Report No. 70

28.41. Intention.-

The rule laid down in this section will not apply if the testator has expressed a contrary intention.1 Section 130, Succession Act, indicates an exception to this rule. In the Transfer of Property Act, the rule and the exception are both embodied in one section.

1. Jones v. Westcombe, 1711 Prec Ch 316.

28.42. Section 27.- Roper on Legacies1 contains the following statement:

"It is a general rule of the common law, applicable to real estates, that where an interest is so devised as only to arise upon a preceding condition, it cannot vest until that condition be performed, or the event happen, upon which it is given. This rule has been acknowledged and acted upon ever since the time of LORD COKE.

The principle is, that there is no devise until the happening of the event, of performance of the terms upon which the disposition is made; a principle which applies to every case, so that although the condition require the performance of an impossible act, as for, the devises to go to Paris in half an hour, or it require the devises to do an illegal act, as to kill B, or to burn his house (conditions male in se); or
whether it require a woman to separate from her husband (a condition against the policy of law); or whether the devise be made on condition that the legatee have criminal connection with a particular person (a condition contra bonos mores); the before stated principle authorises the conclusion, that, as all such conditions are void, the dispositions to arise only upon their performance are also void. But the rule of the civil law is different....".

1. Roper, 4th Edn., (1847), Vol. 1, p. 754.

28.43. Principle.-

Where the intention of the parties can be clearly ascertained, effect is given to it, but otherwise, to prevent lapse, it is sufficient if their intention is substantially carried out. If the transferor provides against failure, the ulterior disposition will take effect in case of failure, although it may not have occurred in the manner contemplated by the parties. But where [as in illustration (b)] the intention is that the ulterior disposition will take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition does not take effect unless the prior disposition fails in that manner. In such a case the failure of the prior interest in a particular manner is a condition precedent to the transfer, and must be fulfilled.

28.44. Prior bequest.-

The words "if the prior bequest shall fail" are important, for they indicate that if the prior bequest is void ab initio under section 113 or 114, the subsequent bequest will also fail under section 116. In other cases where the prior bequest is valid but fails, the ultimate bequest is accelerated, e.g., in the English case of Jull v. Jacobs, (1976) 3 Ch D 703, there was a bequest to A for life and then to his children. The bequest to A failed, as he had attested the will. It was held that the bequest to the children took effect.

28.45. Recommendation.-

Incidentally, it may be noted that section 130, Indian Succession Act, 1925 is more precise, inasmuch as it repeats the word "particular" at the end also. The section, omitting the illustration, provides as follows:

"130. Where the will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect unless the prior bequest fails in that particular manner."

It may be desirable to add the word "particular" towards the end of section 27. This, of course, is a very minor change, which we recommend.