Dison NO and Others v Hoffmann and Others NNO

• Jurisdiction: South Africa
• Citation: 1979 (4) SA 1004 (A)

Dison NO and Others v Hoffmann and Others NNO
1979 (4) SA 1004 (A)

1979 (4) SA p1004

Citation	1979 (4) SA 1004 (A)
Court	Appellate Division
Judge	Jansen JA, Trollip JA, Kotzé JA, Diemont JA and Viljoen AJA
Heard	March 15, 1979
Judgment	September 27, 1979

Flynote : Sleutelwoorde

B Will — Construction of — Vesting — Income from estate bequeathed to testator's wife, children and others — Residue of estate bequeathed to testator's children and "capital sum forming such residue shall be paid and distributed among them upon the death of their mother or on" 10 January 1950 whichever shall be later date — If child should die leaving C lawful issue such issue "shall succeed to him or her by representation" in respect of capital and of income bequests — If no lawful issue left, such deceased child's share to devolve on testator's other children — Testator's eldest son dying without issue before death of his mother, the testator's widow — Will construed as intending vesting of children's rights to capital to take place on death of testator's widow or 10 January D 1950, whichever was the later — Also that children of testator not entitled to surplus income of estate until that date — Testator not intending a substitution of heirs to take place on his death — Estate of testator's eldest son not entitled to participate in distribution of capital of residue and accumulation of income on the death of the testator's widow.

E Will — Construction — Generally — Surrounding circumstances — Such can be used in aid of interpretation — Such taken into account where it would otherwise be impossible to view the will in its proper perspective — Facts that testator at time of execution of will was of advanced years, F critically ill and not expected to survive also taken into account.

Headnote : Kopnota

In clause 2 (b) of his will the testator made provision for the payment to his wife "in priority to all other payments to be made under this will... out of the income of my estate the sum of 300 per mensem... for and during her lifetime free of income tax of any kind present of future which income G tax shall be paid out of the balance of the income of my estate..." Clause 3 provided, subject to clause 2, that "my son C shall be paid a sum of 300 per annum payable monthly... free of succession duty and of income tax of any kind present of future until the date whereon he shall become entitled to receive payment in terms of clause 6 of this will of the whole capital of the inheritance bequeathed to him thereunder. If he shall die before he H shall become entitled to receive payment of such capital but shall leave lawful issue him surviving then such lawful issue shall be substituted for him in respect of such annual payment which shall continue to be paid to such lawful issue until that date but if there be no such issue then such annual payments shall cease". In clause 4 of the will the testator made provision, subject to the priority "of the aforegoing legacies", for a sum of 1 500 perannum for four years to be paid and distributed among American and Latvian relatives and among charitable institutions as selected by his executors, who were also given the power, if the remainder of the income of the estate was sufficient, and if his wife and children so decided, to apply such income in the relief or assistance of any relative of his or his wife's. The fund created by clause 4 was to be called the "Rose Kramer Fund". Clause 5 of the will provided as follows: "The said payment of 300 per mensem bequeathed

