Aronson v Estate Hart and Others 2

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Greenberg JA, Schreiner JA, Van Den Heever JA, and Hoexter JA
• Judgment Date: 12 December 1949
• Citation: 1950 (1) SA 539 (A)
• Hearing Date: 05 October 1949
• Court: Appellate Division

Aronson v Estate Hart and Others 2
1950 (1) SA 539 (A)

1950 (1) SA p539

Citation	1950 (1) SA 539 (A)
Court	Appellate Division
Judge	Watermeyer CJ, Greenberg JA, Schreiner JA, Van Den Heever JA, and Hoexter JA
Heard	October 5, 1949
Judgment	December 12, 1949

Flynote : Sleutelwoorde

Will — Construction — Beneficiary marrying 'out of Jewish faith' or 'forsaking the Jewish faith' — Whether such condition void for uncertainty — Whether such condition amounts to a nude prohibition.

Headnote : Kopnota

A condition in a will providing for a forfeiture of all benefits bequeathed to such beneficiary under the will if he or she 'should marry a person not born in the Jewish faith or forsake the Jewish faith' is not void for uncertainty (SCHREINER, J.A., dissenting), is not against public policy, and is not a nude prohibition.

Wasserzug v Administrators Estate Nathanson (1944 TPD 369) overruled.

The decision in the Natal Provincial Division in Aronson v Estate Hart and Others (1949 (2), S.A.L.R. 789) confirmed.

Case Information

Appeal from a decision in the Natal Provincial Division (SELKE, J. and BROOME, J.). The facts appeat from the judgment of VAN DEN HEEVER, J.A.

W. Pollak, K.C. (with him S. Miller) for the appellant: The clause in question must be regarded pro non scripto because it is a nude prohibition and as such is of no force or effect; no person is named or indicated in the will to benefit in case of forfeiture in In re Estate Nathan (1940 AD 163 at pp. 181 - 2). The passage at p. 183 sets out the terms of the clause. Although most of the authorities deal specifically only with the case of a nude prohibition on alienation, the principle that a nude prohibition is of no force or effect is not restricted to prohibitions on alienation, but applies to all types of prohibitions; cf. Dig. (30.114.14); Grotius (2.20.11); Van Leeuwen, Cens. For. (1.3.7.10); Voet (36.1.27, and McGregor's comment thereon at p. 69); Van der Linden (1.9.8); Sande Restraints (3.1.3, 4, 7, 10, 11); Jewish Colonial Trust Ltd v Estate Nathan (1940 AD at pp. 163, 180); Friedlander v De Aar Municipality (1944 AD at pp. 79, 92 - 3); Van Heerden v Van Heerden's Executors (1909, T.S. at pp. 288, 290); In re Crosbie's Estate (27 S.C. at pp. 50, 52); Ex parte Fraser (10 H.C.G. at pp. 339, 341); Pritchard's Trustee v Estate Pritchard (1912 CPD at pp. 87, 95, 99 - 100); Ex parte Fulton (1912 CPD at pp. 868 - 9); In re Estate Greeve (1913 CPD 539); Fick and Fick v Murray & Co. (1917 TPD at pp. 228 - 9); Ex parte Martens (1928 NPD at pp. 323, 330); Nelson v Nelson's Estate (1932 CPD at pp. 395, 397); Ex parte Baker's Executors (1939 CPD at pp. 287, 292);

1950 (1) SA p540

Ex parte Sieberhagen (1946 CPD at pp. 83, 104 - 7). The clause is void as being contrary to public policy; cf v d. Hoog, Sententien en Prov. Raade No. 176, Van der Linden; Verzameling van Merkwaardige Gewysden (casus 17); Savigny, System (Vol. 3, p. 184). Van den Berg (Vol. 11, con. 241); Goudsmit, Roman Law (para. 62) Windscheid (Vol. 1, para. 94, n.13), Gluck (104 - 106); McKelvey, Leerbuch (para. 171 at p. 190, n.k.) The clause is void for uncertainty; the phrase 'a person not born in the Jewish faith' means 'a person not of the Jewish faith and not born of parents of the Jewish faith' or, alternatively, 'a person not born of parents of the Jewish faith'; in either case the phrase is void for uncertainty - see In re Blaiberg (1940, Ch. at pp. 385, 391 - 2); Clayton v Ramsden (1943, A.C. at pp. 320, 334 - 5, 328 - 9); In re Donn (1944, Ch. at pp. 8, 12 - 13); Wasserzug v Administrators of Estate Nathanson (1944 TPD at pp. 369, 375 - 81, 383, 384 - 7); Re Moss' Trusts (1945 (1), A.E.R. at pp. 207 - 9); Ex parte Estate Hack and Others (1945 TPD at pp. 414, 420 - 1); Ex parte Haworth, N.O. (1946 CPD at pp. 679, 685 - 6); Ex parte Perel (1948 (3), S.A.L.R. at pp. 195 - 6 (G.W.L.)); Equity Trustees Ltd v Moss (1931, Argus L.R. 281 (Australia)); Re Orr (1940, S.A.S.R. 395 (Australia)); Re Landry Estate (1941, 1 W.W.R. (Canada)); Re Solomon (1946, V.L.R. 115 (Australia)); Perpetual Trustee Co., Ltd v Wansey (1946, S.R.N.S.W. 226 (Australia)); Re Cross (1938, V.L.R. 221 (Australia)). The judgment a quo is based on the view that the rule in Clavering v Ellison (11 E.R. 262) was rejected in Grusd, N.O v Grusd (1946 AD 465) and that consequently Wasserzug's case (supra) and the cases following it were wrongly decided; but in Haworth's case (supra) it was held that in Grusd's case (supra) no doubt was thrown on the correctness and applicability in our law of the said rule. Save for discarding any distinction between a suspensive and a resolutive condition, in so far as the requirement of certainty is concerned, the law as stated in Grusd's case (supra, at pp. 465, 474, 476, 478) does not differ materially from the rule in Clavering's case (supra); adopting the language of DAVIS, A.J.A., in Grusd's case (supra), the said phrase is void for uncertainty. The reasoning of the majority in Wasserzug's case (supra) does not break down if the starting point is the criterion suggested by DAVIS, A.J.A., and not the rule in Clavering's case (supra); the adoption of the said rule is not an essential prerequisite to the conclusion that the said phrase is void for uncertainty. In Re Laudry Estate the

