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held, operates as a repeal of the previously existing law', that is, the Wills Act (XXV of 1838), the Dower Act (XXIX of 1839), and the Inheritance Act (XXX of 1839), so far as regards wills made,

marriages contracted, and descents taking place on or after the ist Local January, 1866. It also operates as a declaration of the local and extent.

personal extent of the Act. It is in force throughout British India, which is defined (sec. 3) as the territories which are or may become vested in Her Majesty or her successors by the statute 21 & 22 Vict. c. 106, other than the Straits Settlement. It is also in force, by virtue of executive orders, in the Haidarábád Assigned Districts, the civil and military station of Bangalore, and, probably, the rest of Mysore, the five parganass in the Rajputána Agency under British administration, the cantonment of Sikandarábád, Dísah, and, probably, other British cantonments in Native States, and the non-British parts of certain railways that pass through Native

territory“. It is, lastly, in force in Zanzibar under the Zanzibar Personal Order in Council of 1884" As to its personal extent, it applies extent.

generally to every one domiciled in British India except Hindús, Muhammadans, Buddhists, Pársís, and persons exempted by order under sec. 332. It applies, therefore, to domiciled Europeans, to East Indians (or Eurasians'), to Jews, Armenians, and (except in Coorg) to Native Christians. Save as regards the law of intestate succession, it applies to Pársíso, and (as above remarked) a large number of its rules as to wills have been extended to Hindús, Jainás, Sikhs, and Buddhists in the Lower Provinces and the towns

of Madras and Bombay. Commence- There is no provision as to the commencement of the Act. It ment.

therefore came into operation when the Governor-General assented to it (i.e. on the 16th March, 1865), except as to intestacies occurring, wills made, and marriages contracted, before 1st January, 1866.

II. MARRIAGE AND DOMICILE. For the purpose of simplifying the law of Property, and assimilating the rules as to Succession after death to the rules as to

112 Ben. 427, per Macpherson J. Christians in Mysore. Before the Wills Act of 1838, 32 Hen. 8 Todgarh, Dewair, Saroth, Chang, VIII, c. 1, 34 & 35 Hen. VIII, c. 5, and Kot-Karana. and the Statute of Frauds, secs. 5, 6, * The Great Indian Peninsula, 12, 19-22, regulated devises, at least in Madras, Nagpur and Chhatisgarh, the case of Europeans ; see 3 B. & P. Nizam's, Rájputána-Malwa. 16; 2 J. & W. 334. These enactments 5 The Consul-General is to be deemed were expressly repealed by Act XXV the District Judge, and the High of 1838, except as to wills made before Court of Bombay hears appeals from Ist Feb. 1839.

his decisions. ? But it does not apply to Native * Act XXI of 1863, sec. 8, which

Succession inter vivos, it was necessary to abolish the English doc- Marriage. trine that marriage per se confers certain rights on a husband to his wife's property, and on a widow to her deceased husband's. Sec. 4 read with sec. 331 therefore declares that no person shall, by marriage contracted on or after the ist January, 1866, acquire any interest in the property of the person whom he or she marries, nor become incapable of doing any act in respect of his or her own property, which he or she could have done if unmarried. This section does not apply, and shall be deemed never to have applied, to any marriage, one or both of the parties to which professed, at the time of the marriage, the Hindú, Muhammadan, Buddhist, Sikh or Jainá religion? As sect. 4 is not retrospective, it leaves untouched a woman's right to dower which she possessed before ist Jan. 1866 ?. It does not apply in respect of the moveable property of a person not having an Indian domicile. But where one of the parties has, and the other has not, an Indian domicile, a special rule is laid down by sec. 44.

Succession to the immoveable property of a deceased person is, Domicile. in British India as elsewhere, regulated by the lex loci rei sitae. But succession to his moveables is regulated by the law of the country in which he had his domicile at the time of his death.

Part II, therefore, contains rules as to domicile, which agree generally with those recognised in England. The domicile of origin of a posthumous child is, however, to be in the country in which his father was domiciled at the time of the death of the latter; and the Act declares that no one shall acquire a domicile in India merely by residing there in Her Majesty's Civil or Military service, or in the discharge of the duties of any public office, or in the exercise of any profession or calling. The old rule was that a person did not change his domicile by going to India in the service of the Crown, but that it was otherwise if he entered the service of the Company. The Act provides a special mode of acquiring an Indian domicile for persons resident in British India for one year immediately preceding the acquisition.

III. INTESTATE SUCCESSION. Intestate is chronologically anterior to testamentary succession. The Succession Act accordingly, after defining (as a necessary preliminary to the rules as to Intestacy) consanguinity (secs. 20, declares that Part III, Part IV (except sec. 25), Part V, and sec. 43 shall s See infra, and i Cal. 412. not apply to Parsis.

* Holland, Jurisprudence, 4th ed. * Act III of 1874, sec. 2.

2 6 Cal. 794.

136.

21, 22), abolishing the distinction between whole and half blood in case of succession to immoveable property (sec. 23), and giving a table of kindred (sec. 24), defines Intestacy (sec. 25) and regulates the devolution of the intestate's property where he has left

(a) a widow and lineal descendants (secs. 27, 30–33);
() a widow and kindred only (secs. 27, 34-41);
(c) a widow but no kindred (sec. 27);
(d) no widow, but descendants or other kindred (sec. 28);
(e) neither widow nor kindred (sec. 28).

In this the English law is followed, except that, when there is a widow but no kindred, the whole property belongs to her instead of one half going to her and the other half going to the Crown.

