Dowdle's Estate v Dowdle and Others

• Jurisdiction: South Africa

Dowdle's Estate v Dowdle and Others
1947 (3) SA 340 (T)

1947 (3) SA p340

Citation	1947 (3) SA 340 (T)
Court	Transvaal Provincial Division
Judge	Dowling AJ
Heard	May 13-14, 16, 1947; May 21, 1947
Judgment	July 3, 1947

Flynote : Sleutelwoorde

Administration of estates — Executor — Repudiation by of contract of sale — Onus — Duty of executor to residuary heirs — Administration called into question — Locus standi of residuary heir — Contract of sale in writing — Property in Transvaal — Rectification of contract — When competent — Proclamation 8 of 1902, section 30 - Sale repudiated by executors — Portion of purchase price paid — Estate being administered as on insolvency — Purchaser in occupation — Right of purchaser — Principal and agent — Agent mixing his money with that of principal — Interdict sought — When justified.

Headnote : Kopnota

The onus lies upon the executors of an estate who repudiate a sale alleged to have taken place during the lifetime of the deceased and a residuary heir, on the ground that the price is below the true value of the properties and such properties are not sufficiently identified in terms of section 30 of Proclamation 8 of 1902 (T.).

Before there can be a rectification of a contract of sale of fixed property, there must be a written contract which, on the face of it, complies with the requirements of section 30 of Proclamation 8 of 1902.

The first respondent, a residuary heir, had claimed transfer of certain properties of which he was in occupation, alleged to have been purchased by him from the deceased and in respect of which he had paid off a portion of the purchase price. The executors were, however, on the instructions of the creditors administering the estate as on insolvency.

Held, whatever the duties of the executors might be by reason of their fiduciary position, that these did not include a legal duty to concede occupation and possession of the property simply because the first respondent was a residuary heir and in possession or occupation under an invalid deed of sale.

Held, further, that the residuary heir had, apart from any right of occupation, locus standi to question the administration of the estate.

Held, further, that if the estate was insolvent, any amount payable by way of restitution in respect of the purchase price could only become due and payable on proper proof of a concurrent claim as in insolvency.

First respondent, a residuary heir, had been appointed by the executors (the applicants) as their representative in managing certain properties belonging to the deceased estate. In an application, in which the executors inter alia claimed (1) an interdict restraining the first respondent from operating on a banking account which was in the name of the properties, and (2) an order calling upon the first respondent to hand over all the relevant books and documents relating to the said banking account, it was alleged that he had never been authorised to open and operate such account. First respondent admitted opening the account, but stated that it was for his own purposes

1947 (3) SA p341

and as his private account, He stated that as the estate had been unable to meet the current cash requirements for wages, he had deposited to this account considerable sums from his own resources to finance the properties until income became available. He stated, further, that he had been duly authorised by the executors to make disbursements on behalf of the estate, and that he had made such in excess of the income derived from the estate.

Held, that the rule enunciated in Story, Equity Jurisprudence (Vol. I, section 468), namely, that an agent must clearly show what part of the property belonged to him, and if he was not able to do so, it was treated as that of his principal, could not justify an interdict to protect what was merely a claim in personam for payment of a debt.

Case Information

Return day of a rule nisi operating as an interim interdict. The facts appear from the judgment.

C. J. Claassen, for the applicants: Respondent as manager was under a duty to account and has been given every reasonable opportunity to do so. He is not entitled to conduct a banking account in the name of the estate - it is an agent's duty to keep his principal's money separate from his own: Story, Equity Jurisprudence (vol. I, sec. 468); Langermann v Carper (1905, T.H. 251 at p. 265). Respondent's deeds of sale are invalid. See Estate du Toit v Coronation Syndicate Ltd. and Others (1929 AD 219 at p. 224); Lugtenborg v Nichols (1936 TPD 76); Coronel v Kaufmann (1920 TPD 207). Applicants' bare right of ownership entitles them to eject respondent, Graham v Ridley (1931 TPD 476). Respondent's claim to rectification is groundless as a nullity cannot be rectified. Weinerlein v Goch's Buildings Ltd. (1925 AD 282). Respondent has further lost his rights by cession, see Wessels, Contract (vol. I, sec. 1695). In any event the insolvency of the estate makes it necessary to realise the assets. The executors have the powers of trustees in insolvency. Bosman v Registrar of Deeds (1942 CPD 302); Estate Sher v Joachim (1928, W.L.D. 243). All untransferred immovable property remains estate property. Harris v Buissinne's Trustee (2 M. 105); Uys v Sam Friedman Ltd. (1934 OPD 80 at pp. 86, 88). Applicants are entitled to rely in justification of their repudiation upon grounds other than those originally advanced. Berman & Berzack v Finlay Holt & Co., Ltd. (1932 TPD 142).

