Where a will purports to make two bequests to the same person, and a question arises whether the testator intended to make the second bequest instead of or in addition to the first;
if there is nothing in the will to show what he intended, the following rules shall have effect in determining the construction to be put upon the will:-
(a) If the same specific thing is bequeathed twice to the same legatee in the same will or in the will and again in the codicil, he is entitled to receive that specific thing only.
(b) Where one and the same will or one and the same codicil purports to make, in two places, a bequest to the same person of the same quantity or amount of anything, he shall be entitled to one such legacy only.
(c) Where two legacies of unequal amount are given to the same person in the same will, or in the same codicil, the legatee is entitled to both.
(d) Where two legacies, whether equal or unequal in amount, are given to the same legatee, one by a will and the other by a codicil, or each by a different codicil, the legatee is entitled to both legacies. Explanation: In clauses (a) to (d) of this section, the word "will"does not include a codicil.
Illustrations:
(i) A, having ten shares, and no more, in the Imperial Bank of India, made his Will, which contains near its commencement the words "I bequeath my ten shares in the Imperial Bank of India to B". After other bequests, the Will concludes with the words "and I bequeath my ten shares in the Imperial Bank of India to B". B is entitled simply to receive A's ten shares in the Imperial Bank of India.
(ii) A, having one diamond ring, which was given to him by B, bequeaths to C the diamond ring which was given by B. A afterwards made a codicil to his Will, and thereby, after giving other legacies, he bequeathed to C the diamond ring which was given to him by B, C can claim nothing except the diamond ring which was given to A by B.
(iii) A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will repeats the bequest in the same words. B is entitled to one legacy of 5,000 rupees only.
(iv) A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will bequeaths to B the sum of 6,000 rupees. B is entitled to receive 11,000 rupees.
(v) A, by his will, bequeaths to B 5,000 rupees and by a codicil to the will he bequeaths to him 5,000 rupees. B is entitled to receive 10,000 rupees.
(vi) A, by one codicil to his will, bequeaths to B 5,000 rupees and by another codicil bequeaths to him, 6,000 rupees. B is entitled to receive 11,000 rupees.
(vii) A, by his will, bequeaths "500 rupees to B because she was my nurse", and is another part of the will bequeaths 500 rupees to B "because she went to England with my children". B is entitled to receive 1,000 rupees.
(viii) A, by his will, bequeaths to B the sum of 5,000 rupees and also, in another part of the will, an annuity of 400rupees. B is entitled to both legacies.
(ix) A, by his will, bequeaths to B the sum of 5,000 rupees and also bequeaths to him the sum of 5,000 rupees if he shall attain the age of 18. B is entitled absolutely to one sum of 5,000 rupees, and takes a contingent interest in another sum of 5,000 rupees.
Legal Commentary & Landmark Judgments: Section 101
Section 101 resolves cumulative versus substitutional bequests, establishing rules to determine whether a legatee named in two separate gifts is entitled to both or only to one.
(d) Different instruments (e.g., will and codicil), equal or unequal sums: The legatee is presumed to take both bequests cumulatively, as the testator took the trouble to execute a separate document.
All these rules are subject to the testator's contrary intention gathered from the text of the documents.
Section 101 is vital in probate proceedings involving codicils. When a testator executes a codicil giving Rs. 5 lakhs to a niece who was already bequeathed Rs. 5 lakhs in the original will, the executor must know whether to pay Rs. 5 lakhs or Rs. 10 lakhs. Under Section 101(d), because they are in different instruments, the presumption is that the niece takes Rs. 10 lakhs cumulatively.