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or morality is sought to be imposed : that all bequests made upon
illegal, immoral or impossible conditions shall be void, and that
wherever the testator's wishes can be carried into effect, if expressed
in one way, they ought to be permitted to take effect, if expressed
in
any

other way; so that whatever he can do by a limitation he is allowed to do by imposing a condition. The Act also provides that whenever a condition subsequent is valid, if accompanied with a gift over, it shall be valid without a gift over and shall not be treated as if it had been inserted merely in terrorem.

Part XVII contains directions as to bequests with directions as

to the application or enjoyment of the subject matter. Bequeststo Part XVIII relates to bequests to an executor. He is not to executors. take the legacy unless he proves the will or otherwise manifests an

intention to act as executor.

Specific legacies are dealt with by Part XIX: demonstrative legacies by Part XX, and the ademption of legacies by Part XXI.

Part XXII contains provisions, some of which are modelled on Locke King's Act (17 & 18 Vic. c. 113), as to the payment of liabilities in respect of the subject of a bequest. In all cases of specific bequests of moveable or immoveable property, subject to any pledge or incumbrance created by the testator, the legatee, unless a contrary intention appears by the will, is to take the

bequest subject to such pledge or incumbrance. Bequests of The next four Parts relate, respectively, to bequests of things things described in described in general terms, bequests of the interest or produce general of a fund, bequests of annuities, and legacies to creditors and terms, of the produce portioners. Here the English law is departed from, the Act in of a fund, of effect providing that (1) where a debtor bequeaths to his creditor annuities, legacies to

a legacy equal to, or exceeding the amount of, his debt, the creditors testator shall not be presumed to have meant the legacy to be a

satisfaction of the debt; (2) where a parent, who is under obligation tioners.

by contract to provide a portion for his child, fails to do so and afterwards bequeaths a legacy to the child, he shall not be presumed to mean the legacy to be a satisfaction or fulfilment of the obligation; and (3) where a father bequeaths a legacy to his child, and afterwards advances & portion for that child, he shall

not be presumed to adeem the legacy thereby. Election. Part XXVII states the leading rules as to the doctrine of

election, as applied to cases where a man by his will purports to dispose of something which he has no right to dispose of. The principle is that a person who accepts a benefit under any transaction must adopt the whole, giving full effect to its provisions and renouncing every right inconsistent with it. This of course

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applies also to tranfers inter vivos, and the Transfer of Property Act (sec. 35) accordingly contains provisions corresponding with those of Part XXVII.

The subject of Legacies may be left with the remark that the InterpretaSuccession Act contains (in secs. 61-91) some excellent rules as to tion of

wills. the interpretation of wills. In framing these rules Mr. Hawkins' book on this subject has been much used. The rules giving a legacy absolutely to the first taker, where words of limitation and not of purchase are added, appear to render it impossible in India to create an estate tail by will.

VII. DONATIONS MORTIS Causa. Gifts of moveables in contemplation of death (commonly called Donations mortis causa) are dealt with by sec. 178, which should have been placed at the end of the Act. As above remarked, they do not take effect by way of deduction from the inheritance. They need not therefore be proved, and consent of the administrator or executor is unnecessary. But they resemble legacies in two respects: they are ambulatory and revocable during the donor's life, and they are liable to his debts upon deficiency

of assets.

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The formalities necessary to this form of gift are almost nil. All that is required is delivery of the possession of the property to keep as a gift in case the donor die of the illness from which he is suffering at the date of the delivery. Illustration (6) shows that this delivery may be symbolic.

Cases of this kind demand the strictest scrutiny. So many opportunities and such strong temptations present themselves to unscrupulous persons to pretend these death-bed donations, that there is always danger of having an entirely fabricated case set up. And without any imputation of fraudulent contrivance, it is so easy to mistake the meaning of persons languishing in a mortal illness, and by a slight change of words to convert their expressions of intended benefit into an actual gift of property, that no case of this description should prevail unless it is supported by evidence of the clearest and most unequivocal character. So said Lord Chelmsford in a case from the Isle of Man ? His remarks are at least as applicable to Indians as to Manxmen.

