FAMILY LAW- II

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM,

A.P., INDIA

PROJECT TITLE:

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1925

CRITICAL APPRAISAL

SUBJECT:

FAMILY LAW

NAME OF THE FACULTY:

Dr. P. VARALAKSHMI

NAME OF THE CANDIDATE:

AISHWARYA.V.V.BUDDHARAJU

ROLL NUMBER:

2018LLB003

PROGRAM:

B.A., aLL.B. aHons.

DATE aOF aSUBMISSION:

12th aDECEMBER, a2020.

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 1

 FAMILY LAW- II

ACKNOWLEDGMENT:

I am highly indebted to my Hon’ble Family Law Professor, Dr. P. Varalakshmi, for giving
me a wonderful opportunity to work on the topic: “Ademption of Legacies under the Indian
Succession Act, 1925 Critical Appraisal”, and it is because of her excellent knowledge,
experience and guidance, this project is made with great interest and effort. I would also like
to thank my seniors who have guided my novice knowledge of doing research on such
significant topic. I would also take this as an opportunity to thank my parents for their
support at all times. I express my sincere gratitude to each and every person who have guided
and suggested me while conducting my research work.

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TABLE OF CONTENTS:

1. SYNOPSIS…………………………………………………………………4
2. INTRODUCTION………………………………………………………….6
3. WHAT IS AN ADEMPTION?.....................................................................6
4. WHAT IS A ALEGACY?............................................................................8
5. SECTION 152……………………………………………………………..9
6. SECTION 153…………………………………………………………….10
7. SECTION 154…………………………………………………………….11
8. SECTION 155…………………………………………………………….11
9. SECTION 156……………………………………………………………11
10. SECTION 157…………………………………………………………….12
11. SECTION 158……………………………………………………………12
12. SECTION 159……………………………………………………………13
13. SECTION 160……………………………………………………………13
14. SECTION 161……………………………………………………………14
15. SECTION 162……………………………………………………………14
16. SECTION 163…………………………………………………………….15
17. SECTION 164……………………………………………………………15
18. SECTION 165……………………………………………………………16
19. SECTION 166……………………………………………………………16
20. INTERNATIONAL PERSPECTIVE…………………………………….16
21. BIBLIOGRAPHY…………………………………………………………21

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 FAMILY LAW- II

SYNOPSIS

INTRODUCTION:

Ademption is the non-existence of an asset at the testator’s death as distinct from insufficient
a a a a a a a a a a a a a a

a assets to meet the stated legacies (abatement). Where the testator leaves a legacy in the will
a a a a a a a a a a a a a a a

a but the subject-matter is found to be non-existent at the testator’s death, whether or not the
a a a a a a a a a a a a a a a

a beneficiary receives any benefit from the estate at all will depend on the type of legacy.
a a a a a a a a a a a a a a a

a Where a specific legacy is named the non-existence of the subject-matter will mean that the
a a a a a a a a a a a a a a

a beneficiary receives nothing, for example where the item cannot be found or has been
a a a a a a a a a a a a a

a replaced by another item. This raises issues of definition for the will writer – consider the
a a a a a a a a a a a a a a a

a difference between “I give my car RG64 XYZ to A” and “I give the car that I own at my
a a a a a a a a a a a a a a a a a a a

a death to A”.
a a

This rule applies even if the specific gift has been sold and the sale proceeds can be traced, or if the
a a a a a a a a a a a a a a a a a a a a

a subject-matter has been destroyed and the proceeds of an insurance policy have been obtained.1
a a a a a a a a a a a a a

a However in the case of Re Flemings’s Will Trust 2the testator gave a legacy in his will of “my
a a a a a a a a a a a a a a a a a a

a leasehold house 54 Narcissus Road” and later acquired the freehold the court held that the gift
a a a a a a a a a a a a a a a

a passed the testator’s entire interest including the freehold.

a a a a a a a

RESEARCH METHODOLOGY:

The researcher is adopting a doctrinal study for this research paper. The researcher is
adopting an analytical and descriptive study to get together all the provisions and the cases
backing them under the same roof. The cases are cited where need be for clarity of the
concept.

SCOPE OF THE STUDY:

The researcher is limiting the scope of the study to the geographical territory of India taking
into consideration the cases from various High Courts and the Supreme Court of India. This
project also involves the international perspective to ademption of legacies and a few case
laws were cited to enunciate the same.

RESEARCH QUESTIONS?

1 (see Durrant v Friend (1852) 5 De G.)

a a a a a a a a

2 [1974] 3 All ER 323.

a a a a a

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 4

 FAMILY LAW- II

1. Whether the concept of ademption of legacies same under the Indian law i.e; the
Indian Succession Act, 1925 and the laws abroad?
2. Whether ademption of legacies also apply to stocks?

HYPOTHESIS:

1. Ademption is the non-existence of an asset at the testator’s death as distinct from

insufficient assets to meet the stated legacies (abatement).
2. Where the testator leaves a legacy in the will but the subject-matter is found to be non-
existent at the testator’s death, whether or not the beneficiary receives any benefit from the
estate at all will depend on the type of legacy.
3. Where a specific legacy is named the non-existence of the subject-matter will mean that the
beneficiary receives nothing, for example where the item cannot be found or has been
replaced by another item.
4. This raises issues of definition for the will writer – consider the difference between “I give
my car RG64 XYZ to A” and “I give the car that I own at my death to A”.

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 FAMILY LAW- II

INTRODUCTION:

Ademption is taking away of a legacy which was before bequeathed. Strictly speaking,
ademption is applicable only to specific legacies. The word ademption is considered as
synonymous with the word “extinction.” It should be observed here that if the stock or money
so bequeathed be sold or disposed of, there is complete extinction of the subject and nothing
remains to which the word of the Will can apply; because it proceeds from such sale or
disposition but if some other properties were to be substituted and permitted to pass, the
effect would be to convert a specific legacy into a General legacy.

