Standard Bank of South Africa Ltd, NO v Betts Brown and Others

• Jurisdiction: South Africa
• Judge: Holmes J and Milne J
• Judgment Date: 30 April 1958
• Citation: 1958 (3) SA 713 (N)
• Court: Natal Provincial Division

Holmes et Milne, JJ.:

At the instance of the applicant in its capacity F as executor testamentary in the estate of the late Andrew Betts Brown, a rule nisi was issued calling upon all persons interested to shew cause why an order should not be granted:

(a)

Declaring that the trust created in the will of the late Andrew Betts Brown dated the 26th August, 1952, and the codicils thereto dated the 4th May, 1953, and the 6th May, 1953, is a G valid and duly constituted trust;

(b)

Declaring that the administrators of the estate of the said late Andrew Betts Brown is entitled to pay to the charity trustees appointed in the said will the trust income and capital referred to in the said will to be dealt with by the said charity trustees in terms thereof;

(c)

H That the costs of the applicant be paid as between attorney and client out of the said estate.

The testator who died on 16th December, 1953, had no children but was survived by his wife who has appeared to shew cause against the confirmation of the rule. The testator made a will dated 26th August,

Holmes et Milne JJ

1952, in which, after appointing the applicant as executor and administrator and making certain preliminary bequests, bequeathed the whole of the residue of his estate, wherever situated,

'unto my administrators, who shall invest the same upon good and sufficient security as hereinafter provided and shall:

(a)

pay one-half of the income derived from such investment unto my A wife Dagmar Ina Wilhelmina Betts Brown (nee Smith) until her death or remarriage;

(b)

pay the remaining one-half of the said income to the said Andrew Betts Brown and Percy Hylton Pilliner (hereinafter called my charity trustees) and after the death or remarriage of my said wife, shall pay the whole of the said income to the aforesaid charity trustees who shall hold the same on valid charitable B trusts for the assistance and encouragement of bona fide inventors of British nationality who through lack of financial resources are unable to complete and market their inventions and (subject to such overriding charitable trust and with a view thereto) the provisions set out in the schedule hereto shall take effect subject only to such modifications, if any, as may be necessary to keep the same within the limits of a valid charitable trust.

I direct that the charity hereby constituted shall be known as the 'Betts Brown Trust Fund' and that there shall always be not less than C two trustees, and that the power of appointing a new trustee or trustees of the said charity shall be vested in Brown Bros. & Co. Limited, Rosebank Ironworks, Edinburgh, acting through their board of directors in the usual way.

I give to my charity trustees the following powers exercisable from time to time as they may think fit, that is to say:

(a)

Power during the period of twenty-one years from my death to accumulate any income by adding the same to the capital of my residuary estate or any part thereof.

(b)

Power by deed to provide for the constitution, management and D carrying on of the charity and in particular.

(i)

To appoint the original trustees (if any) and the original governors of the charity and to provide for the manner in which trustees and governors respectively may be appointed or removed or may retire.

(ii)

To make or provide for the making of rules dealing with any matters whatsoever and in particular rules regulating:

(1)

The meetings of trustees and governors respectively;

(2)

E The appointment, employment, remuneration, and removal of officers and servants respectively;

(3)

The duties and powers of trustees, governors, officers and servants respectively;

(4)

The qualifications of persons benefiting by the charity and the mode, terms and conditions on which benefits are to be provided; and

(5)

The appointment of patrons and the privileges of subscribers to F the charity.

(iii)

To provide for the making of additions to and alterations and rescissions of any rule or rules from time to time in force.

(c)

Power to promote a company (not paying any dividend to its members) to manage and carry on any charity created under the powers of this my will.

(d)

Power to apply to any court or authority for any order or scheme G and in particular, any order or scheme establishing or regulating any charity or enabling any land to be retained unsold or to be acquired.'

After directing how the residue was to be invested, the will provided that if any beneficiary should, without the consent in writing of his executors or administrators, institute any action or other proceedings H in which the validity of the will or any codicil thereto is sought to be impeached, such beneficiary should absolutely forfeit his or her respective interest. This was followed by 'The schedule above referred to' which is in the following terms:

'My wishes and directions to be carried into effect as far as practicable.

1. I want to benefit by the charity only persons of pure British stock and descent and in particular I exclude nationals of Eire and persons of Asiatic Oriental and Jewish descent. I want especially to assist young inventors.

Holmes et Milne JJ

2. I wish the work of the charity to take the form of grants of money out of income.

3. My charity trustees, before making a grant, may arrange that a proportion (not exceeding ten per cent) of the gross profits arising from the exploitation or marketing of the invention be added to the capital of the Betts Brown Trust Fund, but such fund is not to be liable for any payment other than the grant and in particular is not to be involved in any joint venture or partnership in the exploitation of any invention.

4. My charity trustees may out of income use moneys for the protection A or defence of any invention (by legal process or otherwise) in which the trust is interested as aforesaid.

5. Income not required for the encouragement of invention may be used for research work whether or not scientific.

6. Capital shall only be expended in very special circumstances, e.g. where delay would prejudice an inventor or a case particularly deserves assistance.

7. I suggest that the trustees adopt an advisory board consisting of men B of proved business and technical ability to act on a voluntary basis such as:

(a)

One manager...