COMMON LAW 255
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.
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 ?
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
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.
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.
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.
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”.
- The same rule applies in the case of a portion followed by a portion.
II. Limitations on the rule of double portions
- 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.