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124. Where the Will requires an act to be performed by Performthe legatee within a specified time, either as a condition to be ance of fulfilled before the legacy is enjoyed, or as a condition upon the non-fulfilment of which the subject-matter of the bequest time. is to go over to another person, or the bequest is to cease to have effect; the act must be performed within the time specified, unless the performance of it be prevented by fraud?, in Time al

lowed in which case such further time shall be allowed as shall be quisite to make up for the delay caused by such fraud 2.

re

fraud.

case of

i

1 As to the meaning of fraud,' see above, p. 98.

a In the case of a condition precedent, when the act is required to be performed within a specified time

after the testator's decease, the com-
putation of the term will be exclusive
of the day of his death, Lester v. Gar.
land, 15 Ves. 248.

PART XVII.

OF BEQUESTS WITH DIRECTIONS AS TO APPLICATION OR

ENJOYMENT 1

same to or

of any

Direction

125. Where a fund is bequeathed absolutely to or for the that funds be em

benefit of any person, but the Will contains a direction that it ployed in shall be applied or enjoyed in a particular manner, the legatee particular manner fol- shall be entitled to receive the fund as if the Will had conlowing

tained no such direction. absolute bequest of

Illustration. for benefit

A sum of money is bequeathed towards purchasing a country

residence for A, or to purchase an annuity for A, or to purchase person.

commission in the Army for A?, or to place A in any business. A

chooses to receive the legacy in money. He is entitled to do so '. Direction 126. Where a testator absolutely bequeaths a fund, so as that mode to sever it from his own estate, but directs that the mode of of enjoyment of enjoyment of it by the legatee shall be restricted so as to secure absolute bequest is

a specified benefit for the legatee; if that benefit cannot be to be re- obtained for the legatee, the fund belongs to him as if the stricted, to

Will had contained no such direction. specified benefit for

Illustrations. legatee.

(a) A bequeaths the residue of his property to be divided equally among his daughters, and directs that the shares of the daughters shall be settled upon themselves respectively for life, and be paid to their children after their death. All the daughters die un

secure

3

1 This Part applies to Hindús etc. in the Lower Provinces and in the towns of Madras and Bombay, Act XXI of 1870. Where a Hindú bequeathed his land to his sons, but declared that they should not make a partition thereof for twenty years, the restriction was held void as being repugnant to the gift, i Cal. 104.

? Such purchases are now impossible, see Palmer v. Flower, L. R. 13 Eq. 250.

even though the testator has expressly declared that A shall not be permitted to receive it, Stokes v.Cheek, 29 L. J. Ch. 922. The legatee ought not to be compelled by a Court to do what he may undo the next moment, as by selling the residence, giving up the business, etc.

If A die before receiving the money, his representatives are entitled thereto, Bayne v. Crowther, 20 Beav. 400.

some of

married, the representatives of each daughter are entitled to her share of the residue.

(6) A directs his trustees to raise a sum of money for his daughter, and he then directs that they shall invest the fund, and pay the income arising from it to her during her life, and divide the principal among her children after her death.

The daughter dies without having ever had a child. Her representatives are entitled to the fund'. 127. Where a testator does not absolutely bequeath a fund, Bequest of

fund for so as to sever it from his own estate, but gives it for certain

certain purposes, and part of those purposes cannot be fulfilled, the purposes, fund, or so much of it as has not been exhausted

upon
the ob-

which canjects contemplated by the Will, remains a part of the estate of not be fulthe testator.

Illustrations. (a) A directs that his trustees shall invest a sum of money

in particular way, and shall pay the interest to his son for life, and at his death shall divide the principal among his children ; the son dies without having ever had a child. The fund, after the son's death, belongs to the estate of the testator.

(6) A bequeaths the residue of his estate to be divided equally among his daughters, with a direction that they are to have the interest only during their lives, and that at their decease the fund shall go to their children. The daughters have no children. The fund belongs to the estate of the testator.

filled.

a

1 This and the following section express Lord Cottenham's ruling in Lastence v. Tierney, 1 Mac. & G. 551,

and see Kellett v. Kellett, L. R. I E & I., App. 161.

[graphic]

PART XVIII.

OF BEQUESTS TO AN EXECUTOR 1.

Legatee 128. If a legacy is bequeathed to a person who is named named as

an executor of the Will, he shall not take the legacy unless he executor cannot take proves the Will or otherwise manifests an intention to act as unless he shews in

executor 2 tention to

IUustration, act as executor. A legacy is given to A, who is named an exécutor. A orders

the funeral according to the directions contained in the Will, and dies a few days after the testator, without having proved the Will. A has manifested an intention to act as executor.

1 This Part applies to Hindús etc. that he shall not have it if he does in the Lower Provinces and in the not prove. It will make no difference towns of Madras and Bombay, Act that the executor is aged and incapa XXI of 1870. It extends to every ble by bodily and mental infirmities kind of bequest, specific, demonstra- of proving the will. If an executor tive, or residuary.

prove without a bona fide intention * This is the old rule in England to execute the trusts, but merely to (Cockerell v. Barber, 2 Russ. 599), entitle himself technically to his except in the case of a residuary legacy, he would not be allowed to bequest, Wms. Exors. 1287. The take it (Harford v. Browning, i Cox, Act does not say that if the executor 302). proves he shali have his legacy, but

PART XIX.

a

OF SPECIFIC LEGACIES 1. 129. Where a testator bequeaths to any person a specified Specific

legacy part of his property, which is distinguished from all other defined. parts of his property, the legacy is said to be specific.

Illustrations. (a) A bequeaths to BThe diamond ring presented to him by C.? His gold chain. 'A certain bale of wool.' 'A certain piece of cloth.'

All his household goods, which shall be in or about his dwelling-house in M Street, in Calcutta, at the time of his death.'

The sum of 1,000 rupees in a certain chest.' * The debt which В owes him.'

All his bills, bonds, and securities belonging to him, lying in his lodgings in Calcutta.'

'All his furniture in his house in Calcutta.'

All his goods on board a certain ship then lying in the River
Hooghly.

2,000 rupees which he has in the hands of C.'
*The money due to him on the bond of D.'
'His mortgage on the Rampore Factory

One-half of the money owing to him on his mortgage of
Rampore Factory

*1,000 rupees, being part of a debt due to him from C.? His capital Stock of 1,000l. in East India Stock.'

‘His promissory notes of the Government of India, for 10,000 rupees in their 4 per cent. loan.'

All such sums of money as his executors may, after his death, receive in respect of the debt due to him from the insolvent firm of

*All the wine which he may have in his cellar at the time of his
death.
Such of his horses B
All his shares in the Bank of Bengal.'

may

select.'

a

D and Company

as

This Part applies to Hindús etc. in the lower Provinces and the towns

of Madras and Bombay, Act XXI of 1870.

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