After making a will, the Testator may transfer other properties to the legacy and may either
by express words or by application of law, substitute the second gift for the one contained in
his will, the legacy is thereby adeemed or taken away from the will. The ademption is
occasioned by the act of the testator alone. The ademption may result in the partial or total
loss of legacy. If, however, the ademption affects no other provision of the will, the
testamentary document still remains in full force and effect as to its other provisions. If the
ademption is total, the entire legacy is eliminated. This is applicable to the will of Hindus,
Buddhists, Sikhs and Jains.

WHAT IS AN ADEMPTION:

Ademption is the non-existence of an asset at the testator’s death as distinct from insufficient
a a a a a a a a a a a a a a

a assets to meet the stated legacies (abatement). Where the testator leaves a legacy in the will
a a a a a a a a a a a a a a a

a but the subject-matter is found to be non-existent at the testator’s death, whether or not the
a a a a a a a a a a a a a a a

a beneficiary receives any benefit from the estate at all will depend on the type of legacy.
a a a a a a a a a a a a a a a

a Where a specific legacy is named the non-existence of the subject-matter will mean that the
a a a a a a a a a a a a a a

a beneficiary receives nothing, for example where the item cannot be found or has been
a a a a a a a a a a a a a

a replaced by another item. This raises issues of definition for the will writer – consider the
a a a a a a a a a a a a a a a

a difference between “I give my car RG64 XYZ to A” and “I give the car that I own at my
a a a a a a a a a a a a a a a a a a a

a death to A”. a a

This rule applies even if the specific gift has been sold and the sale proceeds can be traced, or
a a a a a a a a a a a a a a a a a a

a if the subject-matter has been destroyed and the proceeds of an insurance policy have been
a a a a a a a a a a a a a a

a obtained.3 However in the case of Re Flemings’s Will Trust 4the testator gave a legacy in his
a a a a a a a a a a a a a a a a

3
a (see Durrant v Friend (1852) 5 De G.)
a a a a a a a

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 6

 FAMILY LAW- II

a will of “my leasehold house 54 Narcissus Road” and later acquired the freehold the court held
a a a a a a a a a a a a a a a

a that the gift passed the testator’s entire interest including the freehold.
a a a a a a a a a a

Stocks and shares can cause problems as they are prone to change their description and nature
a a a a a a a a a a a a a a a

a over time. Companies are sold, bought, and reorganised. The result is that it can be difficult
a a a a a a a a a a a a a a a

a for administrators to decide whether a gift of shares (as defined by the will) adeems. In Re:
a a a a a a a a a a a a a a a a

a Slater5 the court held the appropriate test that should be applied to decide in the case of stocks
a a a a a a a a a a a a a a a a a

a and shares is “is the change (to the shares) merely in name or form, but substantially the same
a a a a a a a a a a a a a a a a a

a thing”. The current test to stop a gift of stocks and shares adeeming may be as follows:
a a a a a a a a a a a a a a a a

a • Is the change merely a name change?

a a a a a a a

a • Is there “unity of security”, has the underpinning capital structure of the company remained
a a a a a a a a a a a a a a

a unchanged or is there a fundamental change to the company structure and the nature of the
a a a a a a a a a a a a a a a

a shares?

a • Is the quantity involved the same of similar?

a a a a a a a a

If a specific gift adeems the beneficiary is not entitled to compensation. If the deceased had
a a a a a a a a a a a a a a a

a entered a binding contract for sale, which had not been completed before the death the
a a a a a a a a a a a a a a

a beneficiary is not entitled to the proceeds of the sale: known as the rule in Lawes v Bennet.6 If
a a a a a a a a a a a a a a a a a a

a the gift is a demonstrative gift, for example “£100 payable out of my …………… building
a a a a a a a a a a a a a a

a society account”, the gift is payable from other parts of the estate – beginning with the
a a a a a a a a a a a a a a a

a residue. Where there is only sufficient funds available to pay part of the gift the balance is
a a a a a a a a a a a a a a a a

a payable from the residue.7 a a a a

If the gift is a general pecuniary gift, for example “I give £100 to A”, the amount must be paid
a a a a a a a a a a a a a a a a a a a

a as long as the estate is not insolvent. The payment is made either according to the testator’s
a a a a a a a a a a a a a a a a

a express wishes or under the statutory legacy payment order. The amount reduces rateably
a a a a a a a a a a a a

a (pro-rata) with other general pecuniary legacies if there are insufficient assets available to pay
a a a a a a a a a a a a a

a the legacies in full.

a a a

4
[1974] 3 All ER 323.
a a a a a

5
[1907] 1 Ch 665.
a a a a

6
(1785) 29 ER 1111.
a a a a

7
Ashburner v MacGuire (1786) 2 All ER 837.
a a a a a a a a

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WHAT IS A LEGACY?

There are three basic types of legacy i) general, ii) specific and iii) demonstrative. The
category that correctly describes a particular gift and into which the legacy falls for legal
purposes is a matter of construction.

GENERAL LEGACIES:

A general legacy does not specify a particular item or does not specify one item out of a
a a a a a a a a a a a a a a a a a

a particular class. A general legacy is provided out of the testator’s general estate. A general
a a a a a a a a a a a a a a

a legacy is not made specific merely because the estate contains the property described by the
a a a a a a a a a a a a a a

a legacy in the estate. The executors can decide whether or not to use that property to satisfy the
a a a a a a a a a a a a a a a a a

a legacy or alternatively to use estate residuary funds and purchase other property of the same
a a a a a a a a a a a a a a

a form. The legacy is general unless the property is referred to specifically as belonging to the
a a a a a a a a a a a a a a a

a testator or otherwise described (and therefore distinguished) so as to exclude its replacement

a a a a a a a a a a a a

a by other property from the estate. A pecuniary legacy is by nature a general legacy, but can
a a a a a a a a a a a a a a a a

a fall under any of the 3 types. The gift of £100 is a general legacy. The legacy, subject to
a a a a a a a a a a a a a a a a a a

a contrary intention, carries the interest from the time that it is payable. That time depends on
a a a a a a a a a a a a a a a

a the express provisions of the will or of any relevant rules of law. Gifts that are to be paid
a a a a a a a a a a a a a a a a a a

a immediately after the death, that is at the end of the “executor’s year” unless the will provides
a a a a a a a a a a a a a a a a

a otherwise attract interest immediately.

