Indian Succession Act,1925
Act No : 39
Section :
Bequest to person not in existence at testator's death subject toprior bequest.
113. Bequest to person not in existence at testator's deathsubject to prior bequest.-Where a bequest is made to a person not inexistence at the time of the testator's death, subject to a priorbequest contained in the will, the later bequest shall be void, unlessit comprises the whole of the remaining interest of the testator inthe thing bequeathed.91 Illustrations (i) Property is bequeathed to A for his life, and after his deathto his eldest son for life, and after the death of the latter to hiseldest son. At the time of the testator's death, A has no son. Herethe bequest to A's eldest son is a bequest to a person not inexistence at the testator's death. It is not bequest of the wholeinterest that remains to the testator. The bequest to A's eldest sonfor his life is void. (ii) A fund is bequeathed to A for his life, and after his deathto his daughters. A survives the testator. A has daughters some ofwhom were not in existence at the testator's death. The bequest to A'sdaughters comprises the whole interest that remains to the testator inthe thing bequeathed. The bequest to A's daughters is valid. (iii) A fund is bequeathed to A for his life, and after his deathto his daughters, with a direction that, if any of them marries underthe age of eighteen, her portion shall be settled so that it maybelong to herself for life and may be divisible among her childrenafter her death. A has no daughters living at the time of thetestator's death, but has daughters born afterwards who survive him.Here the direction for a settlement has the effect in the case of eachdaughter who marries under eighteen of substituting for the absolutebequest to her a bequest to her merely for her life; that is to say, abequest to a person not in existence at the time of the testator'sdeath of something which is less than the whole interest that remainsto the testator in the thing bequeathed. The direction to settle thefund is void. (iv) A bequeaths a sum of money to B for life, and directs thatupon the death of B the fund shall be settled upon his daughters, sothat the portion of each daughter may belong to herself for life, andmay be divided among her children after her death. B has no daughterliving at the time of the testator's death. In this case the onlybequest to the daughters of B is contained in the direction to settlethe fund, and this direction amounts to a bequest to persons not yetborn, of a life-interest in the fund, that is to say, of somethingwhich is less than the whole interest that remains to the testator inthe thing bequeathed. The direction to settle the fund upon thedaughters of B is void.
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