The personal representative may appropriate any part of the real or personal estate, including things in action, of the deceased in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased, or of any other interest or share in his property, whether settled or not, as to the personal representative may seem just and reasonable, according to the respective rights of the persons interested in the property of the deceased: provided that –
- An appropriation shall not be made to affect prejudicially any specific devise or bequest;
- An appropriation of property, whether or not being an investment authorized by law or by will, if any, of the deceased for the investment of money subject to the trust, shall not be made except with the following consents;
- When made for the benefit of a person absolutely and beneficially entitled in possession, the consent of that person,
- When made in respect of any settled legacy share or interest, the consent of either the trustee thereof, if any (not being also the personal representative), or the person who may for the time being be entitled to the income:
If the person whose consent is so required as aforesaid is an infant or cannot give consent, it shall be given on his behalf by his parents or parent, testamentary or guardian, or a person appointed as deputy for him by the court. Or if in the case of an infant, there is no such parent or guardian, by the court on the application of his next friend.
- No consent (save of such trustee as aforesaid) shall be required on behalf of a person who may come into existence after the time of appropriation, or who cannot be found or ascertained at that time.
- If no deputy is appointed for a person who cannot consent, then if the appropriation is of an investment authorized by law or by the will, if any, of the deceased for the investment of money subject to the trust, no consent shall be required on behalf of the said person.
- If independently of the personal representative there is no trustee of a settled legacy share or interest, and no person of full age and capacity entitled to the income thereof, no consent shall be required to an appropriation in respect of such legacy share or interest, provided that the appropriation is of an investment authorized as aforesaid.
Any property duly appropriated in line with the above-mentioned powers shall be treated as an authorized investment and may be retained or dealt with accordingly.
The personal representative may ascertain and fix the value of the respective parts of the real and personal estate and the liabilities of the deceased as he may think fit, and shall for that purpose employ a duly qualified valuer in any case where such employment may be necessary, and may make any conveyance (including an assent) which may be requisite for giving effect to the appropriation.
An appropriation made in line with the provisions above shall bind all persons interested in the property of the deceased whose consent is not hereby made requisite.
The personal representative shall, in making the appropriation, have regard to the rights of any person who may thereafter come into existence, or who cannot be found or ascertained at the time of appropriation, and of any other person whose consent is not required.
The above provision shall not prejudice any other power of appropriation conferred by law or by will (if any) of the deceased and takes effect with any extended powers conferred by will (if any) of the deceased, and where an appropriation is made, in respect of settled legacy, share or interest, the property appropriated shall remain subject to all trusts and powers of leasing, disposition, and management or varying investments which would have been applicable thereto or to the legacy, share or interest in respect of which the appropriation is made, if no such appropriation had been made.
If after any real estate has been appropriated in purported exercise of the powers conferred under section 41 of the Administration of Estates Act 1925, the person to whom it was conveyed disposes of it or any interest therein, then, in favor of a purchaser, the appropriation shall be deemed to have been made by the requirements of the above-cited section and after all requisite consents, if any had been given.
In line with the above provisions, a settled legacy, share or interest includes any legacy, share, or interest to which a person is not entitled in possession at the date of the appropriation, also an annuity, and purchaser means a purchaser for money or money’s worth.
The above provision applies to the deceased whether he died intestate or not, and extends to the property over which a testator exercises a general power of appointment, including the statutory power to dispose of entailed interests, and authorizes the setting apart of a fund to answer an annuity using the income of that fund or otherwise.