« 이전계속 »
The disability of corporations to take lands by devise seems not Mortmain. to extend to India?. It is clear that they may be legatees of moveables. Minors and lunatics may take by bequest, and their acceptance will be presumed unless such presumption would work injury to the legatee. 4. The modes in which a will, when once well made, may sub- Invalida
tion of sequently become invalid. These are,—
wills. (a) by marriage of the testator (sec. 56). The reason is that marriage creates such a change in the testator's condition, such new obligations and duties, that they raise an inference that he would not adhere to a will made previous to their existence. This reason does not apply to a will made in exercise of a power to determine the disposition of property of which the testator is not the owner, when the property would not in default of exercising the power pass to his new family. In this case, therefore, the will is not revoked by marriage.
(6) by a subsequent testamentary instrument (sec. 57) incapable of standing with the former will.
(c) by a writing declaring an intention (i. e. a present intention) to revoke the will and executed in the manner prescribed for a will (sec. 57). In the case of a privileged will writing may be dispensed with (sec. 59).
(d) by destroying the will with intent to revoke it (sec. 57). The wills of Pársís are governed by the Succession Act. Those Pársís. of the taluqdárs and grantees of Oudh by Act I of 1869, secs.
luqdárs. 19, 20.
V. EXECUTORS AND ADMINISTRATORS. Under the Succession Act, the inheritance does not pass immediately through the operation of the will, where there is one, or by the operation of law, where there is an intestacy; and property of every kind devolves through the same channel. The Act, therefore, facilitates the constitution of a general representative of the deceased with unlimited power, provides (secs. 179– 188) for the probate of wills and grant of letters of administration—here following closely the Act regulating and the practice of the English Court of Probate—and declares the powers (secs. 267-275), the duties (secs. 276-291), and the liabilities (secs. 327 328) of executors and administrators. The chief points in Chiefvariawhich the Act here varies from English law are these. In tions from
law. Mayor of Lyons v. E. I. Company,
v. Reynolds, 1 Phill. 185, 192; and 1 Moo. I. A. Ca., 175, 296; Mitford
see Atty. Gen. v. Stewart, 2 Mer. 143.
England an executor on taking probate of his own testator's will becomes, ipso facto, executor not only of that will, but also of the will of any testator of whom that other was sole or surviving executor, and so on ad infinitum upwards. Not so under the Succession Act. The probate expires with the death of the grantee, and the effect of secs, 2, 196 and 229 is to discard the dangerous doctrine of derivative executorship. In England, again, co-executors, however numerous, are regarded as an individual person, and a purchaser of the assets from a co-executor is therefore not bound to enquire whether the other executors concur, Under the Succession Act, however (sec. 271), if the testator appoints A, B, C and D to be executors, and directs that two of them shall be a quorum, nothing can be done by a single executor. The result is that in India no one is quite safe in dealing with a single executor unless he sees the probate and ascertains either that there are no other executors or that the will contains no such direction. In England, again, a husband is liable for his wife's devastavit, because, as he became possessed of the assets in her right, and as she had no power to act alone, his assent to those acts was presumed. It would seem, however, that by the Succession Act (secs. 4 and 275) this liability is abolished. For under sec. 4 he acquires no interest in her property, and, under sec. 275, she has all the powers of an ordinary executor. Therefore she has power to act alone. Hence his assent to her acts is unnecessary and will not be presumed. Therefore on the principle cessante ratione cessat et ipsa lex he will not be liable. Lastly, in England an executor may pay any creditor (whether himself or another person) in preference to another creditor of equal degree. Under the Indian Act, after paying deathbed and funeral expenses, charges of probate, and wages, the executor (sec. 282) must pay all such debts as he knows of (including his own) equally and rateably, as far as the assets of the deceased will extend.
The Act (sec. 330) saves the rights, duties and privileges of the Administrators-General". These are three officers-one at Calcutta, one at Madras, and one at Bombay, with an agent at the India Office in London-whose jurisdiction extends to the whole of India (including the Native States) and whose rights and duties are now regulated by Act II of 1874, amended by Act IX
1 They are also saved by the Hindu 1881, sec. 149), the Trusts Act (II of Wills Act (XXI of 1870, sec. 5), the 1882, sec. 50), and the Companies Act Probate and Administration Act (V of (VI of 1882, sec. 144, cl. 9).
