Ex parte Schroder, NO

• Jurisdiction: South Africa
• Citation: 1956 (2) SA 148 (E)

Ex parte Schroder, NO
1956 (2) SA 148 (E)

1956 (2) SA p148

Citation	1956 (2) SA 148 (E)
Court	Eastern Districts Local Division
Judge	Price JP and Jennett J
Heard	February 28, 1956
Judgment	March 3, 1956

Flynote : Sleutelwoorde D

Will — Construction — Vesting — Joint will — Survivor appointed sole heir — Joint estate to be divided after death of survivor — Son bequeathed trading station at which he had carried on business — Son acquiring vested right on death of first dying.

Headnote : Kopnota

Under a joint will executed on 11th February, 1931, the testators had appointed the survivor sole and universal heir or heiress of all the E estate . . . 'subject however to the provision hereinafter made, as to the division of our joint estate at the death of the survivor of us'. They had further directed that on the death of the survivor the joint estate 'should devolve upon and be divided amongst the children born of our marriage . . . to our son M, we give and bequeath the Trading Station . . . and to the rest of our children . . . we give and bequeath the remainder of our estates, to be divided equally amongst them, share F and share alike. Should one or more of these, the rest of our children, predecease either of us without leaving issue, we direct that his or her or either share or shares shall be divided equally amongst all the surviving children born of our marriage none excepted'. During his lifetime the testator had carried on the business as a trader at the trading station with M as an assistant. When he retired from business he let the trading station to M who, after the testator's death, had effected certain improvements thereon. When the testator died in February, 1941, the testatrix leased the premises to M and after his G death in November, 1954, she leased the premises to M's widow and his son. The testatrix always regarded the trading station as belonging to M. In an application to determine certain questions arising out of the administration of the joint estate of the testating parties,

Held, that M had acquired a vested right transmissible to his heirs in the trading station on the death of the first dying. H

Case Information

Application to construe a will. The facts appear from the reasons for judgment.

K. D. Graham, Q.C. (with him G. N. Dock), for the applicant. The will is in quite a natural form, see Muller v Muller, 1935 CPD 452 at p. 457. But there were two omissions: (a) a failure to provide for the contingency of Martin predeceasing the survivor and (b) a failure to provide for the contingency of the predecease of a child leaving

1956 (2) SA p149

issue. There was massing. See Steyn on Wills, 2nd ed., at pp. 178, 194. Applicant contends (1) that applicant was a fiduciary and that on the predecease of the fideicommissary, Martin, the bequest failed and there was no vesting in Martin. See Steyn at p. 314; Wehr v Ostroff, 1954 (4) SA 457 (W) A at p. 461; Muller v Muller, supra, at pp. 457, 460; Ex parte Kops, 1947 (1) SA 155 (O) at p. 161; Wehr v Est. Wehr, 1922 CPD 411 at p. 413; van Dyk v van Dyk's Executor, 7 S.C. 194 at p. 196, and (2) that the bequest to Martin having failed, it falls back into the residue of the estate. See Mosse v Est. Ebden, 1913 CPD 567 at p. 577; Blight v Hartnoll, L.R. 23 Ch. D. 218 at p. 220, and (3) that it must be implied that if a child should die leaving issue, that B issue succeeds its parent by representation. See Steyn at p. 275; Grotius, Dutch Jurisprudence, 2.20.5; van Leeuwen, Roman-Dutch Law 3.8.12. The case of Reese v Registrar of Deeds, 1938 CPD 459, is distinguishable.

L. H. Copeland, Q.C., for the major children of the son Martin. The canons of construction in a will of this kind are summarised in Smith v Smith's Estate, 1949 (1) SA 534 (AD) at pp. 543 - 544. But in every case on vesting, the question is one of the testator's intention. There can be an immediate vesting when the intervening life interest is that of fiduciary. Samaradiwakara v De Saram, 1911 AD 465, is an example. D On the other hand, there can be no immediate vesting despite the fact that the intervening interest is of a usufructuary character. See Smith's case, supra, and Ex parte Isham's Estate, 1954 (2) SA 511 (C). That the survivor was appointed sole universal heiress is not a conclusive factor negativing an immediate vesting in the ultimate E legatees. See Strydom v Strydom's Trustee, 11 S.C. 425; Estate Basson v Estate Lombard, 1915 CPD 807. Martin's legacy of the trading station was taken out of the joint estate. The survivor's interest is that of a usufructuary. That the joint estate is to be divided after the death of the survivor does not prevent an immediate vesting. See Gordon's Bay Estate v Smuts, 1923 AD 165 at p. 167. 'Devolve' in this context means to be distributed. In deciding on vesting, the Court F should not look to see where the dominium is after the death of the testator. That enquiry is irrelevant in a modern will because an heir is a residuary legatee. See Greenberg and Others v Estate Greenberg, 1955 (3) SA 361 (AD) at pp. 364 - 365. The correct approach is for the Court to find, from the language used, the intention of the testator. The Court may then, if necessary, proceed to fix the appropriate legal G labels to the dispositions. See Maree's Estate v Redlinghuis, 1943 AD 547 at p. 551. Here the intention is clear and no legal label need be fixed. Muller v Muller, 1935 CPD 452, is distinguishable. Here there is no dominating clause. Whatever is said in clause 2 of the will, H is subject to what follows in clause 4. Voet 36.1.36 and 36.2.2 gives the...