a a a

SPECIFIC LEGACIES:

A specific legacy identifies the subject-matter of a gift existing at the date of the will. For
example “I give my grandfather clock to A”. Any words of possession or reference indicates
that the testator intended to give that particular property and not some property of the same
kind, purchased by the executors. Thus aif athe asubject-matter aof athe agift adoes anot
aexist atime aof athe adeath, asubject ato athere abeing aa acontrary aintention ain athe awill,
athe agift ais aadeemed aand afails. aIf ahowever athe asubject-matter aonly achanges ain aits
aperceived aform, afor aexample aa agift aof ashares ain aa acompany athat ahas abeen
asubject ato areorganisation, athen athe alegacy awill ausually abe aunaffected. aA agift aof
a“my ashares” ais aspecific abeing apossessive ain aconstruction, aas ais a“such ashares aas
aI aown ain aABC aLtd aat athe adate aof amy adeath” a– aassumes athat athe atestator adies

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 FAMILY LAW- II

aowning ashares. aBut aif athere awere ano ashares ain athe aestate athen athe agift awould
alapse.

In the case of the alternative legacy expressed as “I give X (being a number) of shares in
ABC plc then the executor would be required to purchase the specified number of share in
ABC plc if the testator did not own those shares at the date of his death.

DEMONSTRATIVE LEGACIES:

A demonstrative legacy describes the fund or the assets out of which the legacy is to be paid.
Therefore sharing some of the attributes of a general legacy in that the payment is to be from a
specified source, and that the payment represents but a (general) part of that source. Demonstrative
legacies have the advantage that they do not adeem when the source itself is insufficient at the date
of the testator’s death to satisfy the legacy in full. If the fund or property specified is insufficient to
meet the legacy in full then the remainder is payable out of the testator’s general estate, having the
same priority as other general legacies. There are 4 exceptional rules where interest on a legacy is
carried from the date of death, they are:

i) Where the legacy is in satisfaction of a debt; and

a a a a a a a a a a a

ii) A vested legacy, which is charged on realty; and

a a a a a a a a a a

iii) A legacy to a testator’s own minor child; and

a a a a a a a a a a

iv) A legacy to any minor for the purpose of maintenance.

a a a a a a a a a a a

These rules are again subject to contrary intention expressed by the will. You should note that in all
a a a a a a a a a a a a a a a a a

a but the case of above there are circumstances where the rule as expressed above does not apply.
a a a a a a a a a a a a a a a a

a In the case of drafting gifts for the benefit of minors it is always better to provide express rules
a a a a a a a a a a a a a a a a a a

a within the will for the executors to follow exactly, rather than having to rely upon the somewhat
a a a a a a a a a a a a a a a a

a cumbersome, unwieldy provisions governing the payment of interest on legacies as contained in

a a a a a a a a a a a a

a general law. a

SECTION 152 IN THE INDIAN SUCCESSION ACT, 1925

152. Ademption explained.—If any thing which has been specifically bequeathed does not
belong to the testator at the time of his death, or has been converted into property of a
different kind, the legacy is adeemed; that is, it cannot take effect, by reason of the subject-
matter having been withdrawn from the operation of the Will.
Illustrations.

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 9

 FAMILY LAW- II

1. A bequeaths to B "the diamond ring presented to me by C": "my gold chain": "a
a a a a a a a a a a a a a a a

a certain bale of wool": "a certain piece of cloth": "all my household goods which shall
a a a a a a a a a a a a a a

a be in or about my dwelling-house in M. Street in Calcutta, at the time of my death".

a a a a a a a a a a a a a a a a

A in his life-time, sells or gives away the ring: converts the chain into a cup; converts
a a a a a a a a a a a a a a a a

a the wool into cloth: makes the cloth into a garment: takes another house into which he
a a a a a a a a a a a a a a a

a removes all his goods. Each of these legacies is adeemed.

a a a a a a a a a

2. A bequeaths to B "the sum of 1,000 rupees, in a certain chest": "all my horses in my

a a a a a a a a a a a a a a a a a

a stable". At the death of A, no money is found in the chest, and no horses in the stable.
a a a a a a a a a a a a a a a a a a

a The legacies are adeemed.

a a a

3. A bequeaths to B certain bales of goods. A takes the goods with him on a voyage. The
a a a a a a a a a a a a a a a a a

a ship and goods are lost at sea, and A is drowned. The legacy is adeemed.8
a a a a a a a a a a a a a a

If any thing which has been specifically bequeathed does not belong to the testator at the time
of his death, or has been converted into property of a different kind, the legacy is adeemed;
that is, it cannot take effect, by reason of the subject-matter having been withdrawn from the
operation of the will.

Illustrations:

1. A bequeaths to B "the diamond ring presented to me by C": "my gold chain": "a
certain bale of wool": "a certain piece of cloth": "all my household goods which shall
be in or about my dwelling-house in M. Street in Calcutta, at the time of my death".
A in his life-time, sells or gives away the ring: converts the chain into a cup; converts
the wool into cloth: makes the cloth into a garment: takes another house into which he
removes all his goods. Each of these legacies is adeemed.
2. A bequeaths to B "the sum of 1,000 rupees, in a certain chest": "all my horses in my
stable". At the death of A, no money is found in the chest, and no horses in the stable.
The legacies are adeemed.
3. A bequeaths to B certain bales of goods. A takes the goods with him on a voyage. The
ship and goods are lost at sea, and A is drowned. The legacy is adeemed.

SECTION 153 - NON-ADEMPTION OF DEMONSTRATIVE LEGACY

A demonstrative legacy is not adeemed by reason that the property on which it is charged by

8
https://indiankanoon.org/doc/1770269/, last accessed 29th Nov, 2020.

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 10

 FAMILY LAW- II

the will does not exist at the time of the death of the testator, or has been converted into
property of a different kind, but it shall in such case be paid out of the general assets of the
testator.