of 1881. They are entitled to administer in preference to a
When the assets do not exceed Rs. 1000 in value, the Adminis- Certificates trator-General may grant a certificate entitling the grantee to
1. by Adreceive the property therein mentioned belonging to the estate of ministrator the deceased. A copy of the certificate with a receipt annexed, General ; when signed by the grantee, is a full discharge for payment or delivery to him of the money or security therein mentioned (Act II of 1874, secs. 36-41). And where debts are payable in respect of the estate of a deceased Hindú or Muhammadan, the District 2. by Dis
. Court within whose jurisdiction he has ordinarily resided at the triot
Court. time of his death, may (under Act XXVII of 1860, secs. 3, 4) grant a certificate, which affords full indemnity to debtors paying their debts to the grantee. In the absence of a proper system of probate and administration, the holder of such a certificate is, in practice, regarded as having a representative title to the whole estate of the deceased. This result is not only opposed to the intention of the legislature, but is attained at an inadequate costthe court-fee on à certificate being only two per cent
See Matthews v. Bagshaw, 14 Beav. 123 ; Cockeroll v. Barber, 1 Sim. 23,
S.C. 2 Russ. 585.
amount of the debts in respect of which it is granted. So that a title to an estate worth (say) a lakh of rupees may, if the debts
due to it amount to (say) Rs. 100, be obtained at the cost of Rs. 2. Adminis- Another kind of official administration is provided by the tration by Companies Act VI of 1882, sec. 144, which permits the official liquidator. liquidator, with the sanction of the Court, to take out, if neces
sary, in his official name, letters of administration to the estate
of any deceased contributory. Executor
Where a person improperly intermeddles with the estate of the de son tort.
deceased, while there is no rightful executor or administrator in existence, he is called an “executor of his own wrong,' and is liable to the extent of the assets which have come to his hands, after deducting payments made to the rightful executor or administrator, and payments made in a due course of administration. The rules on this subject are contained in secs. 265 and 266.
We may leave this part of the subject with the remark that the Succession Act contains no provision empowering an heir to refuse to accept, or entitling him to be relieved from liabilities in excess of assets. Such a provision in the case of Hindú heirs in the Presidency of Bombay is made by Bom. Act VII of 1866.
Besides treating of the universal succession which takes place when an executor or administrator succeeds to the aggregate of the rights and liabilities of a testator or intestate, the Indian Act deals with two forms of singular succession, one, the Legacy, the other the Donation mortis causa.
A legacy or bequest (the two words are used as synonymous) is a deduction from the inheritance for the benefit of some one. Herein it differs from a donation mortis causa, which, though it takes effect on the donor's death, does not do so by way of deduction from the inheritance?. Under the Succession Act, as under the Roman and English law, a distinction is drawn between the 'vesting' of a legacy (secs. 91, 106-108) and its becoming payable (sec. 297). A legacy may be revoked by the testator either expressly? or impliedly. A legacy is revoked impliedly when it is adeemed, that is, when it cannot take effect by reason of the subject-matter having been withdrawn from the operation of the will. This takes place when anything which has been
1 Holland, Jurisprudence, 138, 139. 2 Sect. 57 clearly contemplates the
revocability of a part only of a will,
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 rules as to this matter are contained in secs. 139–153.
A legacy may also lapse and form part of the residue of the Lapse. testator's property. This happens when the legatee does not survived the testator, unless it appear by the will that the testator intended that the legacy should go to some other person. The rules on this subject are contained in secs. 92–98.
A legacy is void under the Succession Act only if inconsistent Void with the rules as to the person who may receive it. These rules legacies. are contained in secs. 99-105. One of them is the Indian 'rule against perpetuities,' viz. that 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 decease, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he complete the age of eighteen, the thing bequeathed is to belong. The Act also pro- Accumula
tion, vides ? that a direction to accumulate the income arising from any property shall be void, except where the property is immoveable, or where accumulation is directed to be made from the death of the testator. In either of these cases the direction will be valid in respect only of the income arising from the property within one year next following the testator's death. The Act also provides 3 that a bequest to a person not in existence at the testator's death, Bequests subject to a prior bequest, must comprise the whole of the remain-to
persons. ing interest of the testator in the thing bequeathed; and that where, at the time fixed for the payment of a legacy, the person for whom it was intended has not come into existence, the bequest shall fail. Here, too, provision is made against deathbed bequests to charitable uses by persons having nephews or nieces or any nearer relatives. The special formalities in such cases have been
In Part XVI, which relates to conditional bequests, the Act Conditional excludes from India the refined distinctions which the Court of
bequests. Chancery has, in relation to personal property, borrowed from the Ecclesiastical Courts. It provides in effect that the words of the will shall be adhered to when no condition inconsistent with law
* There is a lapse where the testator and the legatee die at the same tiine. In the absence of evidence, there is no rule as to survivorship-nothing like the Civil, French, or Muhammadan law de commorientibus.
2 Sect. 104. 3 Sect. 100. 4 Sect. 99
3 Sect. 105. As to charitable bequests by Natives, see i Bom. H. C. 71.