Carson and Others NNO v Spencer

• Judge: Schabort AJ
• Judgment Date: 30 November 1981
• Citation: 1982 (2) SA 755 (T)
• Hearing Date: 27 November 1981
• Court: Transvaal Provincial Division

Schabort AJ:

G This judgment relates to a preliminary skirmish in an opposed application for the ejectment of the respondent from a property in Kempton Park.

The applicants are the joint executrices in the estate of the late Jenny Ray Lipman and they bring this application in that capacity. According H to their letters of executorship, which have been annexed to the application, the applicants were appointed as executrices on 5 April 1979. There was a joinder of issue on the merits of the application but the merits were not argued before me. Mr Berg, counsel for the respondent, took the point in limine that the application was fatally defective in law in that the applicants failed to show their locus standi in judicio. He accordingly moved for the dismissal of the application with costs. The basis of his submission was that the applicants, all females, have been referred to in the affidavits as Mrs Carson, Mrs Levitt

Schabort AJ

and Mrs Nowitz. This so counsel contended, indicated that they may be married and subject to their husbands' marital power. The fact that they A were executrices and bringing suit in that capacity did not endow them with full legal capacity to litigate in matters relating to their office. They were, therefore, not absolved from the need to establish their husbands' assistance or that the marital power did not govern the marriage of any of them. Mr Berg placed reliance on what Voet said at B 5.1.15 and he also referred me to Watkins v Fick 1941 WLD 229; Schoeman v Kruger 1944 TPD 80; Matthee v Van Schalkwyk 1949 (2) SA 95 (O); Wilson-Yelverton v Gallymore 1950 (2) SA 26 (D); Neseman and Neseman v Stratford 1957 (2) SA 363 (W).

Mr De Klerk's argument for the applicants proceeded from the following C passage in Meyerowitz The Law and Practice of Administration of Estates 5th ed para 8.8:

'Once a married woman has been appointed executor she is free to carry out all the rights and duties of an executor without the interference or consent of her husband because she functions in a fiduciary capacity which is distinct from any relationship to her husband and it is implied from his original consent to her appointment that she is free to do so. Schoeman v Kruger 1944 TPD 80 (and the authorities referred to therein) D appears to be contrary to the view expressed in regard to a lawsuit by an executrix where the marital power has been excluded. It was said that she requires the assistance of her husband. It is considered that this is not good law where a woman is acting under letters of executorship. Were it otherwise the administration of the estate could be stultified by incapacity of the executrix (through want of her husband's assistance) to perform her statutory duties. The need for assistance is E exhausted, it is submitted, by the consent of the husband of his wife's being appointed executrix.'

Mr De Klerk quoted s 17 of the Administration of Estates Act 66 of 1965 in the context of this passage. It provides as follows:

'17. Letters of executorship may be granted to a woman but shall not, without the consent in writing of her husband, be granted to a married woman, unless the marital power of the husband has been excluded.'

F The locus standi of the applicants was not challenged in the respondent's answering affidavit. No attempt was accordingly made by the applicants to elucidate or rectify any possible defect in this connection. Mr De Klerk has, however, requested me to afford the applicants an opportunity to put the application in order insofar as it G may be necessary and possible to do so should the respondent's contentions be upheld.

It must be mentioned at the outset that there is no...