CHAPTER V. Of the Attestation, Revocation, Alteration and Revival of Wills
CHAPTER VI. Of the construction of Wills
Section 74. Wording of wills.
It is not necessary, that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom.
Section 75. Inquiries to determine questions as to object or subject of will.
For the purpose of determining questions as to what person or what property is denoted by any words used in a will, a Court shall inquire into every material fact relating to the persons who claim to be interested under such will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduce to the right application of the words which the testator has used.
Illustrations
(i) A, by his will, bequeaths 1,000 rupees to his eldest son or to his youngest grandchild, or to his cousin, Mary. A Court may make inquiry in order to ascertain to what person the description in the will applies.
(ii) A, by his will, leaves to B “my estate called Black Acre”. It may be necessary to take evidence in order to ascertain what is the subject-matter of the bequest; that is to say, what estate of the testator’s is called Black Acre.
(iii) A, by his will, leaves to B “the estate which I purchased of C”. It may be necessary to take evidence in order to ascertain what estate the testator purchased of C.
Section 76. Misnomer or misdescription of object.
(1) Where the words used in a will to designate or describe a legatee or a class of legatees sufficiently show what is meant, and error in the name or description shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him, and a mistake in the description of a legatee may be corrected by the name.
Illustrations
(i) A bequeaths a legacy to “Thomas, the second son of my brother John”. The testator has an only brother named John, who has no son named Thomas, but has a second son whose name is William. William will have the legacy.
(ii) A bequeaths a legacy “to Thomas, the second son of my brother John”. The testator has an only brother, named John, whose first son is named Thomas and whose second son is named William. Thomas will have the legacy.
(iii) The testator bequeaths his property “to A and B, the legitimate children of C”. C has no legitimate child, but has two illegitimate children, A and B. The bequest to A and B takes effect, although they are illegitimate.
(iv) The testator gives his residuary estate to be divided among “my seven children” and, proceeding to enumerate them, mentions six names only. This omission will not prevent the seventh child from taking a share with the others.
(v) The testator, having six grandchildren, makes a bequest to “my six grandchildren” and, proceeding to mention them by their Christian names, mentions one twice over omitting another altogether. The one whose name is not mentioned will take a share with the others.
(vi) The testator bequeaths “1,000 rupees to each of the three children of A”. At the date of the will A has four children. Each of these four children will, if he survives the testator, receive a legacy of 1,000 rupees.
Section 77. When words may be supplied.
Where any word material to the full expression of the meaning has been omitted, it may be supplied by the context.
Illustration
The testator gives a legacy of “five hundred” to his daughter A and a legacy of “five hundred rupees” to his daughter B. A will take a legacy of five hundred rupees.
Section 78. Rejection of erroneous particulars in description of subject.
If the thing which the testator intended to bequeath can be sufficiently identified from the description of it given in the will, but some parts of the description do not apply, such parts of the description shall be rejected as erroneous, and the bequest shall take effect.
Illustrations
(i) A bequeaths to B “my marsh-lands lying in L and in the occupation of X”. The testator had marsh-lands lying in L but had no marsh-lands in the occupation of X. The words “in the occupation of X” shall be rejected as erroneous, and the marshlands of the testator lying in L will pass by the bequest.
(ii) The testator bequeaths to A “my zamindari of Rampur”. He had an estate at Rampur but it was a taluq and not a zamindari. The taluq passes by this bequest.
Section 79. When part of description may not be rejected as erroneous.
If a will mentions several circumstances as descriptive of the thing which the testator intends to bequeath, and there is any property of his in respect of which all those circumstances exist, the bequest shall be considered as limited to such property, and it shall not be lawful to reject any part of the description as erroneous, because the testator had other property to which such part of the description does not apply.
Explanation.- In judging whether a case falls within the meaning of this section, any words which would be liable to rejection under section 78 shall be deemed to have been struck out of the will.
Illustrations
(i) A bequeaths to B “my marsh-lands lying in L and in the occupation of X”. The testator had marsh-lands lying in L, some of which were in the occupation of X, and some not in the occupation of X. The bequest will be considered as limited to such of the testator's marsh-lands in L as were in the occupation of X.
(ii) A bequeaths to B “my marsh-lands lying in L and in the occupation of X, comprising 1,000 bighas of lands”. The testator had marshlands lying in L some of which were in the occupation of X and some not in the occupation of X. The measurement is wholly inapplicable to the marsh-lands of either class, or to the whole taken together. The measurement will be considered as struck out of the will, and such of the testator's marsh-lands lying in L as were in the occupation of X shall alone pass by the bequest.
