Estate Maree v Redelinghuis

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 22 May 1943
• Citation: 1943 AD 547
• Hearing Date: 14 May 1943
• Court: Appellate Division

De Wet, C.J.:

In this case I agree with the conclusion arrived at by my brother CENTLIVRES and with the order proposed by him. In interpreting a will it seems to me that the correct method of approach is, in the first place, to attempt to discover from the language used, the intention of the testators. Having discovered this intention one may then, if necessary, proceed to affix the appropriate legal labels to the dispositions of the testators. The difficulties in the present case, resulting in the applicant's successful

Centlivres, J.A.

contention being raised for the first time in this Court, were in my opinion caused by making the contrary approach, i.e by trying in the first place to fit the dispositions of the testators into certain legal concepts, of the nature and existence of which the testators were presumably wholly ignorant.

The testators bequeathed certain landed property to their six children and then proceeded to affix two conditions, namely: that they should have no right to their shares till after the death of both testators and that if any of the children were to die unmarried his or her share should revert to the remaining ones. Seeing that these two conditions are joined together it seems to me to be a reasonable interpretation that in both cases the testators contemplated the point of time when the survivor should die and that in the second condition the testators intended to make provision for the contingency of a child dying unmarried before the death of the survivor. The other considerations set out by my brother CENTLIVRES support this construction.

Having come to the conclusion that the provision of the will in question relates only to a substitution if a child should die unmarried before the death of the survivor and the unmarried son Johannes having survived both his parents, it really becomes unnecessary to determine whether the label of a direct substitution or of a conditional fidei commissary substitution should be applied to the provision in question.

Judgment

Centlivres, J.A.:

This is an appeal from an order granted by the Cape Provincial Division on a special case concerning a joint will made by testators who were married in community of property.

The will, which was executed in 1887, appointed the survivor and the children of the testators as universal heirs of all the property of the first-dying, and further provided that the survivor should remain in undisturbed possession of the joint estate during his or her lifetime. The clauses of the will which are of importance are as follows: -

"Wij testateuren vermaken, de een vierde (¼) aandeel van de plaats 'Rietvlei' en ons een derde (⅓) aandeel van de plaats 'Voorzorg', aan onze kinderen met name Daniel Jacobus, Catharina Johanna, Susanna Johanna, Gesina Maria, Johanna Jacomina Cecilia Maria en Johannes Petrus, doch zullen geen regt hebben op gemelde aandeelen, dan na ons testateuren beide

Centlivres, J.A.

dood, en indien eenig van onze kinderen ongehuwd komen te overladen zal zyn of haar aandeel in voormelde plaatsen op de overgeblevene te komen vervallen."

"Het is verder ons expresse wil en begeerte dat onzen woonhuis nu door ons bewoond, na den dood der langstlevenden het eigendom van onzen zoon Johannes Petrus alleenlijk moeten wezen, daar hlj geen aanspraak zal hebben op de andere gebouwen, dan alleenlijk de molen in gelijken deel met de anderen erfgenaamen."

The testatrix predeceased the testator, who adiated and Accepted benefits under the will. He died without having made any further will.

At the time of the execution of the will the ages of the testators' children ranged from 40 to 30, the youngest being Johannes Petrus Maree (to whom I shall refer as...