1950 (1) SA p541

phrase 'of the Roman Catholic faith' was held void for uncertainty, even though it occurred not in a resolutive, but in a suspensive condition.

F. W. A. Gray, for the respondent administrators, stated that they were content to abide by the judgment of the Court without offering argument.

There was no appearance for the second, third, fourth, fifth and sixth respondents.

A. S. Hathorn, curator-ad-litem of unborn persons (seventh respondent): The breach of the forfeiture clause by a beneficiary is in the result no different from the death of that beneficiary; in either event, that person's share enures for the benefit of the remaining beneficiaries; alternatively, where, as in the present case, a testator has created a valid fideicommissum and has vested the dominium of the estate in an administrator, it is not necessary for the validity of all directions given in the will that each direction should be stated to be, or even considered to be, in the interests of some person - see Robertson v Robertson's Executor (1914 AD 503 at p. 507); Estate Kemp v McDonald's Trustee (1915 AD 491 at pp. 501, 503); Jewish Colonial Trust Ltd v Estate Nathan (1940 AD 163 at pp. 181 - 2). The passage at p. 183 in the last-mentioned case which appears to be in conflict with the immediately foregoing submission is, it is submitted, obiter; cf. Ex parte Estate Burstein (1941 CPD 87 at pp. 89 - 90). Where a testator has vested the dominium in a fiduciary who is given beneficial enjoyment, with a direction that the property may not be sold for a stated period, without indicating someone who can enforce the direction, the Courts have held that such a direction is a nudum praeceptum - see Ex parte Fraser (10 H.C.G 339); In re Estate Greeve (1913 CPD 539); Nelson v Nelson's Estate (1932 CPD 395). Such a direction would be valid if the dominium were vested in an administrator - see Robertson's, Estate Kemp's, Jewish Colonial Trust, and Burstein's cases (all supra); Wein v Wein's Executor (1945, W.L.D. 218 at p. 221); Estate Issroff v Issroff, N.O. (1948 (2), S.A.L.R. 414 at p. 416). A direction such as that given in the present forfeiture clause is valid even though there may not be an indication of the person in whose favour the direction is made, particularly if the right to receive a benefit is a right that may accrue in the future; the forfeiture clause could not operate in consequence of a breach taking place after the determination of the fideicommissum

1950 (1) SA p542

because of the difficulty of disentangling the financial position and because there is no provision for the destination of the disqualified beneficiary's share - see ex parte Sieberhagen and Another (1946 CPD 83 at pp. 104 - 5) - but no difficulty arises if the breach takes place before the particular beneficiary's right accrues, especially if the right is a right to receive capital. As regards a beneficiary receiving income, the same position obtains; no doubt the general right to receive income has accrued, but the right to receive the next payment is a right that will accrue on the due date if the beneficiary is not at that time disqualified. The 'insolvency' cases can be distinguished on the ground that there was no adequate divesting of the insolvent's right by the testator, which accordingly vested in the trustee of his insolvent estate - see Fick and Fick v Murray & Co. (1917 TPD 226 at p. 229); Pritchards' Trustee v Estate Pritchard (1912 CPD 87 at pp. 95, 99 - 100). In any event, if the present forfeiture clause had been based on the insolvency of a beneficiary, the effect of such an insolvency taking place before the determination of the fideicommissum would be to remove that person from the class of persons entitled to benefit under the will. The authorities cited for appellant on the point of nudum praeceptum all deal with true restraints upon alienation and as such cannot apply to the present case. The forfeiture clause is not void for uncertainty; the approach in our law is to give effect to the wishes of the testator, if possible, which, in this respect at least, is different from the approach in English law - cf. Grusd, N.O v Grusd (1946 AD 465 at p. 479) - moreover, the effect in Grusd's case was to disapprove the test applied in England - cf. Ex parte Haworth, N.O. (1946 CPD 679 at p. 685). The principles of the English cases and those which follow them are therefore not a safe guide in South Africa; even so, it was held that the provision in question in each case was not void for uncertainty in In re Evans (1940, Ch. 629 at p. 634)...