Section 80. Extrinsic evidence admissible in cases of patent ambiguity.
Where the words of a will are unambiguous, but it is found by extrinsic evidence that they admit of applications, one only of which can have been intended by the testator, extrinsic evidence may be taken to show which of these applications was intended.
Illustrations
(i) A man, having two cousins of the name of Mary, bequeaths a sum of money to “my cousin Mary”. It appears that there are two persons, each answering the description in the will. That description, therefore, admits of two applications, only one of which can have been intended by the testator. Evidence is admissible to show which of the two applications was intended.
(ii) A, by his will, leaves to B “my estate called Sultanpur Khurd”. It turns out that he had two estates called Sultanpur Khurd. Evidence is admissible to show which estate was intended.
Section 81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency.
Where there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of the testator shall be admitted.
Illustrations
(i) A man has an aunt, Caroline, and a cousin, Mary, and has no aunt of the name of Mary. By his Will he bequeaths 1,000 rupees to “my aunt, Caroline” and 1,000 rupees to “my cousin, Mary” and afterwards bequeaths 2,000 rupees to “my before-mentioned aunt, Mary”. There is no person to whom the description given in the Will can apply, and evidence is not admissible to show who was meant by “my before-mentioned aunt, Mary”. The bequest is, therefore, void for uncertainty under section 89.
(ii) A bequeaths 1,000 rupees to ........... leaving a blank for the name of the legatee. Evidence is not admissible to show what name the testator intended to insert.
(iii) A bequeaths to B .......................rupees, or “my estate of ....................... ” Evidence is not admissible to show what sum or what estate the testator intended to insert.
Section 82. Meaning or clause to be collected from entire Will.
The meaning of any clause in a Will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other.
Illustrations
(i) The testator gives to B a specific fund or property at the death of A, and by a subsequent clause gives the whole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property in A for life, and after his decease in B; it appearing from the bequest to B that the testator meant to use in a restricted sense the words in which he describes what he gives to A.
(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the whole of his estate to A, and in another part of his Will bequeaths Black Acre to B, the latter bequest is to be read as an exception out of the first as if he had said “I give Black Acre to B, and all the rest of my estate to A”.
Section 83. When words may be understood in restricted sense, and when in sense wider than usual.
General words may be understood in a restricted sense where it may be collected from the Will that the testator meant to use them in a restricted sense; and words may be understood in a wider sense than that which they usually bear, where it may be collected from the other words of the Will that the testator meant to use them in such wider sense.
Illustrations
(i) A testator gives to A “my farm in the occupation of B”, and to C “all my marsh-lands in L”. Part of the farm in the occupation of B consists of marsh-lands in L, and the testator also has other marsh-lands in L, The general words, “all my marsh-lands in L”, are restricted by the gift to A. A takes the whole of the farm in the occupation of B, including that portion of the farm which consists of marshlands in L.
(ii) The testator (a sailor on ship-board) bequeathed to his mother his gold ring, buttons and chest of clothes, and to his friend, A (a shipmate) his red box, clasp-knife and all things not before bequeathed. The testator's share in a house does not pass to A under this bequest.
(iii) A, by his Will, bequeathed to B all his household furniture plate, linen, china, books, pictures and all other goods of whatever kind; and afterwards bequeathed to B a specified part of his property. Under the first bequest is B entitled only to such articles of the testator’s as are of the same nature with the articles therein enumerated.
Section 84. Which of two possible constructions preferred.
Where a clause is susceptible of two meanings according to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred.
Section 85. No part rejected, if it can be reasonably construed.
No part of a Will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it.
Section 86. Interpretation of words repeated in different parts of will.
If the same words occur in different parts of the same will, they shall be taken to have been used everywhere in the same sense, unless a contrary intention appears.
Section 87. Testator’s intention to be effectuated as far as possible.
The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible.
Illustration
The testator by a will made on his death-bed bequeathed all his property to C.D. for life and after his decease to a certain hospital. The intention of the testator cannot take effect to its full extent because the gift to the hospital is void under section 118, but it will take effect so far as regards the gift to C.D.
Section 88. The last of two inconsistent clauses prevails.
Where two clauses of gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
Illustrations
(i) The testator by the first clause of his will leaves his estate of Ramnagar “to A,” and by the last clause of his will leaves it “to B and not to A”. B will have it.
(ii) If a man, at the commencement of his will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.
Section 89. Will or bequest void for uncertainty.
A will or bequest not expressive of any definite intention is void for uncertainty.
Illustration
If a testator says “I bequeath goods to A,” or “I bequeath to A,” or “I leave to A all the goods mentioned in the Schedule” and no Schedule is found, or “I bequeath ‘money,’ ‘wheat,’ ‘oil,’ ” or the like, without saying how much, this is void.