SECTION 154 - ADEMPTION OF SPECIFIC BEQUEST OF RIGHT TO RECEIVE

SOMETHING FROM THIRD PARTY

Where the thing specifically bequeathed is the right to receive something of value from a
a a a a a a a a a a a a a a

a third party, and the testator himself receives it, the bequest is adeemed.
a a a a a a a a a a a

Illustrations:

(i) A bequeaths to B "the debt which C owes me": "2,000 rupees which I have in the hands of
a a a a a a a a a a a a a a a a a a a

a D": "the money due to me on the bond of E": "my mortgage on the Rampur factory".
a a a a a a a a a a a a a a a a

All these debts are extinguished in A's lifetime, some with and some without his consent. All
a a a a a a a a a a a a a a a

a the legacies are adeemed.

a a a

(ii) A bequeaths to B his interest in certain policies of life assurance. A in his lifetime receives
a a a a a a a a a a a a a a a a a

a the amount of the policies. The legacy is adeemed.

a a a a a a a a

SECTION 155 - ADEMPTION PRO TANTO BY TESTATOR'S RECEIPT OF PART

a a a a a a a a a a

a OF ENTIRE THING SPECIFICALLY BEQUEATHED

a a a a

The receipt by the testator of a part of an entire thing specifically bequeathed shall operate as
a a a a a a a a a a a a a a a a

a an ademption of the legacy to the extent of the sum so received,

a a a a a a a a a a a a

Illustration:

A bequeaths to B "the debt due to me by C'. The debt amounts to 10,000 rupees. C pays to A
a a a a a a a a a a a a a a a a a a a a

a 5,000 rupees the one-half of the debt. The legacy is revoked by ademption, so far as regards
a a a a a a a a a a a a a a a a

a the 5,000 rupees received by A.

a a a a a

SECTION 156 - ADEMPTION PRO TANTO BY TESTATOR'S RECEIPT OF

a a a a a a a a a

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 FAMILY LAW- II

a PORTION OF ENTIRE FUND OF WHICH PORTION HAS BEEN SPECIFICALLY a a a a a a a a a

a BEQUEATHED

If a portion of an entire fund or stock is specifically bequeathed, the receipt by the testator of a
a a a a a a a a a a a a a a a a a a

a portion of the fund or stock shall operate as an ademption only to the extent of the amount so
a a a a a a a a a a a a a a a a a a

a received; and the residue of the fund or stock shall be applicable to the discharge of the
a a a a a a a a a a a a a a a a

a specific legacy. a

Illustration:

A bequeaths to B one-half of the sum of 10,000 rupees due to him from W. A in his lifetime
a a a a a a a a a a a a a a a a a a a

a receives 6,000 rupees, part of the 10,000 rupees. The 4,000 rupees which are due from W to A
a a a a a a a a a a a a a a a a a

a at the time of his death belong to B under the specific bequest.

a a a a a a a a a a a a

SECTION 157 - ORDER OF PAYMENT WHERE PORTION OF FUND a a a a a a a a a

a SPECIFICALLY BEQUEATHED TO ONE LEGATEE, AND LEGACY CHARGED a a a a a a a

a ON SAME FUND TO ANOTHER, AND TESTATOR HAVING RECEIVED

a a a a a a a a

a PORTION OF THAT FUND, REMAINDER INSUFFICIENT TO PAY BOTH a a a a a a a a

a LEGACIES

Where a portion of a fund is specifically bequeathed to one legatee, and a legacy charged on
a a a a a a a a a a a a a a a a

a the same fund is bequeathed to another legatee, then, if the testator receives a portion of that
a a a a a a a a a a a a a a a a

a fund, and the remainder of the fund is insufficient to pay both the specific and the
a a a a a a a a a a a a a a a

a demonstrative legacy, the specific legacy shall be paid first, and the residue (if any) of the
a a a a a a a a a a a a a a a

a fund shall be applied so far as it will extent in payment of the demonstrative legacy, and the
a a a a a a a a a a a a a a a a a

a rest of the demonstrative legacy shall be paid out of the general assets of the testator.
a a a a a a a a a a a a a a a

Illustration:

A bequeaths to B 1,000 rupees, part of the debt of 2,000 rupees due to him from W. He also
a a a a a a a a a a a a a a a a a a a

a bequeaths to C 1,000 rupees to be paid out of the debt due to him from W. A afterwards
a a a a a a a a a a a a a a a a a a

a receives 1 [500] rupees, part of that debt, and dies leaving only 1,500 rupees due to him from
a a a a a a a a a a a a a a a a a

a W. Of these 1,500 rupees, 1,000 rupees belong to B, and 500 rupees are to be paid to C. C is
a a a a a a a a a a a a a a a a a a a a

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 12

 FAMILY LAW- II

a also to receive 500 rupees out of the general assets of the testator. Substituted by Act 10 of
a a a a a a a a a a a a a a a a a

a 1927, section 2 and Schedule I, for "5,000".

a a a a a a a

a SECTION 158 - ADEMPTION WHERE STOCK, SPECIFICALLY BEQUEATHED,

a a a a a a a

a DOES NOT EXIST AT TESTATOR'S DEATH

a a a a a

Where stock which has been specifically bequeathed does not exist at the testator's death, the
a a a a a a a a a a a a a a

a legacy is adeemed. a a

Illustration:

A bequeaths to B "my capital stock of 1,000l. in East India Stock": "my promissory notes of
a a a a a a a a a a a a a a a a

a the Central Government for 10,000 rupees in their 4 per cent. loan". A sells the stock and the
a a a a a a a a a a a a a a a a a

a notes. The legacies are adeemed.

a a a a

SECTION 159 - ADEMPTION PRO TANTO WHERE STOCK SPECIFICALLY

a a a a a a a a

a BEQUEATHED, EXISTS IN PART ONLY AT TESTATOR'S DEATH a a a a a a a

Where stock which has been specifically bequeathed exists only in part at the testator's death,
a a a a a a a a a a a a a a

a the legacy is adeemed so far as regards that part of the stock which has ceased to exist.
a a a a a a a a a a a a a a a a a

Illustration:

