Legacies, ademption and protection of the estate

1. Kinds of legacy

Specific legacy (section 142). Where a testator bequeaths a specified part of his property, distinguished from all other parts of it, the legacy is specific. The illustrations give “the diamond ring presented to me by C”, “my gold chain”, “the sum of 1,000 rupees in a certain chest”, “the debt which B owes me”. The thing given is identified and severed from the rest of the estate. Section 143 adds a caution: where a certain sum is bequeathed, the legacy is not specific merely because the stock, funds or securities in which it is invested are described in the will.

Demonstrative legacy (section 150). Where a testator bequeaths a certain sum of money or quantity of a commodity and refers to a particular fund or stock as the primary fund out of which payment is to be made, the legacy is demonstrative. The Explanation puts the distinction in one line: where specified property is given to the legatee, the legacy is specific; where the legacy is directed to be paid out of specified property, it is demonstrative. Example: “Rs 50,000 to B, to be paid out of my deposit in Canara Bank”.

General legacy. The Act does not define it; it is a legacy that is neither specific nor demonstrative, payable out of the general assets, such as “Rs 1 lakh to C” or “a car to D” where no particular car is identified. Section 171 treats a bequest of a thing described in general terms as a direction to the executor to provide such a thing.

Residuary legacy. The surplus left after debts, expenses and the other legacies. A residuary legatee may be constituted by any words showing that the testator intended the person to take the surplus (section 102), and he takes all property not otherwise effectually disposed of, including lapsed and void legacies (section 103).

Section 151 links the first two: where part of a fund is given specifically and a demonstrative legacy is charged on the same fund, the specific legatee is paid first and the demonstrative legacy comes out of what remains of the fund and, if that is short, out of the general assets.

2. Ademption (sections 152 to 166)

Section 152. If anything specifically bequeathed does not belong to the testator at his death, or has been converted into property of a different kind, the legacy is adeemed: it cannot take effect, because the subject-matter has been withdrawn from the operation of the will. If A bequeaths “my gold chain” and sells or gives it away in his lifetime, or has it melted into bangles, B takes nothing, not even the price. The testator's intention is irrelevant; ademption follows from the disappearance of the thing.

• Section 153: a demonstrative legacy is not adeemed because the fund on which it is charged has ceased to exist or changed; it is then paid out of the general assets.
• Section 154: a specific bequest of the right to receive something from a third party (a debt) is adeemed if the testator himself receives it.
• Section 155: if the testator receives part of an entire thing specifically bequeathed, the legacy is adeemed pro tanto, to that extent.
• Section 158: a specific bequest of stock that does not exist at the testator's death is adeemed.
• Section 161: removing the thing from the place named in the will is not ademption, where the place is mentioned only to complete the description.
• Section 164: where the thing specifically bequeathed is changed between the date of the will and the death without the testator's knowledge or sanction (for example, sold by his agent), the legacy is not adeemed.
• Sections 165 and 166: stock lent to a third party on condition of replacement, or sold and replaced so that it belongs to the testator at death, is not adeemed.

A general legacy can never be adeemed, because it is not tied to any particular thing.

3. Abatement

Debts are paid before legacies (section 325). If the assets, after debts, expenses and specific legacies, are insufficient to pay the general legacies in full, the general legacies abate rateably (section 327), and the executor cannot prefer one legatee to another. A specific legacy is delivered without abatement where the assets suffice for the debts (section 328). A demonstrative legacy is paid first out of its fund; so far as the fund is short, it is paid out of the general assets (sections 151 and 153) and to that extent ranks with the general legacies. Section 331 treats a legacy for life and a sum appropriated to produce an annuity as general legacies for the purpose of abatement. The residuary legatee bears the loss first, since he takes only what is left.

4. Protection of the property of the deceased (sections 192 to 210)

Part VII gives a quick, summary remedy where someone seizes, or threatens to seize, a deceased person's property before the heirs can establish their claim.

• Section 192: any person claiming a right by succession to the property, movable or immovable, of a deceased person may apply to the District Judge of the district where any part of it is situated, either after another has taken possession or when forcible seizure is apprehended. An agent, relative or friend, or the Court of Wards, may apply on behalf of a minor or a disqualified or absent person.
• Section 193: the judge examines the applicant on oath and makes such inquiry as he thinks necessary into whether the person in possession has no lawful title and the applicant is probably entitled.
• Section 194: if satisfied, he summons the party complained of, publishes notice, and after a reasonable time summarily determines the right to possession and delivers possession accordingly. He may at once appoint an officer to take an inventory and seal the effects.
• Section 195: if there is danger of misappropriation or waste before the summary proceeding ends, he may appoint one or more curators, whose authority lasts no longer than the proceeding. For land, the powers of a curator may be delegated to the Collector. The appointment must be published.
• Section 196: the curator may be authorised to take possession generally, or until security is given or inventories are made; the judge may instead leave the party in possession on security.
• Section 197: once a succession certificate, probate or letters of administration is granted, the curator cannot exercise authority belonging to the grantee.
• Section 198: the curator gives security and may be paid remuneration not exceeding five per cent of the movables and of the annual profits of the immovables; surplus money is paid into court.
• Sections 200 to 203: suits may be brought or defended in the curator's name subject to the judge's orders (he needs express authority to collect debts or rents); the judge may make allowances to the apparent owners; the curator must file accounts, which interested parties may inspect.
• Section 205: the application must be made within six months of the death.
• Section 207: the Court of Wards is made curator where the claimant is a ward of that court.
• Section 208: nothing in Part VII bars a regular suit by the unsuccessful party. Section 209: the summary decision settles only actual possession; for that purpose it is final and not subject to appeal or review.
• Section 210: the State Government may appoint public curators, whom the District Judge nominates where the choice is left to him.

5. Problem

By his will T leaves “my Maruti car” to A, “Rs 2 lakh out of my SBI fixed deposit” to B, Rs 1 lakh each to C and D, and the residue to E. Before his death T sells the Maruti and buys a Honda, and closes the SBI deposit. After debts, the estate consists of Rs 2.5 lakh in cash and the Honda, worth Rs 5 lakh. Who takes what?

Issue. Classification of each legacy, ademption of A's and B's legacies, and abatement.

Law. A specific legacy is adeemed if the thing is not the testator's at death (section 152). A demonstrative legacy is not adeemed when its fund disappears; it is paid from the general assets (section 153) and is treated as general for abatement. General legacies abate rateably (section 327).

Application. “My Maruti car” is specific; the Maruti was sold, and the Honda is property of a different kind, so A's legacy is adeemed. B's legacy is demonstrative; the deposit's closure does not adeem it, and B ranks with C and D for payment out of general assets. The general and demonstrative claims total Rs 4 lakh against assets of Rs 7.5 lakh (cash plus the Honda), so all are paid in full.

Conclusion. A takes nothing. B, C and D are paid in full (Rs 2 lakh, Rs 1 lakh and Rs 1 lakh). Since the cash covers only Rs 2.5 lakh, the executor may sell the Honda (section 307) to pay the balance. E, the residuary legatee, takes what remains, Rs 3.5 lakh in value.

How this is examined

The stock questions are “Explain the different kinds of legacies” and “What is ademption? When is a legacy not adeemed?”, often as short notes. Quote sections 142, 150, 152 and 153, and use the illustrations. The curator provisions come up as a short note on “protection of the property of a deceased person”: cover sections 192, 194, 195, 205 and 209.