Taka goes to B, and the remaining 200 Taka falls into the residuary bequest, or devolves according to the rules of intestate succession, as the case may be.
(ii) A bequeaths an estate to B in case B's elder brother (who is married and has children) shall leave no issue living at his death. A also bequeaths to C a jewel, which belongs to B. B must elect to give up the jewel or to lose the estate.
(iii) A bequeaths to B 1,000 Taka, and to C an estate which will, under a settlement, belong to B if his elder brother (who is married and has children) shall leave no issue living at his death. B must elect to give up the estate or to lose the legacy.
(iv) A, a person of the age of 18, domiciled in Bangladesh but owing real property in England, to which C is heir at law, bequeaths a legacy to C and, subject thereto, devises and bequeaths to B "all my property whatsoever and wheresoever", and dies under 21. The real property in England does not pass by the will. C may claim his legacy without giving up the real property in England.
Bequest for man's benefit how regarded for purpose of election
183. A bequest for a person's benefit is, for the purpose of election, the same thing as a bequest made to himself.
Illustration
The farm of Sultanpur Khurd being the property of B, A bequeathed it to C: and bequeathed another farm called Sultanpur Buzurg to his own executors with a direction that it should be sold and the proceeds applied in payment of B's debts. B must elect whether he will abide by the will, or keep his farm of Sultanpur Khurd in opposition to it.
Person deriving benefit indirectly not put to election
184. A person taking no benefit directly under a will, but deriving a benefit under it indirectly, is not put to his election.
Illustration
The lands of Sultanpur are settled upon C for life, and after his death upon D, his only child. A bequeaths the lands of Sultanpur to B, and 1,000 Taka to C. C dies intestate shortly after the testator, and without having made any election. D takes out administration to C, and as administrator elects on behalf of C's estate to take under the will. In that capacity he receives the legacy of 1,000 Taka and accounts to B for the rents of the lands of Sultanpur which accrued after the death of the testator and before the death of C. In his individual character he retains the lands of Sultanpur in opposition to the will.
Person taking in individual capacity under will may in other character elect to take in opposition
185. A person who in his individual capacity takes a benefit under a will may, in another character, elect to take in opposition to the will.
Illustration
The estate of Sultanpur is settled upon A for life, and after his death upon B. A leaves the estate of Sultanpur to D, and 2,000 Taka to B, and 1,000 Taka to C, who is B's only child. B dies intestate, shortly after the testator, without having made an election. C takes out administration to B, and as administrator elects to keep the estate of Sultanpur in opposition to the will, and to relinquish the legacy of 2,000 Taka. C may do this, and yet claim his legacy of 1,000 Taka under the will.
Exception to provisions of last six sections
186. Not withstanding anything contained in sections 180 to 185, where a particular gift is expressed in the will to be in lieu of something belonging to the legatee which is also in terms disposed of by the will, then, if the legatee claims that thing, he must relinquish the particular gift, but he is not bound to relinquish any other benefit given to him by the will.
Illustration
Under A's marriage-settlement his wife is entitled, if she survives him, to the enjoyment of the estate of Sultanpur during her life. A by his will bequeaths to his wife an annuity of 200 Taka during her life, in lieu of her interest in the estate of Sultanpur, which estate he bequeaths to his son. He also gives his wife a legacy of 1,000 Taka. The widow elects to take what she is entitled to under the settlement. She is bound to relinquish the annuity but not the legacy of 1,000 Taka.
When acceptance of benefit given by will constitutes election to take under will
187. Acceptance of a benefit given by a will constitutes an election by the legatee to take under the will, if he had knowledge of his right to elect and of those circumstances which would influence the judgement of a reasonable man in making an election, or if he waives inquiry into the circumstances.
Illustrations
(i) A is owner of an estate called Sultanpur Khurd, and has a life interest in another estate called Sultanpur Buzurg to which upon his death is son B will be absolutely entitled. The will of A gives the estate of Sultanpur Khurd to B, and the estate of Sultanpur Buzurg to C. B, in ignorance of his own right to the estate of Sultanpur Buzrug, allows C to take possession of it, and enters into possession of the estate of Sultanpur Khurd. B has not confirmed the bequest of Sultanpur Buzurg to C.
(ii) B, the eldest son of A, is the possessor of an estate called sultanpur. A bequeaths Sultanpur to C, and to B the residure of A's property. B having been informed by A's executors that the residue will amount to 5,000 Taka, allows C to take possession of Sultanpur. He afterwards discovers that the residue does not amount to more than 500 Taka. B has not confirmed the bequest of the estate of Sultanpur to C.
Circumstances in which knowledge or waiver is presumed or inferred
188. (1) Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the will without doing any act to express dissent.
(2) Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if such act had not been done.
Illustration
A bequeaths to B an estate to which C is entitled, and to C a coal mine. C takes possession of the mine and exhausts it. He has thereby confirmed the bequest of the estate to B.
When testator's representatives may call upon legatee to elect
189. If the legatee does not, within one year after the death of the testator, signify to the testator's representatives his intention to confirm or to dissent from the will, the representatives shall, upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the will.
Postponement of election in case of disability
190. In case of disability the election shall be postponed until the disability ceases, or until the election is made by some competent authority.
Chapter XXIII
OF GIFTS IN CONTEMPLATION OF DEATH
Property transferable by gift made in contemplation of death
191.(1) A man may dispose, by gift made in contemplation of death, of any moveable property which he could dispose of by will.
(2) A gift said to be made in contemplation of death where a man, who is ill and expects to die shortly of his illness, delivers to another the possession of any moveable property to keep as a gift in case the donor shall die of that illness.
(3) Such a gift may be resumed by the giver; and shall not take effect if he recovers from the illness during which it was made; nor if he survives the person to whom it was made.
Illustrations
(i) A, being ill, and in expectation of death, delivers to B, to be retained by him in case of A's death,-
a watch:
a bond granted by C to A:
a bank-note:
a promissory note of the Government endorsed in blank:
a bill of exchange endorsed in blank:
certain mortgage-deeds.
A dies of the illness during which he delivered these articles.
B is entitled to-
the watch:
the debt secured by C's bond:
the bank-note:
the promissory note of the Government:
the bill of exchange:
the money secured by the mortgage-deeds.
(ii) A, being ill, an in expectation of death, delivers to B the key of a trunk or the key of a warehouse in which goods of bulk belonging to A are deposited, with the intention of giving him the control over the contents of the trunk, or over the deposited goods, and desires him to keep them in case of A's death. A dies of the illness during which he delivered these articles. B is entitled to the trunk and its contents or to A's goods of bulk in the warehouse.
(iii) A, being ill, and in expectation of death, puts aside certain articles in separate parcels and marks upon the parcels respectively the names of B and C. The parcels are not delivered during the life of A. A dies of the illness during which he set aside the parcel. B and C are not entitled to the contents of the parcel.
