Vol. 12 · pages 276–280

255COMMON LAW Illus.: A has three sons B, C, D. He makes a will and in that will gives a legacy to each of his sons. Subsequently to the making of his will, A makes an advancement of a certain sum of money. 2. Here, there is a legacy and afterwards a portion. Are they cumulative or are they alternative. Is the child which has got a portion also entitled to get the portion ? Or is the claim for legacy satisfied by the subsequent portion given by the father ? 3. The answer of equity is that, a child cannot get both, legacy and a portion. The claim for legacy shall be held to be satisfied by the subsequent grant of the portion. This is called the rule against double portions. II. Satisfaction of Portion by Legacies 1. This is the converse of the first. In the first class of cases, there is first legacy then a portion. In the second, there is a portion first and then there is a legacy. 2. In the former case, the question was whether a legacy by will was satisfied by a subsequent portion. In this, the question is whether the obligation to give a portion is satisfied by a subsequent legacy. 3. The answer here is the same as in the former case. The same rule against double portion applies. So that a portion will be satisfied by a legacy. 4. When the will precedes the settlement, it is only necessary to read the settlement as if the person making the provision had said, “I mean this to be in lien of what I have given by my will”. But if the settlement precedes the will, the testator must be understood as saying, “I give this in lien of what I am already bound to give, if those to whom I am so bound, will accept it”. 5. The same rule applies in the case of a portion followed by a portion. II. Limitations on the rule of double portions 1. The rule does not apply : (1) In the case of legacy and a portion—where the legacy is expressed to be given for a particular purpose and the portion subsequently advanced is for the same purpose.

256 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (2) In the case of portion and legacy, and in the case of portion and portion—where the property is actually transferred to the child and then a provision is made either by way of a legacy or portion—in short it applies only where the first portion is only a debt. (3) Where the person, who makes the provision is the parent or a person in loco parentis— If, therefore, a person gives a legacy to a stranger and then makes a settlement on the stranger of vice versa, the stranger can take both, the rule against double portion does not apply to him: (i) An illegitimate child is a stranger; (ii) a grand child is also a stranger: (iii) a stranger cannot take advantage of the satisfaction of a child’s share. III. Cases of two Legacies given by the same will or by a will and Codial. 1. Question is whether the second Legacy is intended to be additional to the first or to be merely repetition. 2. The leading case is Hooby vs. Hatton, 1 Bro. C. C. 390 N. 3. Two class of cases to be considered separately— (1) Where the subject-matter of the legacy is a thing. (2) Where the subject-matter of legacy is money. 4. Where the subject-matter of the Legacy is a thing, Rule : Where the same thing is given twice—not additional but repetition. 5. Where the legacies are pecuniary legacies : (1) The rule varies according as the gifts are contained in the same instrument or in different instruments. (2) Two pecuniary legacies in the same instrument. Rule: (i) If equal—repetition. (ii) If unequal—cumulative. 3. Two pecuniary legacies in different instrument. Rule.—They are cumulative. Exception.—If same motive is expressed for both gifts and the same sums are given—then repetitition.

257COMMON LAW B. Cases in which the prior obligation is of the nature of a debt. 1. Cases may be divided into two classes— (i) Satisfaction of debt by a Legacy. (ii) Satisfaction of debt by a portion. (i) Satisfaction of debt by a Legacy. (1) This case arises where a debtor, without taking notice of the debt bequeathes a sum by way of legacy to his creditor. Question is : Is the legacy to be taken as satisfying the debt or is the creditor entitled to the legacy and also the debt ? (2) Rule.—That the legacy shall be taken as satisfying the debt. (3) Limitation on the Rule. —The rule does not apply in the following cases— (i) Where the legacy is of lesser amount than the debt—no satisfaction, even protanto. (ii) Where the legacy is given upon a contingency. (iii) Where the legacy is of an uncertain amount— e.g. residue. (iv) Where the time fixed for payment of the legacy is different from that at which the debt becomes due—so as to be equally advantageous to the creditor. (v) Where the subject-matter of the legacy differs from the debt, e.g. land. (ii) Satisfaction of debt by Portion. (1) Such a case arises where the father becomes indebted to his child and then advances a portion to him in his lifetime. The Question is : Can the child claim both—the debt as well as the portion ? Or Is the debt satisfied by the portion ? (2) Rule.—Debt is satisfied by the portion. (3) This rule is subject to the same limitations. V. Difference between Performance and Satisfaction. Further notes are not available—ed.) zz