Barnett v Estate Schereschewske and Others

• Jurisdiction: South Africa
• Judge: van Winsen J and Van Wyk J
• Judgment Date: 06 June 1957
• Citation: 1957 (3) SA 679 (C)
• Court: Cape Provincial Division

Van Winsen, J.:

Applicant is the son of the late Mr. Isaac Barnett, and D his subsequently deceased spouse. Applicant's parents left a joint will, in terms of which he is a beneficiary. His father died on the 25th of September 1936, and his mother on the 29th of July 1955. He has alive a number of brothers and sisters who figure as respondents in the present application. One of his brothers, Louis Barnett, died in 1941, leaving three children surviving him, all of whom are majors and who are E also respondents to this action. After the death of applicant's father a liquidation and distribution account in his estate was filed with the Master in September 1940, and in terms of this account the applicant was awarded a 4/15th share in the estate of his late father, amounting to £4,541 0s. 4d. In May of 1945 the applicant was married to a Miss van F Rensburg out of community of property. Applicant's wife is stated to be not a person of Jewish descent. After the death of applicant's mother in 1955, the executors in the estate of his late father filed an amended first and final liquidation account in which the residue of the estate was divided between heirs other than the applicant, who was awarded nothing at all in this account. The executors took up the attitude that G applicant was not entitled to receive anything from the estate because of the provisions of clause 7 of the will, which reads as follows: -

'We desire to express the wish that in case of our children or grandchildren marrying they should marry their co-religionists, namely Jews of Jewish descent. In case any of our children or grandchildren marry any person who is not a Jew or Jewess of Jewish descent, immediately such marriage takes place such child or grandchildren shall H be considered disinherited by us and shall receive nothing out of our estate.'

Applicant now seeks a declaration from this Court that notwithstanding his marriage to a person not of Jewish descent he is nevertheless entitled to share in the distribution of the said estate. He asks for an alternative declaration that should the Court hold that he is not entitled to share in the estate, his share in the estate will devolve on the intestate heirs of his father, amongst whose number he is included.

Van Winsen J

A number of grounds were advanced by Mr. Duncan for the applicant as to why the Court should make the declaration applied for. His first submission was that clause 7 of the will quoted above is void, since the concept 'any person who is not a Jew or a Jewess of Jewish descent' is so vague and uncertain as to be incapable of being assigned a meaning. A Before enquiring into the validity of Mr. Duncan's contention, it is necessary to determine the correct approach to be adopted in embarking on such an enquiry. It is particularly necessary to do so in this case, since applicant's counsel relied in support of his contentions on certain English authorities and upon an authority in this Court which relied upon such English authorities. Mr. Schock, for certain of the B respondents, on the other hand pointed out that the approach which the South African Courts adopt to such an enquiry differs materially from the English law decisions. An English Court, when it comes to consider whether a vested interest is or is not to be defeated by a condition that is to happen afterwards, the condition on pain of being treated as pro non scripto

'must be such that the Court can see from the beginning precisely and C distinctly upon the happening of what event it was that the preceding vested estate was to determine'.

(Clavering v Ellison, (1859) 7 H.L. 707). This dictum has repeatedly been followed in the English Courts in, to name only a few instances, cases such as Sifton v Sifton, 1938 (3) A.E.R. 435; Re Blaiberg, 1940 D (1) A.E.R. 632; Clayton & Another v Ramsden & Others, 1943 (1) A.E.R. 16. Dealing more specifically with the clause providing that an heir would forfeit her interest under a will if she married 'a person who is not of Jewish parentage and of the Jewish faith' LORD ROMER in his speech in the case of Clayton v Ramsden, supra, remarked at p. 21: -

'That a testator may add this (i.e. include such a clause in his will) E should he so desire is beyond question, but in such a case it behoves him to define with the greatest precision and in the clearest language the events in which the forfeiture of the interest given to the beneficiary is to take place.'

In this Court in the case of Ex parte Haworth, N.O., 1946 CPD 679, HERBSTEIN, A.J. (as he then was), relied upon the above-quoted dictum in F Clavering v Ellison, supra, in coming to the conclusion that the phrase 'a person who is not of English, Scottish, Irish or Welsh descent' was one which was too vague to give effect to. The dictum in Clavering v Ellison was also accepted in the Transvaal Court in the case of Wasserzug v Administrators of Estate Nathanson, 1944 T.P.D. 369.