Section 90. Words describing subject refer to property answering description at testator’s death.
The description contained in a will of property, the subject of gift, shall, unless a contrary intention appears by the will, be deemed to refer to and comprise the property answering that description at the death of the testator.
Section 91. Power of appointment executed by general bequest.
Unless a contrary intention appears by the will, a bequest of the estate of the testator shall be construed to include any property which he may have -power to appoint by will to any object he may think proper, and shall operate as an execution of such power; and a bequest of property described in a general manner shall be construed to include any property to which such description may extend, which he may have power to appoint by will to any object he may think proper, and shall operate as an execution of such power.
Section 92. Implied gift to objects of power in default of appointment.
Where property is bequeathed to or for the benefit of certain objects as a specified person may appoint or for the benefit of certain objects in such proportions as a specified person may appoint, and the will does not provide for the event of no appointment being made; if the power given by the will is not exercised, the property belongs to all the objects of the power in equal shares.
Illustration
A, by his will bequeaths a fund to his wife, for her life, and directs that at her death it shall be divided among his children in such proportions as she shall appoint. The widow dies without having made any appointment. The fund will be divided equally among the children.
Section 93. Bequest to “heirs,” etc., of particular person without qualifying terms.
Where a bequest is made to the “heirs” or “right heirs” or “relations” or “nearest relations” or “family” or “kindred” or “nearest of kin” or “next-of-kin” of a particular person without any qualifying terms, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property.
Illustrations
(i) A leaves his property “to my own nearest relations”. The property goes to those who would be entitled to it if A had died intestate, leaving assets for the payment of his debts independently of such property.
(ii) A bequeaths 10,000 rupees “to B for his life, and, after the death of B, to my own right heirs”. The legacy after B’s death belongs to those who would be entitled to it if it had formed part of A’s unbequeathed property.
(iii) A leaves his property to B; but if B dies before him, to B’s next-of kin; B dies before A; the property devolves as if it had belonged to B, and he had died intestate, leaving assets for the payment of his debts independently of such property.
(iv) A leaves 10,000 rupees “to B for his life, and after his decease to the heirs of C”. The legacy goes as if it had belonged to C, and he had died intestate, leaving assets for the payment of his debt independently of the legacy.
Section 94. Bequest to “representatives”, etc., of particular person.
Where a bequest is made to the “representatives” or “legal representatives” or “personal representatives” or “executors or administrators” of a particular person, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate in respect of it.
Illustration
A bequest is made to the “legal representatives” of A. A has died intestate and insolvent. B is his administrator. B is entitled to receive the legacy, and Will apply it in the first place to the discharge of such part of A’s debt as may remain unpaid: if there be any surplus B Will pay it to those persons who at A’s death would have been entitled to receive any property of A’s which might remain after payment of his debts, or to the representatives of such persons.
Section 95. Bequest without words of limitation.
Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him.
Section 96. Bequest in alternative.
Where a property is bequeathed to a person with a bequest in the alternative to another person or to a class of persons, then, if a contrary intention does not appear by the Will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy.
Illustrations
(i) A bequest is made to A or to B. A survives the testator. B takes nothing.
(ii) A bequest is made to A or to B. A dies after the date of the Will, and before the testator. The legacy goes to B.
(iii) A bequest is made to A or to B. A is dead at the date of the Will. The legacy goes to B.
(iv) Property is bequeathed to A or his heirs. A survives the testator. A takes the property absolutely.
(v) Properly is bequeathed to A or his nearest of kin. A dies in the lifetime of the testator. Upon the death of the testator, the bequest to A’s nearest of kin takes effect.
(vi) Properly is bequeathed to A for life, and after this death to B or his heirs. A and B survive the testator. B dies in A’s lifetime. Upon A’s death the bequest to the heirs of B takes effect.
(vii) Property is bequeathed to A for life, and after his death to B or his heirs. B dies in the testator's lifetime. A survives the testator. Upon A's death the bequest to the heirs of B takes effect.
Section 97. Effect of words describing a class added to bequest to person.
Where property is bequeathed to a person, and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will.
Illustrations
(i) A bequest is made— to A and his children,
to A and his children by his present wife, to A and his heirs,
to A and the heirs of his body,
to A and the heirs male of his body, to A and the heirs female of his body, to A and his issue,
to A and his family,
to A and his descendants,
to A and his representatives,
to A and his personal representatives, to A, his executors and administrators.
In each of these cases, A takes the whole interest which the testator had in the property.
(ii) A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy.