A bequeaths to B his 10,000 rupees in the 5 1/2 per cent. loan of the Central Government. A
a a a a a a a a a a a a a a a a a a

a sells one-half of his 10,000 rupees in the loan in question. One-half of the legacy is adeemed.
a a a a a a a a a a a a a a a a

Section 160 - Non-ademption of specific bequest of goods described as connected with

a a a a a a a a a a a a

a certain place, by reason of removal

a a a a a

A specific bequest of goods under a description connecting them with a certain place is not
a a a a a a a a a a a a a a a

a adeemed by reason that they have been removed from such place from any temporary cause,
a a a a a a a a a a a a a a

a or by fraud, or without the knowledge or sanction of the testator.

a a a a a a a a a a a

Illustrations:

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 13

 FAMILY LAW- II

1. A bequeaths to B "all my household goods which shall be in or about my dwelling-

a a a a a a a a a a a a a a a

house in Calcutta at the time of my death". The goods are removed from the house to
a a a a a a a a a a a a a a a a

a save them from fire. A dies before they are brought back.
a a a a a a a a a a

2. A bequeaths to B "all my household goods which shall be in or about my dwelling-

a a a a a a a a a a a a a a a

house in Calcutta at the time of my death". During A's absence upon a journey, the
a a a a a a a a a a a a a a a

a whole of the goods are removed from the house. A dies without having sanctioned
a a a a a a a a a a a a a

a their removal. a

Neither of these legacies is adeemed. a a a a a

SECTION 161 - WHEN REMOVAL OF THING BEQUEATHED DOES NOT

a a a a a a a a a

a CONSTITUTE ADEMPTION a

The removal of the thing bequeathed from the place in which it is stated in the will to be
a a a a a a a a a a a a a a a a a a

a situated does not constitute an ademption, where the place is only referred to in order to
a a a a a a a a a a a a a a a

a complete the description of what the testator meant to bequeath.

a a a a a a a a a

Illustrations:

1. A bequeaths to B "all the bills, bonds and other securities for money belonging to me
a a a a a a a a a a a a a a a

a now lying in my lodgings in Calcutta". At the time of his death these effects had been
a a a a a a a a a a a a a a a a

a removed from his lodgings in Calcutta. a a a a a

2. A bequeaths to B all his furniture then in his house in Calcutta. The testator has a
a a a a a a a a a a a a a a a a

a house at Calcutta and another at Chinsurah, in which he lives alternately, being

a a a a a a a a a a a a

a possessed of one set of furniture only which he removes with himself to each house.
a a a a a a a a a a a a a a

a At the time of his death the furniture is in the house at Chinsurah.

a a a a a a a a a a a a a

3. A bequeaths to B all his goods on board a certain ship then lying in the river Hughli.
a a a a a a a a a a a a a a a a a

a The goods are removed by A's directions to a warehouse, in which they remain at the
a a a a a a a a a a a a a a a

a time of A's death. a a a

No one of these legacies is revoked by ademption.

a a a a a a a a

SECTION 162 - WHEN THING BEQUEATHED IS A VALUABLE TO BE

a a a a a a a a a a

a RECEIVED BY TESTATOR FROM THIRD PERSON; AND TESTATOR HIMSELF,

a a a a a a a a

a OR HIS REPRESENTATIVE, RECEIVES IT

a a a a

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 14

 FAMILY LAW- II

Where the thing bequeathed is not the right to receive something of value from a third person,
a a a a a a a a a a a a a a a a

a but the money or other commodity which may be received from the third person by the
a a a a a a a a a a a a a a a

a testator himself or by his representatives, the receipt of such sum of money or other
a a a a a a a a a a a a a a

a commodity by the testator shall not constitute an ademption, but if he mixes it up with the
a a a a a a a a a a a a a a a a

a general mass of his property, the legacy is adeemed;

a a a a a a a a

Illustration: A bequeaths to B whatever sum may be received from his claim on C. A

receives the whole of his claim on C, and sets it apart from the general mass of his property.
The legacy is not adeemed.

SECTION 163 - CHANGE BY OPERATION OF LAW OF SUBJECT OF SPECIFIC

BEQUEST BETWEEN DATE OF WILL AND TESTATOR'S DEATH

Where a thing specifically bequeathed undergoes a change between the date of the will and
the testator's death, and the change takes place by operation of law, or in the course of
execution of the provisions of any legal instrument under which the thing bequeathed was
held, the legacy is not adeemed by reason of such change.

Illustrations:

1. A bequeaths to B "all the money which I have in the 5 1/2 per cent. loan of the
Central Government". The securities for the 5 1/2 per cent. loan are converted during
A's lifetime into 5 per cent. stock.
2. A bequeaths to B the sum of 2,000 invested in Consolsin the names of trustees for A.
The sum of 2,000 is transferred by the trustees into A's own name.
3. A bequeaths to B the sum of 10,000 rupees in promissory notes of the Central
Government which he has power under his marriage settlement to dispose of by will.
Afterwards, in A's lifetime, the fund is converted into Consols by virtue of an
authority contained in the settlement.

No one of these legacies has been adeemed.

SECTION 164 - CHANGE OF SUBJECT WITHOUT TESTATOR'S KNOWLEDGE

Where a thing specifically bequeathed undergoes a change between the date of the will and

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 15

 FAMILY LAW- II

the testator's death, and the change takes place without the knowledge or sanction of the
testator, the legacy is not adeemed.

Illustration:

A bequeaths to B "all my 3 per cent. Consols". The Consols are, without A's knowledge sold
by his agent, and the proceeds converted into East India Stock. This legacy is not adeemed.

SECTION 165 - STOCK SPECIFICALLY BEQUEATHED LENT TO THIRD PARTY

ON CONDITION THAT IT BE REPLACED

Where stock which has been specifically bequeathed is lent to a third party on condition that
it shall be replaced, and it replaced accordingly, the legacy is not adeemed.

SECTION 166 - STOCK SPECIFICALLY BEQUEATHED SOLD BUT REPLACED,

AND BELONGING TO TESTATOR AT HIS DEATH

Where stock specifically bequeathed is sold, and an equal quantity of the same stock is
afterwards purchased and belongs to the testator at his death, the legacy is not adeemed.

