Ex parte Schroder, NO

• Jurisdiction: South Africa
• Judge: Price JP and Jennett J
• Judgment Date: 03 March 1956
• Citation: 1956 (2) SA 148 (E)
• Hearing Date: 28 February 1956
• Court: Eastern Districts Local Division

F Price, J.P.:

The deceased, who died on the 5th February, 1941, and his surviving widow were married in community of property. They made a joint will on the 11th February, 1931. There are eight children of the marriage, of whom two are deceased and six are majors.

Certain questions arising out of the administration of the joint estate G of the deceased testator, H. W. Schroder, and his surviving widow, F. W. Schroder, come up for decision. To resolve these questions it is necessary to interpret the mutual will of the 11th February, 1931.

The questions are:

1.

Whether the deceased son, Martin, of the testators obtained a H vested interest in a certain trading station known as the 'Upper Xongora Trading Station' on the death of the testator, H. W. Schroder, and if not;

2.

Whether the surviving spouse is now entitled to the said trading station as her absolute property, or whether it becomes part of the residue of the estate and devolves on the legatees mentioned in clause 4 of the will.

3.

Whether the children of the deceased Martin and of another

Price JP

deceased son, Georg, are entitled to the shares of their deceased fathers, Martin and Georg, under the said clause 4 of the will.

4.

Whether the surviving widow of the testator may appoint an executor and administrator of the joint estate in place of the deceased Martin who was nominated as such.

A The two relevant clauses of the will are clauses 2 and 4, which read as follows:

'2. We appoint the survivor of us to be the sole and universal heir or heiress of all the estate and effects, whether movable or immovable, and wherever the same may be and whether the same may be in possession, reversion, remainder or expectancy, nothing whatsoever excepted, which B may be left by the first dying of us at his or her death, subject, however, to the provision hereinafter, made, as to the division of our joint estate at the death of the survivor of us.

4. On the death of the survivor of us, we direct that our joint estate shall devolve upon and be divided amongst the children born of our marriage, as follows: To our son Martin Paul Richard Schroder, born of our marriage, we give and bequeath the Trading Station known as 'The Upper Xongora Trading Station' situate in the Umtate District; and to the rest of our children, born of our marriage, we give and bequeath the C remainder of our estates, to be divided equally amongst them, share and share alike. Should one or more of these, the rest of our children, predecease either of us without leaving issue, we direct that his or her or either share or shares shall be divided equally amongst all the surviving children born of our marriage none excepted.'

I have come to the conclusion that Martin, the deceased son of the testators, acquired a vested right, transmissible to his heirs, in the trading station on the death of the first dying, on a proper D interpretation of the terms of the two clauses set out above.

I do not find it necessary to...