The subject of donations mortis causa made by a Hindú has been learnedly discussed by the High Court at Madras ?.

1

Cosnahan v. Grice, 15 Moore, P. C. 223. ' 6 Mad. H. C. 270; and see West and Bühler, Digest of the Hindú Law, 219.

1

APPLICATION OF THE SUCCESSION ACT TO HINDÚS

AND BUDDHISTS. It will be remembered that the Succession Act (sec. 331) declares that its provisions shall not apply to intestate or testamentary succession to the property of any Hindú, Muhammadan, or Buddhist. But this total exclusion from the benefits of a useful Code did not long remain in force.

Although the Sanskrit text-books of Hindú law nowhere recognise a posthumous disposition of property, the validity of a Hindú's will had long been admitted by the Courts in the Presidencies of Bengal' and Bombay? In Madras also, after some fluctuations of opinion, it was settled in 1863 that a Hindu's testamentary power is co-extensive with his independent right of alienation inter vivos; but this must be understood as excluding a testamentary disposal of property held by others in common with the testator”. Liberty of testation is thus thoroughly established throughout peninsular India ", and the practice of making wills is beginning to prevail amongst the Burmese Buddhists, although their law of succession is founded on that of the Hindús. The Muhammadan law recognises the testamentary power, which, however, without the consent of the heirs, does not extend to more than one-third of the testator's estate 6.

In the case of the Hindús and Burmese the power in question has probably been derived from the English law ?, and its exercise doubtless produces in India the beneficial effects which it has produced in England and elsewhere, by stimulating the circulation of property and quickening the stagnation of society. But the power was engrafted on the Hindú system and is still used by the Muhammadans, without any of those securities for its due exercise, such as the requirement of writing, signature and attestation, which have been found desirable in Europe. Nor

See 2 Moo. I. A. Ca. 54: 6 ibid. with whom the Arabs came in contact 309 : 10 ibid. 279: 12 ibid. 1 : 6 Suth. in Egypt, Syria, and Mesopotamia. Civ. R. IOI.

? Mr. Mayne, Hindu Law, $ 337, 2 See 3 Bom. H. C. 6.

thinks that the true origin of the I Mad. H. C. 326.

testamentary power is to be sought · West and Bühler, Digest, 219, for in that Brahmanical influence, the note (c).

working of which be traces in the law 9 Moo. I. A. Ca. 123, 135; and as of partition and alienation. Why then to the N. W. Provinces, ibid. 96. do the Native languages descended

• See the Hedáya, iv. 468: 5 Moo. from Sanskrit not even possess a word I. A. 199 : 2 Mad. H. C. Rep. 350. It to express the idea of a will? Why has been above suggested that Muham- is the earliest known will of a Hindú madan wills are ultimately owing to dated 1758 ? the civilians of the Eastern Empire,

See Maine's Ancient Law, p. 194.

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were Native testators subject to any restraints such as exist in England in the case of devises to religious or charitable uses, of the postponement of the acquisition of the absolute interest in property, and of prospective accumulations of its income.

Thus the High Court of Bombay had decided that a Hindu's will need not be attested", and the High Court of Madras had declared, in a learned judgment given by Mr. Justice Holloway, that a Hindú's will need not be in writing; in other words, that a Hindú may make a valid nuncupative will, and this without any formalities similar to those required in such cases by European legal systems. So Hindús' nuncupative wills were held valid by the late Supreme Court at Fort William'; they were frequently recognised by the present High Court of Judicature for Bengal; and in Bombayo the High Court has upheld such a will though made after the Hindú Wills Act came into force. Considering the facilities with which frauds in setting up nuncupative wills are attended (for false swearing is more easy to perpetrate and more difficult to detect than forgery), it may perhaps be doubted whether the benefits above mentioned arising from the introduction among the Natives of the testamentary power are not counterbalanced by the encouragement which its recognition by our Courts affords to perjury". Moreover, the same evidence that sets up a false oral will may practically revoke a true written one.

