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.
Question is whether the second Legacy is intended to be additional to the first or to be merely repetition.
The leading case is Hooby vs. Hatton, 1 Bro. C. C. 390 N.
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.
Where the subject-matter of the Legacy is a thing, Rule : Where the same thing is given twice—not additional but repetition.
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.
- 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.