Ex Parte Kops and Others

• Jurisdiction: South Africa
• Judge: De Beer J
• Judgment Date: 06 February 1947
• Citation: 1947 (1) SA 155 (O)
• Hearing Date: 23 January 1947
• Court: Orange Free State Provincial Division

De Beer, J.:

The three petitioners are major children of the late Alexander Wande and the late Alice Wande (born Donnell). In terms of the joint will of their late parents dated December, 1928, one-half of the fixed property of the joint estate was bequeathed to the petitioners subject to a usufruct in favour of the survivor, and, in so far as it affects the present application, subject also to the following further conditions: -

'Subject to the condition that it shall not be mortgaged or otherwise encumbered during their lifetime, and that on death of either of them their said share shall devolve upon and become the property of his or her legal descendants of the first degree, i.e. his or her children in equal shares and in such event the surviving parent of such child or children, shall until his or her remarriage or death enjoy the full usufruct thereof.

Should any of our said children die without leaving any issue then his or her share shall devolve upon the legal descendants of the first degree of the remaining heirs in equal shares, subject to the usufruct of the surviving spouse (if any) of such deceased heir, until his or her death or remarriage, whichever event first occurs. In respect of any improvements effected by any heir on the fixed property prior to my death, such heir shall be entitled to be compensated therefor by the remaining heirs on the basis of a sworn valuation of the said improvements at date of my death; the amount of compensation in any event not to exceed the sum of one thousand pounds (£1,000).

Any condition in respect of usufruct in favour of our said heirs or their spouses as provided in the last two paragraphs shall not become of force until such time as the usufruct in favour of my wife, the said Alice Margaret Wande, shall have lapsed by her death or remarriage.'

The first of these conditions was at some subsequent date deleted by the testators. The other undivided half-share was bequeathed to the survivor subject to the following conditions: -

De Beer J

'(a)

That the said property shall upon her death be left to and devolve upon children as aforesaid and on the conditions mentioned in the preceding paragraph;

(b)

That in the event of the remarriage of my said wife, the said one half (1/2) share of fixed property left to her shall become her sole and absolute property, and no conditions or restrictions will thereafter attach thereto'.

On the death of the petitioners' father they obtained transfer of the undivided one-half share of the fixed property, the other half being transferred to their mother; the latter died in 1945 without having remarried and the petitioners are therefore also now entitled to this undivided half-share.

The first question raised in the application now before me is whether the remaining conditions constitute a direct or a fideicommissary substitution. The Master in his reports doubts the correctness of the petitioners' contention to the effect that the words used constitute a direct substitution and he refers the Court to several recent decisions which may undoubtedly be read as lending substantial support to the doubt raised by him.

In deciding whether in a given case a fideicommissum has been created, various rules of construction evolved in the course of time and purporting to be of assistance, are presumably to be applied. In the remarks which follow I have borrowed largely from my judgment in Ex parte Johanna Visser, N.O., and Others (O.P.D., July, 1945 - unreported). I was referred to numerous decided cases wherein the application of these rules and of certain presumptions were dealt with, and after a careful perusal and analysis of these decisions it clearly emerges, on comparison with each other, that an appreciable percentage of them must necessarily have been wrongly decided, and that one is reluctantly but inevitably forced to the conclusion that our case law on this subject is...