Where a testator absolutely bequeaths a fund, so as to sever it from his own estate, but directs that the mode of enjoyment of it by the legatee shall be restricted so as to secure a specified benefit for the legatee;
if that benefit cannot be obtained for the legatee, the fund belongs to him as if the will had contained no such direction.
Illustrations:
(i) A bequeaths the residue of his property to be divided equally among his daughters, and directs that the shares of the daughters shall be settled upon themselves respectively for life and be paid to their children after their death. All the daughters die unmarried. The representatives of each daughter are entitled to her share of the residue.
(ii) A directs his trustees to raise a sum of money for his daughter, and he then directs that they shall invest the fund and pay the income arising from it to her during her life, and divide the principal among her children after her death. The daughter dies without having ever had a child. Her representatives are entitled to the fund.
Legal Commentary & Landmark Judgments: Section 139
Section 139 provides an exception to Section 138, validating directions that restrict the mode of enjoyment of an absolute bequest where such restriction is created to secure a specific benefit for the legatee.
In drafting protective wills for dependents with special needs, counsel should anchor restrictions in Section 139, clearly specifying that the restrictions on enjoyment are created solely to secure professional care, medical support, and housing for the beneficiary.