THE INTERNATIONAL PERSPECTIVE:

THE ADEMPTION OF LEGACIES OF STOCKS AND BONDS:

"One must consider it in the same manner as if a testator had given a particular horse to A. B.
if that horse died in the testator's lifetime, or was disposed of by him, then there is nothing
upon which the bequest can operate," observed Lord Thurlow a century and a half ago in
Stanley v. Potter.9 Not that there was a horse involved in that case. The Lord Chancellor was
deciding that where a bond, received as security for a debt, had been bequeathed by the
creditor in his will, and the debt paid off before his death without the will having been
changed, the legatee of the bond should receive nothing in its place. A week later, in
Humphreys v. Humphreys,10 he elaborated his reasoning, saying that "he was satisfied from
the consideration he had given the cases on this subject on a former occasion,11 that the only
rule to be adhered to was to see whether the subject of the specific bequest remained in specie
9
Cox Eq. Cas. 180, 182, 30 Eng. Reprint 83, 84 (1789).
10
Cox Eq. Cas. 184, 30 Eng. Reprint 85 (1789).
11
3 Ashburner v. Macguire, 2 Bro. C. C. 108, 29 Eng. Reprint 62 (1786).

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 16

 FAMILY LAW- II

at the time of the testator’s death; for if it did not, then there must be an end of the be- quest .
. . and therefore that so far as the £2000 stock sold by the testator in his lifetime, the legacy in
this case was gone."12

The words cast a new principle into clear form.13 Thereafter the question of the ademption, or
a a a a a a a a a a a a a a a

a failure, of a specific legacy of a security was to be a simple one of fact as to the existence of
a a a a a a a a a a a a a a a a a a a a

a the subject bequeathed, whereas previously the intention of the testator had been an important
a a a a a a a a a a a a a

a consideration.14 The inclusion of horses and stocks within one category had been easy and a a a a a a a a a a a a a

a natural, and the rule thus extended became the law not only in England but in the majority of
a a a a a a a a a a a a a a a a a

a American states as well.15 a a a

Lord Thurlow hoped, of course, that he had found a way to avoid confused and dangerous
a a a a a a a a a a a a a a a

a inquiries into the wishes of the testator.16 The hope proved false. Too many cases arose in
a a a a a a a a a a a a a a a

a which justice or the quite obvious intent of the testator demanded that the legacy be
a a a a a a a a a a a a a a

a effectuated although the subject was gone. Clearly, it had always been possible to class many
a a a a a a a a a a a a a a

a bequests of that character with general legacies, which are typified by simple gifts of money17
a a a a a a a a a a a a a a

a and are not subject to ademption.18

a a a a a

12
Supra note 3.
13
It appears inchoately in Ashburner v. Macguire, supra note 3; see (1930) 18 CAL. L. REV. 711.
a a a a a a a a a a a a a a a a a

14
6 At the beginning of the seventeenth century Swinburne wrote: "... if the testator . . unwillingly alienated
a a a a a a a a a a a a a a a a a a

athe thing . . bequeathed, this is no ademption ... unless . .the testator did purpose by the same alienation to
a a a a a a a a a a a a a a a a a a a a

atake away the legacies . .But if the Testator ... of his owned accord . . . alienate the thing bequeathed .. .
a a a a a a a a a a a a a a a a a a a a a a

athis is an ademption . . . for it is sufficient in last wills, for the revoking of a legacies, that the Testators
a a a a a a a a a a a a a a a a a a a a a a

amean- ing do appear even by an act, otherwise insufficient." SWINBURNE, TESTA- MENTS AND LAST WILLS
a a a a a a a a a a a a a a a

a(1635) pt. 7, 192. See also Partridge v. Partridge, Cas. t. Tal. 226, 227 (1736); Hambling v. Lister, Amb. 401,
a a a a a a a a a a a a a a a a a a a

a402 (1761); 2 JARMAN, WILLS (7th ed. 1930)

a a a a a a a

15
7 Harvard Unitarian Society v. Tufts, 151 Mass. 76, 23 N. E. 1006 (1890); see Shaw, C. J., in Richards v.
a a a a a a a a a a a a a a a a a a a a a

aHumphreys, 32 Mass. (15 Pick.) 133, 135 (1833); 2 PAGE, WILLS (2d ed. 1926) § 1335; cf. Walton v. Walton,
a a a a a a a a a a a a a a a a a a a

a7 Johns. Ch. 258 (N. Y. 1823); White v. Winchester, 23 Mass. (6 Pick.) 48 (1827). An ademption is sometimes
a a a a a a a a a a a a a a a a a a a

asaid to take place when a legacy is satisfied by a gift or advancement. More usually the word is reserved for
a a a a a a a a a a a a a a a a a a a a

athe situation which will be the exclusive concern of this note, that is, where the subject of the bequest has
a a a a a a a a a a a a a a a a a a a

abeen extinguished by alienation, destruction, or altera- tion. See (1924) 24 COL. L. REV. 405.
a a a a a a a a a a a a a a

16
8 In Stanley v. Potter, supra note 1, at 182, 30 Eng. Reprint at 84, Lord Thurlow said, "I do not think that
a a a a a a a a a a a a a a a a a a a a a a a

athe question in these cases turns on the intention of the testator. The idea of proceeding on the animus
a a a a a a a a a a a a a a a a a a

aadimendi has introduced a degree of confusion in the cases which is inexplicable, and I can make out no
a a a a a a a a a a a a a a a a a a

aprecise rule from them upon that ground ... I believe it will be a safer and clearer way to adhere to the plain
a a a a a a a a a a a a a a a a a a a a a a

arule .. . I see no end to the confusion arising from the following any other line." In Hum- phreys v.
a a a a a a a a a a a a a a a a a a a a

aHumphreys, supra note 2, at 185, 30 Eng. Reprint at 85, he re- peated it: ".. .the idea of discussing what
a a a a a a a a a a a a a a a a a a a a

awere the particular motives and intention of the testator in each case, in destroying the subject of the be-
a a a a a a a a a a a a a a a a a a

aquest, would be productive of endless uncertainty and confusion .