(iii) A bequest is made to A for life and after his death to his issue. At the death of A the property belongs in equal shares to all persons who then answer the description of issue of A.
Section 98. Bequest to class of persons under general description only.
Where a bequest is made to a class of persons under a general description only, no one to whom the words of the description are not in their ordinary sense applicable shall take the legacy.
Section 99. Construction of terms.
In a will-
(a) the word “children” applies only to lineal descendants in the first degree of the person whose “children” are spoken of;
(b) the word “grandchildren” applies only to lineal descendants in the second degree of the person whose “grand children” are spoken of;
(c) the words “nephews” and “nieces” apply only to children of brothers or sisters;
(d) the words “cousins,” or “first cousins,” or “cousins-german,” apply only to children of brothers or of sisters of the father or mother of the person whose “cousins,” or “first cousins,” or “cousins-german,” are spoken of;
(e) the words “first cousins once removed” apply only to children of cousins-german, or to cousins-german of a parent of the person whose “first cousins once removed” are spoken of;
(f) the words “second cousins” apply only to grandchildren of brothers or of sisters of the grandfather or grandmother of the person whose “second cousins” are spoken of;
(g) the words “issue” and “descendants” apply to all lineal descendants whatever of the person whose “issue” or “descendants” are spoken of;
(h) words expressive of collateral relationship apply alike to relatives of full and of half blood; and
(i) all words expressive of relationship apply to a child in the womb who is afterwards born alive.
Section 100. Words expressing relationship denote only legitimate relatives or failing such relatives reputed legitimate.
In the absence of any intimation to the contrary in a will, the word “child,” the word “son”, the word “daughter” or any word which expresses relationship, is to be understood as denoting only a legitimate relative, or, where there is no such legitimate relative, a person who has acquired, at the date of the Will, the reputation of being such relative.
Illustrations
(i) A having three children, B, C and A of whom B and Care legitimate and D is illegitimate leaves his property to be equally divided among “my children”. The property belongs to B and C in equal shares, to the exclusion of D.
(ii) A, having a niece of illegitimate birth, who has acquired the reputation of being his niece and having no legitimate niece, bequeaths a sum of money to his niece. The illegitimate niece is entitled to the legacy.
(iii) A, having in his Will enumerated his children, and named as one of them B, who is illegitimate, leaves a legacy to “my said children”. B Will take a share in the legacy along with the legitimate children.
(iv) A leaves a legacy to “the children of B”. B is dead and has left none but illegitimate children. All those who had at the date of the Will acquired the reputation of being the children of B are objects of the gift.
(v) A bequeaths a legacy to “the children of B”. B never had any legitimate child. C and D had, at the date of the Will, acquired the reputation of being children of B. After the date of the Will and before the death of the testator, E and F were born, and acquired the reputation of being children of B. Only C and D are objects of the bequest.
(vi) A makes a bequest in favour of his child by a certain woman, not his wife. B had acquired at the date of the Will the reputation of being the child of A by the woman designated. B takes the legacy.
(vii) A makes a bequest in favour of his child to be born of a woman who never becomes his wife. The bequest is void.
(viii) A makes a bequest in favour of the child of which a certain woman, not married to him, is pregnant. The bequest is void.
Section 101. Rules of construction where will purports to make two bequests to same person.
Where a will purports to make two bequests to the 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 have effect in determining the construction to be put upon the will:—
(a) If the same specific thing is bequeathed twice to the same legatee in the same will or in the will and again in the codicil, he is entitled to receive that specific thing only.
(b) 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.
(c) 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.
(d) 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 clauses (a) to (d) of this section, the word “will” does not include a codicil.
Illustrations
(i) A, having ten shares, and no more, in the Imperial Bank of India, made his Will, which contains near its commencement the words “I bequeath my ten shares in the Imperial Bank of India to B”. After other bequests, the Will concludes with the words "and I bequeath my ten shares in the Imperial Bank of India to B". B is entitled simply to receive A’s ten shares in the Imperial Bank of India.
(ii) A, having one diamond ring, which was given to him by B, bequeaths to C the diamond ring which was given 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 to him by B, C can claim nothing except the diamond ring which was given to A by B.
(iii) A, 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.
(iv) A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will bequeaths to B the sum of 6,000 rupees. B is entitled to receive 11,000 rupees.
(v) A, 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.
(vi) A, 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.
(vii) A, by his will, bequeaths “500 rupees to B because she was my nurse”, and is another part of the will bequeaths 500 rupees to B “because she went to England with my children”. B is entitled to receive 1,000 rupees.
