Rules of construc (h) A makes a bequest in favour of the child of which a certain woman, not married to him, is pregnant. The bequest is valid'. 88. Where a Will purports to make two bequests to the tion where 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 prevail in determining the construction to be put upon the Will: Will purports to make two bequests to same person. First. If the same specific thing is bequeathed twice to the same legatee in the same Will, or in the Will and again in a Codicil, he is entitled to receive that specific thing only. Second. 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. Third. 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. Fourth. 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 the four last rules, the word Will does not include a Codicil. Illustrations. (a) A having ten shares, and no more, in the Bank of Bengal made his Will, which contains near its commencement the words 'I bequeath my ten shares in the Bank of Bengal to B.' After other bequests, the Will concludes with the words, and I bequeath my ten shares in the Bank of Bengal to B.' B is entitled simply to receive A's ten shares in the Bank of Bengal. (b) A having one diamond ring, which was given him by B, bequeathed to C the diamond ring which was given him 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. (c) 4, by his Will, bequeaths to B the sum of 5,000 rupees, and afterwards, in the same Will, repeats the bequest in the same words. B is entitled to one legacy of 5,000 rupees only. This section does not apply to or the towns of Madras and Bombay, Hindús etc. in the Lower Provinces (d) 4, by his Will, bequeaths to B the sum of 5,000 rupees, and afterwards, by the same Will, bequeaths to B the sum of 6,000 rupees. B is entitled to 11,000 rupees. (e) 4, by his Will, bequeaths to B 5,000 rupees, and by a Codicil to the Will he bequeaths to him 5,000 rupees. B is entitled to receive 10,000 rupees. Bis (f) 4, by one Codicil to his Will, bequeaths to B 5,000 rupees, and by another Codicil, bequeaths to him 6,000 rupees. B is entitled to receive 11,000 rupees. (g) A, by his Will, bequeaths 500 rupees to B because she was his nurse,' and in another part of the Will bequeaths 500 rupees to B'because she went to England with his children.' B is entitled to receive 1,000 rupees. (h) A, by his Will, bequeaths to B the sum of 5,000 rupees, and also, in another part of the Will, an annuity of 400 rupees. B is entitled to both legacies. (i) 4, by his Will, bequeaths to B the sum of 5,000 rupees, and also bequeaths to him the sum of 5,000 rupees if he shall attain the age of 18. B is entitled absolutely to one sum of 5,000 rupees, and takes a contingent interest in another sum of 5,000 rupees1. tion of 89. A residuary legatee may be constituted by any words Constituthat show an intention on the part of the testator that the residuary person designated shall take the surplus or residue of his legatee. property. Illustrations. (a) 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, &c., to give to B, now at school, towards equipping him to any profession he may hereafter be appointed to.' B is constituted residuary legatee. (b) 4 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. (e) 4 bequeaths all his property to B, except certain stocks and funds, which he bequeaths to C. B is the residuary legatee1. 90. Under a residuary bequest, the legatee is entitled to all Property property2 belonging to the testator at the time of his death, of 1 4, by his last will,' appoints an executor, gives certain legacies, and proceeds thus: After these legacies and my funeral expenses are paid, I leave to my sister B.' B is constituted residuary legatee, In re Bassett's estate, L. R. 14 Eq. 54. Sections 88 and 89 apply to Hindús etc. in the Lower Provinces and the towns of Madras and Bombay, Act XXI of 1870. 2 whether moveable or immoveable, 22 Suth. 174. to which he is entitled. which he has not made any other testamentary disposition which is capable of taking effect1. Illustration. A by his Will bequeaths certain legacies, one of which is void under the hundred and fifth Section 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 zamíndárí, which belongs to him at the time of his death. B is entitled to the two legacies and the zamíndárí as part of the residue. 91. If a legacy be given in general terms, without specifylegacy in ing the time when it is to be paid 2, 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 representatives 1. 92. If the legatee3 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 appear by the Will that the testator intended that it should go to some other person. In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator 5. him.' Illustrations. (a) The testator bequeaths to B '500 rupees which B owes B dies before the testator; the legacy lapses. (b) 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. (c) 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. (d) A sum of money is bequeathed to A for life, and after his 1 whether by reason of lapse, remoteness, or otherwise. But see sec. 95, infra. Secs. 90 and 91 apply to Hindús etc. in the Lower Provinces and the towns of Madras and Bombay, Act XXI of 1870. 2 or delivered. The section applies to bequests of land and of every kind of moveable property. As to vesting where payment or delivery is postponed or the legacies are contingent, see Part xiii, infra. 3 whether of moveable or immove death to B. A dies in the lifetime of the testator; B survives the testator. The bequest to B takes effect. (e) 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 1. The (f) The testator and the legatee perished in the same shipwreck. There is no evidence to show which died first. legacy will lapse2. 93. If a legacy be given to two 3 persons jointly, and of them die before the testator, the other legatee takes whole. Illustration. one Where one of two joint legatees dies before the The legacy is simply to A and B. A dies before the testator. B takes the legacy 2. testator. such case of words 94. But where a legacy is given to legatees in words which Effect in show that the testator intended to give them distinct shares of it, then if any legatee die before the testator, so much of the showing legacy as was intended for him shall fall into the residue of that shares 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 shall only take so much as they would have had if A had survived the testators. intention should be distinct. lapsed 95. Where the share that lapses is a part of the general When residue bequeathed by the Will, that share shall posed of. This shows that the doctrine of lapse applies to contingent bequests. 1 Applies to Hindús, etc., in the Lower Provinces and the towns of Madras and Bombay, Act XXI of 1870. go as undis the bequest was upon trust to divide If the legacy to one of the joint 'The number 'two' is merely for example. A bequest to three or more persons nominatim, or to a class, without more, creates a joint tenancy, and if one of the legatees predecease the testator his interest will survive 5 i. e. all of which no effectual disto the others. But the Courts favour position is made otherwise than by tenancy in common; and even where the residuary clause. share goes as undisposed of. When a 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 of1. 96. Where a bequest 2 shall have been made to any child or bequest to other lineal descendant of the testator, and the legatee shall die in the lifetime of the testator 3, but any lineal descendant of testator's child or lineal descendant does not 4 his shall survive the testator, the bequest shall not lapse, but shall take effect 5 as if the death of the legatee had happened his death in immediately after the death of the testator, unless a contrary testator's intention shall appear by the Will. lapse on lifetime. Bequest to A for B's benefit where A dies in testator's lifetime. Survivor ship in case Illustration. 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 4, 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. 97. 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". 98. Where a bequest is made simply to a described class of of bequest persons, the thing bequeathed shall go only to such as shall be alive at the testator's death. to a described class. 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 5 i. e. shall go to the legatee's representatives, not to the lineal descendant' whose existence prevents the lapse. Sections 95, 96, 97 apply to Hindús etc., Act XXI of 1870; and in the illustration to sec. 95, 'son' would include 'adopted son.' 7 wholly or partially. If, e. g., A bequeaths to B property charged with a legacy to C, and B dies in A's lifetime, C is still entitled to his legacy. |