a a a a a a a a a

17
3 POMEROY, EQUITY JURISPRUDENCE (4th ed. 1918) 1132.
a a a a a a a a

18
9 3 POMEROY, EQUITY JURISPRUDENCE (4th ed. 1918) § 1132. 10 3 POMEROY, loc. cit. supra note 9; 4
a a a a a a a a a a a a a a a a a a a

aSCHOULER, WILLS, EXECUTORS AND ADMINISTRATORS (6th ed. 1923) § 3057.

a a a a a a a a a

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 FAMILY LAW- II

Resort to this expedient was difficult, however, because too often the will referred plainly to
the particular security. Moreover, it was unsatisfactory because general legacies are the first
to abate in the event of a deficiency of assets.19

To cope with the situation properly it was necessary to resort to a new concept, that of the
a a a a a a a a a a a a a a a a a

a demonstrative legacy.20 Such legacies were held to be liable neither to ademption nor to a a a a a a a a a a a a a

a abatement ratably with general legacies, and although a particular security might be referred
a a a a a a a a a a a a

a to, the reference was interpreted as a mere indication of a convenient fund.21 Since the
a a a a a a a a a a a a a a

a testator's intent had always been the basic factor in making a legacy specific,22 it then became
a a a a a a a a a a a a a a a

a possible in many cases to prevent ademption by holding that the maker of the will had had in
a a a a a a a a a a a a a a a a a

a mind a demonstrative and not a specific legacy.23

a a a a a a a a

But unfortunately for what was in substance a return to the original considerations of intent in
a a a a a a a a a a a a a a a

a relation to ademp-tion, the classification of bequests, though nominally referrable to the

a a a a a a a a a a a

a testator's wishes, had long been a highly technical matter.24 While that fact had been
a a a a a a a a a a a a a

a unimportant so long as the animus adimendi might be resorted to as a secondary escape, the
a a a a a a a a a a a a a a a

a technicalities remained when the rule was changed, so that today the effectuation of legaciesa a a a a a a a a a a a a

a of stocks is very frequently a question of law, and of impossibly refined and contradictory law
a a a a a a a a a a a a a a a

a as well.25 The present confusion in many jurisdictions is well illustrated by the case of First
a a a a a a a a a a a a a a a

a National Bank v. Perkins Institute for the Blind,26 decided last May by the Supreme Judicial
a a a a a a a a a a a a a a

a Court of Massachusetts. There the testatrix had bequeathed to her nephew "all of my stock in
a a a a a a a a a a a a a a a

a the . . . Standard Oil Company of New Jersey."

a a a a a a a a a

19
113 POMEROY, op. cit. supra note 9, §§ 1135, n. 2, 1136, 1137, 1138, 1139.
20
2The device originated in Roman law. See Walton v. Walton, supra note 7, at 262; Walls v. Stewart, 16 Pa.
a a a a a a a a a a a a a a a a a a a a

a275, 281 (1851); 1 ROPER, LEGACIES (4th ed. White, 1847) 192. As distinguished from the ordinary
a a a a a a a a a a a a a a a

apecuniary or general legacy liable to abatement, it seems to have been in some degree of use by English
a a a a a a a a a a a a a a a a a a

ajudges at the time of Lord Camden's opinion in Attorney- General v. Parkin, Ambler 566 (1769)
a a a a a a a a a a a a a a a

21
3 See Walton v. Walton, supra note 7, at 262; Walls v. Stewart, supra note 12, at 281; 3 POMEROY, op.
a a a a a a a a a a a a a a a a a a a a a

acit. supra note 9, § 1133.

a a a a a

22
Pawlet's Case, T. Raym. 335 (1679).
a a a a a a

23
5 Gillaume v. Adderley, supra note 1
a a a a a a a

24
To illustrate, in Ashburner v. Macguire, supra note 3, at 111, 29 Eng. Reprint at 64, the question of
a a a a a a a a a a a a a a a a a a a

aclassification of a legacy of stock is dismissed with the words, "The testator says, I give my capital stock to,
a a a a a a a a a a a a a a a a a a a

aetc., the pronoun my has been relied on in many cases, in deciding the legacy to be specific."
a a a a a a a a a a a a a a a a a

25
It has been said that the cases classifying legacies as specific or other- wise "are . . . somewhat
a a a a a a a a a a a a a a a a a a a

acontradictory, run into nice and shadowy distinc- tions, . . . form a complicated labyrinth . .. and there is
a a a a a a a a a a a a a a a a a a a

adanger that a reex- amination of them would produce more confusion than light; and instead of illustrating,
a a a a a a a a a a a a a a a a

awould obscure the question before us." In re Foote, 39 Mass. (22 Pick.) 299, 302 (1839).
a a a a a a a a a a a a a a a

26
9 176 N. E. 532 (Mass. 1931).
a a a a a a a

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 FAMILY LAW- II

This stock was callable at a premium and was so called before the testatrix's death, in the
course of refunding operations whereby debentures issued for the purpose were sold to New
York bankers who agreed to give holders of the stock preferential subscription rights.
Because the debenture issue was oversubscribed the testatrix was able to exchange only part
of her holdings for debentures and was forced to take the balance in cash.