(viii) A, by his will, bequeaths to B the sum of 5,000 rupees and also, in another part of the will, an annuity of 400rupees. B is entitled to both legacies.
(ix) A, 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 rupees.
Section 102. Constitution of residuary legatee.
A residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property.
Illustrations
(i) 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, etc., to give to B, now at school, towards equipping him to any profession he may hereafter be appointed to.” B is constituted residuary legatee.
(ii) A 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.
(iii) A bequeaths all his property to B, except certain stock and funds, which he bequeaths to C. B is the residuary legatee.
Section 103. Property to which residuary legatee entitled.
Under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effect.
Illustration
A by his will bequeaths certain legacies, of which one is void under section 118, 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 zamindari, which belongs to him at the time of his death. B is entitled to the two legacies and the zamindari as part of the residue.
Section 104. Time of vesting legacy in general terms.
1f a legacy is given in general terms, without specifying the time when it is to be paid, 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.
Section 105. In what case legacy lapses.
(1) If the legatee 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 appears by the Will that the testator intended that it should go to some other person.
(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.
Illustrations
(i) The testator bequeaths to B “500 rupees which B owes me”. B dies before the testator; the legacy lapses.
(ii) 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.
(iii) 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.
(iv) A sum of money is bequeathed to A for life, and after his death to B. A dies in the lifetime of the testator; B survives the testator. The bequest to B takes effect.
(v) 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 ii does not take effect.
(vi) The testator and the legatee perished in the same ship-wreck. There is no evidence to show which died first. The legacy lapses.
Section 106. Legacy does not lapse if one of two joint legatees die before testator.
If a legacy is given to two persons jointly, and one of them dies before the testator, the other legatee takes the whole.
Illustration
The legacy is simply to A and B. A dies before the testator. B takes the legacy.
Section 107. Effect of words showing testator’s intention to give distinct shares.
If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of 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 Will only take so much as they would have had if A had survived the testator.
Section 108. When lapsed share goes as undisposed of.
Where a share which lapses is a part of the general residue bequeathed by the Will, that share shall go as undisposed of.
Illustration
The testator bequeaths me 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 of.
Section 109. When bequest to testator’s child or lineal descendant does not lapse on his death in testator’s lifetime.
Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will.
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 A, 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.
Section 110. Bequest to A for benefit of B does not lapse by A’s death.
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.
Section 111. Survivorship in case of bequest to described class.
Where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator’s death.
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 bequest or otherwise, the property shall at that time go to such of them as are then alive, and to the representatives of any of them who have died since the death of the testator.
Illustrations
(i) A bequeaths 1,000 rupees to “the children of B” without saying when it is to be distributed among them. B had died previous to the date of the will, leaving three children, C, D and E. E died after the date of the will, but before the death of A. C and D survive A. The legacy will belong to C and D, to the exclusion of the representatives of E.
(ii) A lease for years of a house, was bequeathed to A for his life, and after his decease to the children of B. At the death of the testator, B had two children living, C and D, and he never had any other child. Afterwards, during the lifetime of A, C died, leaving E, his executor. D has survived A, D and E are jointly entitled to so much of the leasehold term as remains unexpired.
(iii) A sum of money was bequeathed to A for her life, and after her decease to the children of 13. At the death of the testator, B had two children living, C and D, and, after that event, two children, E and F, were born to B. C and E died in the lifetime of A, C having made a will, E having made no will. A has died, leaving D and F surviving her. The legacy is to be divided into four equal parts, one of which is to be paid to the executor of C, one to D, one to the administrator of E and oneto F.
(iv) A bequeaths one-third of his lands to B for his life, and after his decease to the sisters of B. At the death of the testator, B had two sisters living, C and D, and after that event another sister E was born. C died during the life of B, D and E have survived B. One-third of A’s land belong to D, E and the representatives of C, in, equal shares.
(v) A bequeaths 1,000 rupees to B for life and after his death equally among the children of C. Up to the death of B, C had not had any child. The bequest after the death of B is void.
(vi) A bequeaths 1,000 rupees to “all the children born or to be born” of B to be divided among them at the death of C. At the death of the testator, B has two children living, D and E. After the death of the testator, but in the lifetime of C, two other children, F and G, are born to B. After the death of C, another child is horn to B. The legacy belongs to D, E, F and G, to the exclusion of the after-born child of B.
(vii) A bequeaths a fund to the children of B, to be divided among them when the eldest shall attain majority. At the testator's death, B had one child living, named C. He afterwards had two other children, named D and E. E died, but C and D were living when C attained majority. The fund belongs to C, D and the representatives of E, to the exclusion of any child who may be born to B after C’s attaining majority.