Report No. 110
V. Conditions Subsequent
21.14. Section 136-Conditions in the nature of performance of acts by legatee.-
The conditions super-added on a bequest may be in the form of the performance of an act by the legatee. In such a case, if no time is specified for the performance of the Act, and the legatee takes any step which renders impossible or indefinitely postpones the performance of the required act, the legacy shall go as if the legatee had died without performing such an act, according to section 136. The first illustration to the section deals with a case where performance of the condition is rendered impossible.
The second illustration illustrates the case where performance of the condition, though not rendered impossible, is indefinitely postponed. The illustration says that if a bequest is made to A, with a proviso that it shall cease to have effect if the legatee does not marry B's daughter, and the legatee A marries a stranger, then the bequest ceases to have effect. This illustration raises the interesting question whether such conditions should take notice of the fact that the legatee has his whole life to perform the condition. As the section stands, this is not permissible.
21.15. English law as to indefinite postponement.-
English cases on the subject take a different view, so that if the testator has not prescribed a particular period, then the period during which the condition can be performed, is the entire life time of the donee.
Under English law, the definite postponement of the fulfillment of a condition does not work as a forfeiture of the estate. Thus, in a case similar to that in illustration (ii) to section 136, it was held1-2 that inspite of the girl marrying into another family, the performance of the condition was not rendered impossible, since she might survive her first husband, and she would not be divested as the performance of the condition was still possible during her whole life.
1. (a) Randal v. Payne, 1 Bro CC 55.
(b) Lester v. Garland, 15 Ves 248.
2. Halsbury's, 3rd Edn., Vol. 39, p. 930.
21.16. Recommendation to revise section 136.-
We are of the view that the present English position1 on the subject is more just and is in consonance with the general approach of the law which favours the vesting of estates and discourages divesting. We therefore recommend that illustration (ii) to section 136 should be revised in view of what we have stated above, and the portion in the main section referring to indefinite postponement be also deleted.
Revised section 136 may read as under:-
"136. Where a bequest is made with a condition super-added that, unless the legatee shall perform a certain act, the subject-matter of the bequest shall go to another, or the bequest shall cease to have effect, but no time is specified for the performance of the act; if the legatee takes any step which renders impossible the performance of the act required, and legacy shall go as if the legatee had died without performing such act.
(i) A bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go ever to B. A takes Holy Orders, and thereby renders it impossible that he should fulfil the condition. B is entitled to receive the legacy.2
(ii) A bequest is made to A, with a proviso that it shall cease to have any effect if he does not marry B's daughter. A marries a stranger. Though A may thereby indefinitely postpone the fulfilment of the condition, he does not render impossible its fulfilment. The bequest does not cease to have effect."
1. Para. 2115, supra.
2. Illustration (i) as proposed reproduces the existing illustration. It may be that the present doctrine does not go so far.
21.17. Section 137.-
This takes us to section 137, which provides that where the performance of a condition is to be done within a specified time under the will, the act must be performed within the specified time, the only exception being in the case of fraud.
20.18. Requirement as to fraud.-
In relation to fraud, it is to be noticed that in principle the fraud should be of the person who would be benefited by non-performance of the condition. In this connection, if may be noticed that in the Transfer of Property Act,1 the corresponding provision contains the words "of a person who would be directly benefited by non-fulfilment of the condition". These words ought to appear in section 137 of the Succession Act also2, to improve it in point of precision.
1. Section 34, Transfer of Property Act, 1882.
2. See para. 20.20, infra.
21.19. English law as to fraud and other cases.-
The proviso relating to fraud seems to have been suggested by an opinion expressed in an early English ease1, to the effect that if, in that case, there had been fraud on the part of the trustees, or, possibly, such laches on their part as the Court would consider to have been the sole cause of the donee of the right of pre-emption not having complied strictly with the condition enforced by the will, then the donee is entitled to relief.
1. Brooke v. Gerrod, 3 K&J 608.
21.19A. Forfeiture against time limits in England.-
Incidentally, it appears that in England, in some cases where a legatee is required to perform a certain act within a certain time, courts have jurisdiction to grant relief against forfeiture and the legatee is allowed a reasonable time within which to perform the condition.1-3 There was no gift over in those cases, so that the interests of any alternative legatee were not involved4.
1. Pain v. Hyde, 4 Beav 468.
2. Simpson v. Vickers, 14 Ves 341.
3. See, for example, Re-Packard v. Waters, (1920) 1 Chancery 596: (1918-1919) All ER 365.
4. See further Halsbury's, 3rd Edn., Vol. 39, pp. 930-31, paras. 1406-1407.
21.20. Recommendation to amend section 137.-
In view of what we have stated above,1 we recommend that section 137 should be amended by adding, after the word "fraud", the words "of a person to who would be directly benefited by non fulfilment of the condition."
1. Para. 21.18, supra.