After her death residuary legatees opposed the transfer of the debentures to the legatee of the
a a a a a a a a a a a a a a a

a stock, maintaining that the stock legacy had been adeemed, in which contention they were
a a a a a a a a a a a a a

a supported by the court. The primary question of classification is not discussed in the opinion;
a a a a a a a a a a a a a a

27
a the brief remark that "the legacy of the specific thing had been disposed of."
a a a a a a a a a a a a a a a indicates the a

a holding and suggests that the court thought the law so clear that explanation was unnecessary.
a a a a a a a a a a a a a a

a The decision, if this be so, must be supposed to turn on phraseology, on the fact that the word
a a a a a a a a a a a a a a a a a a

a "my" preceded the word "stock" in the dis- posing clause, for it is frequently held that such
a a a a a a a a a a a a a a a a

a words make a legacy specific.28

a a a a a

Yet if the testator had mentioned the number of shares and omitted the single word "my" it is
likely that most courts would have considered the legacy demonstrative.29 It is highly
doubtful that this sort of reasoning appeals very strongly to the intelligent layman. He is
likely to suppose that the testatrix when making her will did not think of the danger that the
stock might be called, and that in any case she was quite ignorant of what the courts would do
if it were. Time and again judges themselves have affirmed their belief that will- makers are
not aware of the doctrine of ademption.30 Nor is the rationale convincing that the use of the
possessive pronoun manifests an intention at the time of the will to give the particular thing

27
Ibid.
a

28
Ashburner v. Macguire, supra notes 3 and 17; cf. Tomlinson v. Bury, 145 Mass. 346, 14 N. E. 137 (1887); 3
a a a a a a a a a a a a a a a a a a a a a

aPOMEROY, op. cit. supra note 9, § 1130; 1 ROPER, op. cit. supra note 12, at 204.
a a a a a a a a a a a a a a a a

29
22 Tifft v. Porter, 8 N. Y. 516 (1853). Massachusetts goes even farther, holding such legacies general.
Johnson v. Goss, 128 Mass. 433 (1880); Slade v. Talbot, 182 Mass. 256, 65 N. E. 374 (1902); cf. Metcalf v.
Framing- ham Parish, 128 Mass. 370 (1880); Harvard Unitarian Society v. Tufts, supra note 7; Thayer v.
Paulding, 200 Mass. 98, 85 N. E. 868 (1908); Boston Safe Deposit & Trust Co. v. Reed, 229 Mass. 267, 118 N. E.
333 (1918).
30
"We must hold the legacy . . . specific although we cannot but fear that, if the testatrix had been fully
advised of the consequences of making a legacy specific, she would have changed her will." Holmes, J., in
Harvard Unitarian Society v. Tufts, supra note 7, at 78, 23 N. E. at 1007. "It is probable that he had no notion
that, in case of the fluctuation in the value of stocks, or from any reason, it should become politic to change
these securi- ties, the gift would thereby become extinguished." Johnson v. Conover, 54 N. J. Eq. 333, 340, 35
Atl. 291, 294 (1896). See Oliver v. Oliver, L. R. 11 Eq. 506, 513 (1871); Fidelity Title & Trust Co. v. Young, 101
Conn. 359, 369, 125 Atl. 871, 874 (1924). If there be any significant difference in this matter between the
knowledge of the general legal practitioner and that of his client, it remains questionable whether the former
is entitled to rely on the risky technical shorthand when he can use plain English. See the forms given in
TUCKER, WILLS (3d ed. 1927) 252, 253.

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 19

 FAMILY LAW- II

mentioned.31 Such an intent is as obvious as it is irrelevant; the single question of importance

is: did the testa- trix intend to give nothing else if the stock could not be given?32

It may be that the unreported facts of the Massachusetts case were such that the result
harmonized with the answer to that question. Whether this be so cannot be gathered from the
opinion. Yet in the absence of good reasons to the contrary, it is a fair presumption that
ademption was not intended.33 Since this problem of intention necessarily confronts the
courts by virtue of the very fact that an expression of will is being dealt with, it is desirable to
bear in mind the numerous avenues of escape from the technicalities thought to have been
control- ling in the Perkins Institute case. Fortunately these technicalities are but the remnants
of a conceptualistic mode of thinking that is fundamentally foreign to the modern outlook. 34
For this reason and because the purpose behind the development of the demonstrative legacy
has been incompatible with these rules, they are more or less flatly contradicted by a number
of other principles which are likely to lead to their definite overthrow. Insistently, for
example, the courts continue to repeat that the testator's wishes are paramount; 35 that the will
is to be interpreted as a whole;36 that constructions leading to partial intestacy are to be
avoided; that there exists a "judicial bias" against specific legacies.37 Where these resources
seem inadequate to avoid classification as specific, there remains a possibility which is of
particular value in dealing with bequests of stocks and bonds, namely, that a conversion from
one type of security into another is not destruction or alienation but merely a change in
form.38

31
"Although the testator may, at the time of executing the will, have an article or articles of the same kind as
that which he purports to give, still, unless his language is sufficient to refer to, designate and identify the very
article itself as forming part of his estate, which he thereby gives, the legacy is not specific, but general. Under
these circumstances the word "my" is often operative in identifying the article." 3 POMEROY, op. cit. supra
note 9, § 1130. ". . . if a clear intention appear from the will that the testator meant to bequeath the identical
stock or annuities he was possessed of at the date of it ... such intention will constitute the bequest specific." 1
ROPER, op. cit. supra note 12, at 214.
32
In Kenaday v. Sinnott, 179 U. S. 606, 21 Sup. Ct. 233 (1900), the legacy was "deposits of currency entered on
my bank book .... amounting to $10,000 more or less." 179 U. S. at 621, 21 Sup. Ct. at 238.
33
Tifft v. Port
34
Attorney- General v. Parkyns [holding legacies general] I collect from the note I read of that case, that Lord
Camden would have had great difficulty in making those legacies contributory in event of a deficiency of a
35
Kenaday v. Sinnott, supra n
36
Metcalf v. Framingham Parish, supra
37
Ibid.
38
This conclusion has been most frequently adopted where it could be said that the conversion was not
initiated by the testator, as for example upon the recapitalization, reorganization, or consolidation of the
company whose securities were originally held. Goode v. Reynolds, 208 Ky. 441, 271 S. W. 600 (1925).

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 20

 FAMILY LAW- II

BIBLIOGRAPHY:

E-RESOURCES:

1. https://www.legalcrystal.com/act/46896/indian-succession-act-1925-chapter-16
2. https://indiankanoon.org/search/?formInput=ademption
3. https://www.casemine.com/search/in/ademption%2Bof%2Bthe%2Blegacy
4. https://lawgist.in/indian-succession-act/154

ADEMPTION OF LEGACIES UNDER THE INDIAN SUCCESSION ACT, 1923 Page 21