Ex parte Estate Isham

• Jurisdiction: South Africa
• Judge: De Villiers JP and Herbstein J
• Judgment Date: 19 March 1954
• Citation: 1954 (2) SA 511 (C)
• Hearing Date: 04 March 1954
• Court: Cape Provincial Division

De Villiers, J.P.:

This is the return day of a rule nisi granted to the trustees under the will of the late Henry Euseby Murray Isham, calling A upon the curator-ad-litem and all persons concerned to show cause, if any, to this Court on the 5th day of March, 1954, why this Court shall not make an order:

(a)

Declaring that by the terms of the will of the late Henry Euseby Murray Isham, dated 22nd May, 1929, the residue of the estate of the said Henry Euseby Murray Isham is vested in his brother Vere Arthur Richard Isham, subject to the terms of the said will; or alternatively

(b)

determining the true and proper interpretation to be given to B the words 'legal heirs' in sub-para. (d) of para. 3 of the said will of Henry Euseby Murray Isham; and

(c)

authorising the payment of the costs of these proceedings out of the residuary estate of the said Henry Euseby Murray Isham.

From the petition it would appear that the testator died unmarried at Prieska on the 5th March, 1930, leaving his last will dated the 22nd May, 1929. The will itself is a short document comprising six C paragraphs, of which the effect of para. 3 falls to be determined by this Court. None of the remaining paragraphs are relevant to the interpretation of para. 3, nor do they throw any light upon the intention of the testator as expressed in the paragraph in question. In this paragraph, the testator bequeathed the whole of his estate to his D executors in trust, to realise the same, and, after the payment of debts, to invest the residue, and stand possessed of the investments and income in trust:

'(a)

To pay to Miss Ruby Staniland, whose address is care of the Westminster Bank. St. James Street, London, a three-quarters share of the entire income of the whole of my estate for and during her lifetime.

(b)

To pay to my sister, Mrs. Elizabeth Mary Victoria Ogilvie. a E one-quarter share of the entire income of the whole of my estate for and during her lifetime.

(c)

Upon the death of the first dying of the aforesaid two beneficiaries, to pay the share of the income which she was receiving to the survivor of them for and during her lifetime.

(d)

Upon the death of both the aforesaid beneficiaries to pay the whole capital of my said estate to my brother. Captain Vere Arthur F Richard Isham, M.C., of Hill Close, Sandy Lane, Cobham, Surrey, or, failing him, to his legal heirs.'

Miss Ruby Staniland, the usufructuary of three-quarters of the income in terms of para. 3 (a), died on the 22nd of June, 1930. Since her death, the whole of the income of the estate has been paid to deceased's G sister, mentioned in para. 3 (b). She is still alive, and has thus for twenty-four years been enjoying the income of the estate.

At the time of his death, the testator owned assets in South Africa consisting of a farm at Prieska, and, according to the fourth and final liquidation and distribution account, there was a balance of five hundred and fifty-eight pounds seven shillings and tenpence (£558 7s. 10d.) available for distribution. The testator also owned certain further assets in Ceylon.

H The petition goes on to state that throughout all this period, doubts have existed as to whether para. 3 of the testator's will vests dominium over the residue of the testator's estate in his brother, Vere Arthur Richard Isham, or whether vesting is postponed until the death of the last dying of the two beneficiaries of the income. Should vesting be

De Villiers JP

held to be postponed, further doubts exist as to the meaning of the phrase 'or failing him, to his legal heirs', where it appears in para. 3 (d) of the will.

The testator's brother, Vere Isham, is desirous of making provision for A the future of his children. He is married and has two children, Ian Vere Gyles Isham - born on the 17th July, 1923 - and Norman Murray Crawford Isham - born on the 28th January, 1930. He is desirous, accordingly, of...