Sec. 42 declares that anything which a child may have received from the intestate in his lifetime by way of advancement shall not be deducted from the child's share of the property, or, as an Eng. lish lawyer would say, shall not be brought into hotchpot. Here the Act varies from English law in the case of gifts by a father. * The English rule,' say the Commissioners, 'though founded upon a desire to equalise as far as possible the benefits derived by children from their father's property, often fails to effect that object, and proves productive of considerable inconveniences. It tends to encourage minute and difficult investigations of matters of family account, and it frequently interferes with the arrangements of a father who has given property to a child by way of advancement, and yet has not seen fit to make any alteration in his testamentary dispositions; and these evils, which are often felt in England, would be still more felt in India.'

The Act then declares the rights of the widower in respect of the property as to which his wife has died intestate. It provides that, in the case of the marriage of a person not having an Indian domicile to a person having such domicile, neither party shall acquire any rights in respect of the other's property not comprised in an antenuptial settlement, which he or she would not acquire thereby if both were domiciled in India at the time of the marriage. Without some such provision, in the case of an East Indian woman marrying a man domiciled in England and thus acquiring his domicile, her unsettled moveables would immediately become his absolute property, while his immoveable property in India would go according to the lex loci rei sitae. Before 1866 the general personal estate of a female infant was bound by a settlement made on her marriage, because such estate became by the marriage the husband's absolute property, and the settlement was, in effect, his settlement and not hers. But under the provisions of sec. 4 this reason is no longer valid. Moreover, according to the law which prevailed down to 1866 a female infant's real estate was not bound by her marriage settlement. Hence the necessity for a provision (which sec. 45 accordingly contains) to enable a minor's property, whether moveable or immoveable, to be settled in contemplation of marriage.

In the case of Pársís their rules as to intestate succession are Pársís. codified by Act XXI of 1865, as to which see 1 Bom. 506 : 2 Bom. 75: 4 Bom. 567. In the case of the Hindú and Muhammadan Oudh taluqdárs of Oudh special rules as to intestate succession are con

taluqdárs. tained in Act I of 1869, secs. 21-23, as to which see L. R. 4 I. A. 228: L. R. 5 I. A. I.

IV. TESTAMENTARY SUCCESSION. The principle that a man may override the claims of his kindred in blood and select the person on whom his property is to devolve after his death is, as above suggested, of later origin than the principle of intestate succession? The Teutonic, Celtic, and Slavonic barbarians who broke up the Roman Empire were strangers to the conception of a Will?, and borrowed it from the Romans : the Jews also seem to have borrowed their rudimentary testament (tsavvā'ah) from the same source.

The Muslim Arabs learned to make wills when they conquered the Roman provinces of Syria, Mesopotamia, and Egypt. And either from their Muhammadan or from their English conquerors, the Hindús of Bengal seem to have borrowed the practice of testation. The Succession Act therefore takes up the subject of succession from a testator after it has dealt with the earlier form of succession ab intestato. The points to which attention should be directed in studying the provisions as to this matter contained in the Act are the following :

1. The capacity of the testator. As to this, sec. 46 declares Testamentthat every person—including married women, aliens, criminals— ary ca

pacity. Holland, Jurisprudence, pp. 136, 26-28, 33, 35, 45, 46, 54, 63, 94, 95

1

of the translation. * See Maine, Ancient Law, 172.

* Sir H. Maine thinks, Ancient Law, This is certainly true as to Teutons p. 197, that the only form of testaand Slavs. It is probably true of the ment not belonging to a Roman or Celts—though the ancient Irish had Hellenic society which can reasonal a native word for bequest-aidacht, be supposed indigenous is that recogaudacht, edoct.

nised by the usages of the province of * See the fifth century Syrisches Bengal. If so, there surely would Römisches Rechtsbuch, by Bruns and have been a Sanskrit name for a will, Sachau, Leipzig, 1880, 5$ 2, 5, 18,

137.

may make a will, provided he or she is of sound mind, knows what he or she is doing, and is not less than eighteen years of age. It is explained that persons who are deaf, dumb or blind are not thereby incapacitated for making a .will, and that a lunatic may make a will during a lucid interval. Wills caused by fraud, coercion, or such importunity as deprives the testator of free agency are void, but no effect is given to proof that the

testator acted by mistake 1. Formali. 2. The formalities necessary for the execution of a will. These ties.

are ordinarily (a) signature or marking by the testator, or signature (not marking) by some other person in his presence and by his direction, with intention thereby to give effect to the writing as a will; (6) attestation by two or more witnesses, each of whom must either have seen the signing or marking above required, or received from the testator a personal' acknowledgment of the signature or mark. Each of the witnesses must 'sign' (to affix his mark'is not enough) in the testator's presence; but it is not necessary that more than one be present at the same time. In other words, the Succession Act only requires the testator's signature or mark to be made or acknowledged in the presence of one witness at a time; and of course it may be made in the presence of one

witness and acknowledged in the presence of another. No more Privileged formalities are required in the case of a blind testator. Fewer wills.

formalities are required where the testator is (a) a soldier employed in an expedition or engaged in actual warfare, or (b) a

mariner at sea. The rules on this subject are contained in Charitable sections 52 and 53. In the case of a bequest to religious or bequests.

charitable uses by a testator having a nephew or niece or any nearer relative, the will must be 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 (sec. 105). Incapaci- 3. Incapacities to take beneficially under a will. These are ties to take the unqualified incapacity of an attesting witness, his or her wife cially or husband, and any person claiming under either of them

(sec. 54), and the incapacities mentioned in the chapter on void bequests, the most important of which is the qualified incapacity of charities (sec. 105), and the unqualified incapacity of a person in whom the thing bequeathed is to vest after the death of some person living at the testator's decease and the minority of a child born or conceived before the death of such person (sec. 101).

· See Milner v. Milner, 1 Ves. 106.

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