Report No. 110

45.5. Section 351-Second Exception-origin.-

The second exception to section 351 requires some comments. According to the practice of the Chancery Division in England,1 a minor who is entitled under the will of his parent, etc. to a legacy contingently on his attaining his majority is entitled, during minority, to maintenance out of the income of the legacy. This is the basis of the second exception to section 351.

45.6. Unlike the third exception to section 351, the second exception to section 351 is not confined to minors. In this respect, the English Law is different, the corresponding exception being confined to minors2 It is also to be noted that the second exception to section 351, unlike section 352, does not exclude cases where:-

"a specific sum is given by the will for maintenance or the will contains a direction to the contrary."

Some of the commentators have stated that the second exception is taken from an English case,3 but that case was one of a minor.

1. Halsbury's, 4th Edn., Vol. 17, p. 641, para. 1253.

2. Stent v. Robinson, 12 Ves 461.

3. Wilson v. Madison, (1843) 2 Y&C Chancery cases 372.