Ex parte Estate Cauvin

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson J and Van Wyk AJ
• Judgment Date: 10 December 1953
• Citation: 1954 (2) SA 144 (C)
• Hearing Date: 09 November 1953
• Court: Cape Provincial Division

Ogilvie Thompson, J.:

In this matter a declaration is sought from the Court concerning two legacies bequeathed in her will by the late Caroline Emily Cauvin (hereinafter referred to as the testatrix), who G died at Cape Town on 15th December 1951. On the petition of the executors testamentary, this Court on 21st August, 1953 granted a rule nisi which was served on all interested parties; and, on the return day of the rule, the Court heard argument.

In her will dated 18th April, 1947 the testatrix, after first leaving various legacies to friends and relatives, then proceeded in clause 6 to bequeath legacies to fourteen named charitable institutions. That H portion of clause 6 of the will which is material to the present proceedings reads as follows:

'6. I bequeath the following legacies to charitable institutions, and direct that in each case the receipt of the treasurer or other proper officer of such institution respectively shall be a good and sufficient discharge to my executors:

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Ogilvie Thompson J

(f)

To the Convalescent Nursing Home, Roehampton, England, the sum of five hundred pounds (£500 0s. 0d.).

(h)

To the Cripples Hospital and College at Alton, Hampshire, England, the sum of five hundred pounds (£500 0s. 0d.).'

On 26th January, 1949 the testatrix executed a codicil to her will. This codicil, after altering certain bequests made in the will, concluded with the words 'In all other respects I desire my last will and A testament to remain unaltered'.

It will be convenient to deal first with the second of the abovementioned legacies.

From the evidence placed before the Court it appears that no institution bearing the exact name of 'The Cripples Hospital and College' has at any B time existed at Alton, Hampshire, England. As at the date of the will there was, however, in existence at Alton aforesaid a charitable foundation called 'The Lord Mayor Treloar Cripples Hospital and College'. It appears that, pursuant to a trust deed dated 24th June, 1907, a Hospital and College was established at Alton in 1908 under the name 'The Lord Mayor Treloar Cripples Home and College'. This name was C later changed to 'The Lord Mayor Treloar Cripples Hospital and College'. No other foundation of a similar name or character has at any material date existed at Alton. The Hospital and College known as 'The Lord Mayor Treloar Cripples Hospital and College' were administered as a single foundation till 1948.

There can be no doubt whatever that, when she made her will in 1947, the testatrix intended in clause 6 (h) thereof to benefit 'The Lord Mayor D Treloar Cripples Hospital and College' All the circumstances point that way, quite apart from the fact that the designation given in the will (viz. 'The Cripples Hospital and College at Alton') is in itself a not inept description of that Institution, situate at Alton, whose full title at that date was 'The Lord Mayor Treloar Cripples Hospital and College'.

E The only remaining question, accordingly, is whether this bequest is affected by the events which occurred subsequent to the execution of the will.

Consequent upon the passing in England of the National Health Service Act 1946 (9 and 10 Geo. 6 Ch. 81), there came about on the 'appointed day' - viz. 5th July, 1948 - a vesting in the Minister of Health F of all premises and equipment used solely for the purposes of a voluntary hospital and of the funds thereof (vide secs. 6 (1) and 7 (4) of the Act) and also a division in the management of the Hospital and of the College and of the premises and funds pertaining thereto. The details are set out in an affidavit by Lord Burnham jurat 20th October, 1953 and filed of record, and there is no need to recapitulate them here. It is sufficient to say that since 5th July, 1948 the hospital has G been administered by the Lord Mayor Treloar Orthopaedic Hospital Management Committee (vide sec. 11 (3) and the Third Schedule of the Act). while the College has continued to be administered by the trustees of the trust deed. These two bodies, however, work in the closest cooperation; and indeed to-day all the trustees, save one, are also members of the hospital management committee. The position since the 'appointed day' is thus summarised in Lord Burnham's affidavit:

H 'Save in the sphere of finance and the ownership of property, no change whatever took place as a result of the National Health Service Act. The Hospital and College continued to function alongside each other at Alton. The same...