G Since the decision in Haworth's case, Wasserzug v Administrators of Estate Nathanson has been expressly overruled by the Appeal Court in its decision in Aronson v Estate Hart & Others, 1950 (1) SA 539 (AD), and it has become clear from this decision and subsequent cases that the approach of our Courts to the question of when a condition of disinherison is void for vagueness is not the same as that of the H English Courts. While it is plain that our Courts do not set so exacting a standard for the validity of such a condition, it is not equally plain from the various dicta in the Appellate Division on the subject, what exactly is the approach adopted by the Courts.

In Grusd, N.O v Grusd, 1946 AD 465, the Court was dealing with an appeal from the decision of the Witwatersrand Local Division in

Van Winsen J

which, following the case of Sifton v Sifton, supra, the Court a quo had concluded that a condition attached to the right of enjoyment of a usufructuary interest to the effect that the usufructuary's married child was to 'continue to reside with' her, must be taken to be pro non A scripto. After referring to the dictum in Clavering v Ellison, supra, and pointing out that this dictum had not been adopted by the Scottish Courts (see Wemyss v Wemyss' Trustees, 58 Sc. L.R. 116), DAVIS, A.J.A., said that it was the Roman and the Roman-Dutch law that must govern the matter 'and not English technical rules'. After referring to a number of B instances in the Pandects, where requests were conditioned by reference to the obligation of the legatee to remain at a particular place, or to remain with children, or to remain with the surviving wife of the testator, the Court rejected the approach that a condition is to be treated as void for vagueness

'unless the Court can without full knowledge of the facts answer every conundrum that the ingenuity of any one may think out. . . . Certainly C if it can be shown that questions may arise on the construction of the provision to which, no matter what the facts may be, no answer is possible, then it can well be that the provision is invalid, e.g. 'of Jewish parentage'.'

With reference to the varying sets of facts which might arise and to which it might become necessary to apply the condition, his Lordship remarked: -

'The truth is that no-one can visualise beforehand every D case which may arise with its infinite combinations and permutations of circumstances, but if a concrete case with its attendant circumstances is to be before the Court it can always, bearing in mind the incidence of the onus, come to a conclusion in regard thereto.'

The learned Judge then proceeds to formulate what he regards as the E correct approach to the construction of the condition in question, and says: -

'What is really necessary for the efficacy of any portion of a will is that the conception which the testator had in his mind as expressed by him in that will should be one which is of sufficient clarity that no case can arise to which even with the full knowledge of all the facts an answer is impossible.'

As an example of a condition to which even with a full knowledge of the F facts an answer is impossible, he instances the condition of bequeathing something to the testator's daughter 'if she marries a gentleman'. Such a conception is, his Lordship remarks, too vague to be intelligible, and is void for uncertainty. The learned Judge came to the conclusion that Sifton's case, supra, was not in accordance with our law, and applying the test which he had formulated to the phrase 'continue to reside' he G concluded that he could conceive of no case in which, with the full knowledge of the facts, the Court could not be able to give an answer to the question of whether this condition had been proved to have been broken or not. This judgment was concurred in by WATERMEYER, C.J., and GREENBERG, J.A., and has to my knowledge never been departed from nor questioned by the Appeal Court.

H In Aronson's case, supra, the condition was that the legatee would forfeit benefits under the will if he or she 'should marry a person not born in the Jewish faith, or forsake the Jewish faith'. The Appeal Court held, SCHREINER, J.A., dissenting, that this phrase was not void for uncertainty. In this case too, the correct approach in interpreting such a condition was dealt with by GREENBERG, J.A.. SCHREINER, J.A., and VAN DEN HEEVER, J.A., referring to the extract

Van Winsen J

from the speech of LORD ROMER in Clayton v Ramsden, supra, quoted above, said that

'A less exacting test should be applied by us to the words now under consideration than that applied by the House of Lords in the passage cited from the speech of LORD ROMER. We should not ask for 'the greatest precision' or 'the clearest language', but should be satisfied if, from the words used, it is reasonably clear what the testatrix had in mind. A It should be added that this difference of approach detracts...