Ex parte Administrators Estate Sandler

• Jurisdiction: South Africa
• Judge: Diemont J and Theron J
• Judgment Date: 30 September 1976
• Citation: 1976 (4) SA 930 (C)
• Hearing Date: 02 September 1976
• Court: Cape Provincial Division

Diemont, J.:

The question which arises in this case in whether one of the testator's descendants has become disinherited by reason of the fact that her father married out of the Jewish faith.

The testator, Mordecai Sandler, executed a will on 21 May 1957 in which he bequeathed the whole of his estate upon trust on condition that the entire income from his estate should be paid to his wife, Haidee Rebecah Sandler, until her death or remarriage. He provided further as follows:

H 'As and from the date of remarriage of my said wife, or as and from the date of her death, whichever shall first occur, I will and direct that my administrators shall pay the entire income from my estate in equal shares to the children issue of the marriage between myself and my said wife, directing that upon the death of each child of my said marriage his or her share shall devolve upon and be said to his, her or their child or children per stirpes by representation and upon each grandchild's death to their children per stirpes by representation, and so on until such time as I have no further direct descendants. Should such an eventuality occur, subject, however, to the following special condition, namely:

Diemont J

That in the event of any of my descendants who may be entitled to any benefits under this my will marrying out of the Hebrew faith I direct that such descendant, whether male or female, be forthwith excluded from any further benefits to which he, she or they may have been entitled in terms of this my will, and further, that his or her descendants shall in turn also be excluded from receiving any such benefits.

I direct specifically that at no time shall any of my A descendants receive any portion whatsoever of the capital or corpus of my estate.

In the penultimate paragraph in the will it was provided that, in the event of direct descendants ceasing to exist or having become disinherited, the trust should be determined and the entire capital and interest paid to the Jewish National Fund, Israel.

The testator and his wife Rebecah had five children, Leah, B Bertie, Harry, David and Isaac. On 30 November 1962 the youngest son Isaac married Shirley Lehmensich, a non-Jewess in the magistrate's court. A daughter Lauren was born of this marriage on 2 April 1964 and two years later Lauren and her mother, Shirley, were converted to the Jewish faith and Shirley re-married Isaac according to the Jewish faith in the Gardens C Synagogue on 28 September 1966.

Isaac Sandler died in 1967 and his father, the testator, died three years later on 8 February 1970. Shirley Sandler married one Chona Satz and on 15 August 1972 Lauren Sandler was, by order of the children's court for the district of the Cape, adopted by Chona Satz and his wife, Shirley Satz.

After the death of the testator's widow, Haidee Rebecah D Sandler, on 15 March 1975 the question arose as to whether the minor child, Lauren Satz, was entitled to any benefits in terms of the will.

The administrators accordingly approached the Court for the appointment of a curator-ad-litem to represent the minor issue E and unborn issue. They alleged in the papers before the Court that the assets consist of certain shares and a savings account totalling R140 962,55 in value and they asked for and obtained a rule nisi calling on all interested persons to show cause why Lauren Satz and her issue should not be disinherited.

On the return of the rule both Mr. Meyerowitz, who appeared with Mr. Shapiro for the administrators, and Mr. Odes, the F curator-ad-litem, contended that the rule should be made absolute and Lauren Satz disinherited by reason of her father's first marriage out of the faith. Mr. Hofmeyer for Lauren Satz argued that the forfeiture clause had not come into operation and she was entitled to benefit under the testator's will.

The Master filed a report in which he indicated that he did not accept the submission put forward by the curator-ad-litem in G his report to the Court, namely that the special condition in the will became operative on 30 November 1962, the date of the civil marriage of the son, Isaac. The Master said:

'... This submission appears to be based solely on the use of the word 'forthwith' in the testator's will. He however fails to mention the word following which in my humble opinion make a H different interpretation of this word possible. The will reads

'..., be forthwith excluded from any further benefits...