Report No. 110

23.2. Rationale.-

The rationale of this section is that when bequests are given to individuals in the character of executors and not as marks of personal regard only, the implied condition is that the persons named must clothe themselves with the character in respect of which the benefits were intended.1-2 Whether the legacy is expressed in lieu of 'care and pains' or not, the donee must, in order to entitle himself to the legacy "clothe himself with the character of executor".3

1. Brydges v. Watton, Vol. 171 Ves&B 135.

2. Halsbury's, 4th Edn., p. 65, para. 1246.

3. Harrison v. Rowley, (1798) 4 Ves 212 (Lord Alvanley, M.R.).

23.2A. Contrary intention in English law.-

This is a principle of English law which has been followed in section 141. There is, however, one important point in respect of which this section differs from the English law, and the difference does not appear to be justified. In England, it is permissible1 to prove a contrary intention; circumstances which indicate fruit the legacy was intended for the executor personally, and not annexed to the office of the executor, can always be shown.2 For example, a difference either in the nature or in the amount of legacies given to persons named as executors is itself sufficient to show that the sift is not attached to the office.3-4

Again, in English law, the presumption does not arise where the gift is of the residue or of a part of the residue.5

1. Halsbury's, 4th Edn., Vol. 17, p. 638, para. 1246.

2. Slaney v. Watney, LR (1886) 2 Enquiry 418.

3. Appleton (in re:), (1885) 29 Ch Div 983.

4. Halsbury's, 4th Edn., Vol. 17, p. 638, para. 1246.

5. Griffith v. Pruen, 11 Simon 202.