The witness has only to declare that the testator made an oral will subsequent to the date of the written

1

Bom. 7.

i Bom. H. C. 77: 7 ibid. 224 : 3 5 An extract from the Statement of

Objects and Reasons accompanying a

2 Mad. H. C. 37.

bill framed by Sir A. Buller for the * The possibility of a Hindú making prevention of fraud may here be usea valid oral will was admitted on the fully quoted : “The Council is aware 6th Feb. 1831 by Peel C.J. and that, except in the Presidency Towns Colvile J. in Sreemutty Woomasoon- (and even there as regards Hindús and deny Dossar Bohoo Ranee v. Maha- Muhammadans), real property may be rajah Jaudubindrokistno Bahadoor alienated, and all sorts of property (only reported in the Englishman, a be willed away, by word of mouth, Calcutta newspaper, of ith Feb. that a verbal authority to a wife to 1831), though in that case the evi. adopt a son is sufficient, and that no dence of the factum of the alleged

writing is required to evidence any will was insufficient. In a later case, contract. The result of this system reported in 3 Suth. Civ. R. 138, the naturally is that persons are daily High Court at Fort Williain said that sworn to have given or willed away under the Hindú law a nuncupative property when they never did so, to

have authorized adoptions which they ' 1 Bom. 641. The will did not never did authorize, and to have en. cornprise any immoveable property to

tered into contracts of which in truth they never dreamed.'

will is legal.

which the Act applied.

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will and revoking the latter, or he has only to declare that the testator gave a verbal authority to destroy the will, and his evidence, if believed, upsets the written will, however solemnly executed or carefully preserved. Lastly, even in the case of a genuine testamentary disposition by word of mouth, the certainty of writing is replaced by the frailty of memory.

Then, as to the non-existence of restraints on the testamentary power: a Native may now, on his death-bed, when his mind is enfeebled by disease or fear, deprive his nearest relations of selfacquired property which would otherwise have devolved upon them, and bequeath it in accordance with the dictates of his priests or the promptings of his own superstition. A Native testator, in the absence of anything like what is technically called the rule against perpetuities, may lock up his estate for an indefinite time, and thus obstruct the circulation of property, check the improvement of land, and withdraw capital from its natural employment in commerce.

A Native testator may legally create an accumulating trust; absorbing the entire income of property not merely (as in the well-known Thellusson case) during the full period for which the vesting of property may, according to English law, be protracted, but (for anything to the contrary enacted by the Legislature or laid down by the Judges) for the full time expressed by the Native formula of limitation, achandrárkam, 'so long as moon and sun endure.' Thus in the case of a bequest to the testator's family-idol, with directions that, after its expenses are paid, the surplus shall belong to certain persons and their descendants in the male line as a joint family and that none of these legatees shall have power to alienate, the Privy Council has held ? that such a testamentary disposition is effectual, although the family may obviously remain undivided for ever. There is reason to fear, too, that under colour of such a bequest to religious uses, a Hindu often not only enjoys property but trades with it, without his beneficial interest being subject to the just demands of his creditors. It may be that the creditors would have a right to come against the surplus income of the property after providing thereout for the expenses of the idol. But the ascertainment of what ought to be allowed for such expenses is generally a matter of such difficulty as practically to reduce that right to a nullity.

See Wharram v. Wharram, 3 Swab. & T. 301. As to the sufficiency of a verbal authority by a Hindú testator to destroy his will, though the

will is not in fact destroyed, see L. R. 4 I. A. 228 : (S. C.) 3 Cal. 626.

2 8 Moo, I. A. Ca. 66.

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