G. S. Findlay, K.C., for the first respondent: A demand for an account was necessary before respondent's liability arose. In addition a reasonable time after demand must be allowed for compliance therewith.

P. F. O'Hagan, on the same side on the remaining claims:

1947 (3) SA p342

Applicants are not entitled to object to respondent using a particular name for his own banking account. Even if the deeds of sale are invalid respondent should not be ejected. He is the residuary heir and vis-a-vis him it is the executors' duty to act bona fide and reasonably. Estate van der Lith v Conradie and Others (20 S.C. 241); Hiddingh v de Villiers and Others (5 S.C. 298); Major's Estate v de Jager (1944 TPD 96); Weyer v Estate Weyer (1939 AD 126). No reason has been shown why the executors should recover possession from the heir. Alternatively the executors may not recover possession in the absence of a tender to restore the consideration paid by respondent. Lebedina v Schechter and Haskell (1931, W.L.D. 247). In any event a party may only recover what he has parted with under such an inchoate agreement if the other party is unwilling or unable to perform his part. Wilken v Kohler (1913 AD 135); Kennedy & Kennedy v Lanyon (1923 TPD 284); Mattheus v Stratford and Another (1946 TPD 498). Respondent must be given an opportunity at least of seeking rectification. As to the cession, see White v Collins (1914, W.L.D. 35). As to costs de bonis propriis, these should be ordered where the action, even though bona fide, is unreasonable. Appel v Estate Ginsberg (1927 TPD 636).

Claassen, in reply.

Cur adv vult.

Postea (July 3rd).

Judgment

Dowling, A.J.:

Applicants in their capacity as executors in. the estate of the late A. F. Dowdle seek confirmation in certain respects of a rule granted ex parte by NESER, J., calling upon the first respondent to show cause, if any, why:

'(I) He shall not be ordered to deliver to the applicants or their nominee all the movable assets, including papers, documents and books belonging to the estate of the late Allen Francis Dowdle that may be in his possession or under his control, as also all cash belonging to the said estate presently in his possession. (II) He shall not be interdicted from coming on to the Malelane Estates without the permission of the applicants. (III) He shall not be ejected from the buildings on the Malelane Estates, and why he shall not be ordered to hand over the keys of all these buildings to the applicants or their nominees. (IV) He shall not be interdicted from operating on the banking account with the Barclays Bank, branch Nelspruit, which is in the name of the Malelane Estates, and why he shall not hand over to the applicants all the relevant books and documents relating to the said

1947 (3) SA p343

Dowling AJ

banking account. (V) He shall not be ordered to pay the costs of this application.'

The rule was directed to operate as an interim interdict in terms of paras. 2 and 4.

A further rule was granted calling upon the third respondent, Barclays Bank, to show cause, if any, why they shall not stop permitting the first respondent from operating on the banking account of the Malelane Estates at their Nelspruit branch, and why the applicants shall not be recognised as the only persons entitled to operate the said account.

No costs were sought against the second and third respondents unless either of them opposed. There was no appearance for either the second or third respondents.

A. F. Dowdle, whom I shall hereafter refer to as the deceased, died on the 5th April, 1946, leaving a will, dated 4th April, 1946, which provided:

'I wish and desire that my dear friend Girlie Behr shall have an income of £1,000 per year (one thousand pounds per year), payable monthly at £83 6s. 8d. commencing from the month of my death, and it is my special will and desire that my executors see to it that this sum is paid to her out of my estate and if the income or profits are insufficient, then out of the capital. On her demise I desire the whole residue of my estate to devolve on my brother, Bernard William Dowdle, at Malelane to be excluded specifically from any community of property existing between him and his wife, or should he predecease Miss Behr, then his son is to be heir. Should the income from my estate exceed £1,000 per annum, the excess is to be kept in reserve, to be used during leaner periods for...