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Report No. 110

24.2. Section 142-Specific legacy.-

Section 142 defines a 'specific legacy' thus-

"Where a testator bequeaths to any person a specified part of his property, which is distinguished from all other parts of his property, the legacy is said to be specific". It may be mentioned that in this definition that words "specified part" are crucial. In a specific legacy, the identity of the thing bequeathed must be indicated in some specific way".1

As Dixon, C.J. put it2:-

"What marks a bequest as specific is that its subject-matter is designated as something that it does, at the time of the will, or shall at the time of the death of the testator, form an identifiable part of his property and is so to speak, distinguished by the intention of the testator as ascertained from his will to separate it in his disposition from the rest of his property for the purpose of bequeathing it as the distinct subject of a testamentary disposition."

In contrast to a specific bequest, a general legacy amounts to a direction to the executors either to procure the property designated or to pay the legatee the value of the property.

A demonstrative legacy stands midway between the two. It is one denoted by words of the will which indicate that a gift is to be made primarily out of a particular fund or from the proceeds of the sale of particular property, but the gift is not to fail if the fund goes out of existence or proves inadequate.3

So much by way of general observations. So far as section 142 is concerned, it does not seem to have presented serious difficulties and does not, therefore, need change.

1. Stephen Commentaries on the Laws of England, (1950), Vol. 1, p. 505.

2. McBride v. Hudson, (1961) 107 Commonwealth Law Reports 604, p. 617, High Court of Australia.

3. Paget v. Huish, (1863) 71 English Reports 291 (294).

The Indian Succession Act, 1925 Back

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