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PART XVI.

OF CONDITIONAL BEQUESTS",

upon im.

Bequest 113. A bequest upon an impossible ? condition is void. possible

Illustrations. condition.

(a) An estate is bequeathed to A on condition that he shall walk one hundred miles in an hour. The bequest is void.

(6) A bequeaths 500 rupees to B on condition that he shall marry A's daughter. A's daughter was dead at the date of the

Will. The bequest is void. Bequest 114. A bequest upon a condition, the fulfilment of which or immoral would be contrary to law or to morality 3, is void. condition.

Illustrations. (a) A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void.

(6) A bequeaths 5,000 rupees to his niece if she will desert her

husband. The bequest is void. Fulfilment 115. Where a Will imposes a condition to be fulfilled before of condition the legatee can take a vested interest in the thing bequeathed, precedent to vesting the condition shall be considered to have been fulfilled if it has of legacy. been substantially complied with.

Ilustrations, (a) 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 À of his intentions, and has made no objection. A has fulfilled the condition 4.

.

* This Part applies to Hindús etc. in the Lower Provinces and in the towns of Madras and Bombay, Act XXI of 1870.

physically or legally, as, e.g. if A bequeath property to a married woman B on condition that she transfer other property bequeathed to her

by C to her separate use with a clause against anticipation, A's bequest is void, Robinson v. Wheelright, 6 D. M.

3 As to the kind of morality here referred to, see supra, p. 232, note 3.

Qui tacet satis loquitur.

G. 535.

2

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(6) 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.

(c) 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.

(d) 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,

(e) 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.

(f) 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 4 afterwards expresses his approbation of the marriage. A dies. The bequest to B takes effect.

(9) 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. 116. Where there is a bequest to one person and a bequest Bequest to

A and, on of the same thing to another if the prior bequest shall fail, the

failure of second bequest shall take effect upon the failure of the prior prior bebequest, although the failure may not have occurred in the quest, to B. manner contemplated by the testator.

Illustrations. (a) 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.

(6) A bequeaths a sum of money to B, on condition that he shall execnte 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.

117. Where the Will shows an intention that the second Second bebequest shall take effect only in the event of the first bequest tended to failing in a particular manner, the second bequest shall not take effect

only where take effect unless the prior bequest fails in that particular first fails in manner.

quest in

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

118. A bequest may be made to any person with the conover, con- dition superadded that in case a specified uncertain event shall ditional upon the happen, the thing bequeathed shall go to another person ; or, happening that in case a specified uncertain event shall not happen, the or not happening of a thing bequeathed shall go over to another person. In each specified uncertain

case the ulterior bequest is subject to the rules contained in event. Sections 107, 108, 109, 110, 111, 112, 113, 114, 116, 117,

Illustrations. (a) 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 devested and to go to B in case A shall die under 18.

(6) 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.

(c) 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 devested if he dies leaving a son in A's lifetime.

(d) 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.

(e) 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.

119. An ulterior bequest of the kind contemplated by the last preceding Section cannot take effect, unless the condition strictly ful

Condition must be

· Here the gift over was made dependent on an event (A's surviving his wife) which was not proved to have happened; and it did not be. come operative from the mere fact of

the gift to wife failing to have practical operation, for 7 indicated no such intention either expressly or impliedly, Underwood v. Wing, 4 D. M. G. 633.

filled. is strictly fulfilled 1.

Illustrations. (a) A legacy is bequeathed to A, with a proviso that if he 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.

(6) 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.

(c) 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. 120. If the ulterior bequest be not valid, the original be- Original

bequest quest is not affected by it.

not affected

by invaIllustrations.

lidity of

second. (a) An estate is bequeathed to A for his life, with a 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 ?.

(6) An estate is bequeathed to A for her life, and if she do not desert her husband, to B. A is entitled to the estate during her life as if no condition had been inserted in the Will 3.

(c) 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 92, and A is entitled to the estate during his life *. 121. A bequest may be made with the condition super- Bequest

condiadded that it shall cease to have effect in case a specified un- tioned to certain event shall happen, or in case a specified uncertain cease to

have effect event shall not happen.

if specified

uncertain Illustrations.

event shall

happen or (a) An estate is bequeathed to A for his life, with a proviso not happen. Conditions subsequent are con

4 Here the gift over is void, by strued with great strictness, as they reason of being too remote. go to divest estates already vested. So if the condition subsequent be

? Here the condition subsequent is too vague for the Court to enforce it, impossible.

Fillingham v. Bromley, T. & R. 530, Here it is void, as being contra where the words were live and rebonos mores.

side on' a certain estate. VOL. I.

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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.

(6) 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.

(c) 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.

(d) 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. (e) 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 lifetime of A. She thereby loses her contingent interest in the fund.

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Such con- 122. In order that a condition that a bequest shall cease to dition must not be in. have effect may be valid, it is necessary that the event to which valid under it relates be one which could legally constitute the condition sec. 107

of a bequest as contemplated by the one hundred and seventh section.

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Legatee 123. Where a bequest is made with a condition superadded rendering impossible that unless the legatee shall perform a certain act, the subjectact for

matter of the bequest shall go to another person, or the bewhich no time speci- quest shall cease to have effect; but no time is specified for fied and on the performance of the act; if the legatee takes any step nonperformance which renders impossible or indefinitely postpones the perof which subject

formance of the act required, the legacy shall go as if the matter is legatee had died without performing such act. to go over.

Illustrations, (a) 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.

(6) A bequest is made to Å 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 condition. The bequest ceases to have effect.

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