1979 (4) SA p1005

to my wife as aforesaid shall if she shall die before the 10th day of January 1960 - so far as the then available income shall suffice for the purpose - devolve upon and be divided equally among the four children of A my marriage to her and shall then continue to be paid to them until the occurrence of that date." The clause further provided that capital might not be used to make up any deficiency in the income of the estate to pay the said 300 per month to the testator's wife. Clause 6 provided as follows: "I bequeath the rest and residue of the estate and effects which I may leave at the date of my death movable or immovable and wheresoever situate whether in possession reversion remainder expectancy or contingency nothing excepted to my said children in equal shares and the B capital sum forming such residue shall be paid and distributed among them upon the date of the death of their mother or on the 10th day of January 1960 whichever shall be the later date. If any children of mine shall die leaving lawful issue such lawful issue shall succeed to him or her by representation in respect of the bequest made to him or her in this or in the last preceding clause and if there be no such lawful issue then subject as aforementioned the share of such child in such bequest shall C devolve upon my other child or children and if any of them be then dead leaving lawful issue such lawful issue shall take the place of such deceased child by representation in respect of such bequest, provided that the widow of any son of mine who shall die leaving no lawful issue shall receive and be paid while she is alive and remains his widow one-half of the income to which he would have been entitled under this will in respect of the said bequests had he not died such payments to continue subject as D aforesaid until the date fixed for the payment of the capital of the inheritance to which he would have been entitled under this clause 6 had he survived until that date." In clause 7 of the will the testator made provision for the executors advancing to his son C portion of the capital of his inheritance should he wish to establish himself in a business other than that of the Federal Wine & Brandy Co Ltd (which the testator had formed and in which he held 2 000 shares). Alternatively special provision E was made in this clause for the employment of C by Federal at a suitable salary and in addition C was to receive a part of the total dividend which Federal might from time to time declare. Clause 9 of the will provided for the executors' powers of realising the estate and continuing any business in which the testator was concerned and clause 9 ended as follows: "It shall be competent for my executors to borrow money on the pledge mortgage F or security of the assets of my estate for the payment of any estate or succession duties that may become payable by or out of my estate and if need be to use and apply income for that purpose subject always to the right of those legatees who may be entitled to income in terms of clauses 2, 3 and 4 of this will." Other provisions in the will dealt with the investment and re-investment of moneys in the estate, and indeminty from liability of the executors, the resolution of disputes which might arise G and the protection against creditors of the moneys payable to his wife, children and grandchildren. In an addendum to the will, signed on the same day as the will, the testator, inter alia, amended the date 10 January 1960, wherever it occurred in the will, to 10 January 1950. The will and addendum were executed on 27 August 1943 and the testator died on 4 September 1943. His widow, Rose Kramer, died in May 1978. The testator left three sons, W, H and C, and a daughter P. W died in 1972 leaving no issue. W's widow later remarried. P had two children and C was unmarried. H Since the death of W doubts had arisen in the minds of the administrators, firstly, as to whether the testator's children obtained vested rights to the capital of the residue and, secondly, as to whether they were entitled to payment of the surplus income on the residue notwithstanding that the testator's widow was then alive. They accordingly applied to a Provincial Division for a declaratory order in order to determine the proper administration in regard to the rights of the testator's children, including the rights of the deceased W. H filed an affidavit setting out the surrounding circumstances and factual background relating to the testator's will, from which it appeared, inter alia, that, at the time of the execution of the will, he was critically ill and not expected to survive. The

1979 (4) SA p1006

testator was 68 years old at that time. W and H were at that time able to maintain themselves comfortably from their earnings from their investments A and incomes from Federal Wine & Brandy Co Ltd. The testator at that time was at all times conscious of the need to conserve the family assets and with that in mind selected the fixed date (10 January 1950) as a time when it was reasonable to suppose that Federal Wine & Brandy Co Ltd would be on its feet financially. The Provincial Division found that, on a correct interpretation of the will, the residue of the estate vested absolutely in the testator's children upon the death of the testator and that all the B children, including the estate of W, were entitled to all the income in excess of that required to pay the widow and other special income beneficiaries up to th e date of distribution, and upon such date to the capital. In an appeal by the curator ad litem to the minor and unborn issre of H, P and C and certain other minors and unborn issue, and by P, C and others, the appellants contended that the vesting in the residual heirs would occur only on the second date (ie the date of the death of the testator's widow or 10 January 1950) and that the survival contemplated in C the substitution in clause 6 of the will was a survival to that date, and that the will aimed at an accumulation of the residue of the income until the time for payment out of the accumulated residue. The respondents, the executor in the estate of Wand the executors in the testator's estate, contended, inter alia, that the will merely provided for a postponement of the enjoyment of the...