Grusd NO v Grusd

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Greenberg JA and Davis AJA
• Judgment Date: 30 March 1946
• Citation: 1946 AD 465
• Hearing Date: 11 December 1945
• Court: Appellate Division

Davis, A.J.A.:

The position in this matter, as it was presented before MILLIN, J., in the Witwatersrand Local Division, is thus fully stated by him:

Davis, A.J.A.

"Samuel Herman died in February, 1939, leaving a will dated the 10th February, 1938. He was survived by his wife, Rachel Leah Herman, now Grusd, the petitioner, and by two children, a son, Niel Eli Herman, born in 1925, and a daughter, Sheila Jean Herman, born in 1929. The testator appointed as executors and administrators of his estate his wife and brother, David Isaac Herman. They completed their duties as executors in 1941 and now stand possessed of the estate as administrators. In that capacity they are made the first respondents to the petition. The second respondents are the two minors, rep I resented by Mr. Maisels as curator-ad-litem. The petition, which is for a declaration of rights under the will, arises from the fact that the petitioner remarried on the 21st March, 1945.

The testator left the residue of his estate in equal shares to his two children, subject to a life usufruct in favour of his wife. She was also, appointed guardian to the minors. The gift of the usufruct, in clause 5 (b) of the will, is followed by these words: 'Provided that if at any time after my death my wife shall remarry her income from my estate shall be limited to the sum of £30 per month reckoned one month from the date of such remarriage. Provided further that if my children while being unmarried continue to reside with my wife after her marriage she shall continue to enjoy the usufruct aforesaid'.

It was a condition of the usufruct that petitioner should, out of the income, provide for the maintenance and education of. the children, and, if the income proved to be insufficient for the proper maintenance of the petitioner and the children, authority was given to the administrators to draw on the capital for that purpose.

At the time of the petitioners remarriage, her son, now nearly, twenty years of age, was on active service with the South African Naval Forces, which he joined in January, 1945. Up to the date of his enlistment he lived with his mother at 'Stephanie', a private hotel in Johannesburg. Upon her remarriage she went to live with her husband in a flat. Both she and the son state that when he is discharged from the Service he will join the household of his mother and stepfather and continue to live there. With regard to the daughter, the evidence is that at the date of her mother's remarriage and for some years before that she was at boarding school in Johannesburg, but spent her holidays

Davis, A.J.A.

with her mother at 'Stephanie'. The intention is that as long as she remains a boarder at this school she will spend her holidays with her mother and stepfather in their flat and that from the beginning of next year, when she is to become a day scholar, she will live there permanently.

It is contended on behalf of the respondents that the petitioner forfeited her right to the usufruct and became entitled to an income of not more than £30 per month by the bare effect of her remarriage. The argument is that the forfeiture upon remarriage is absolute and unconditional because it is made subject to a condition which is void for uncertainty. The reference is to the words 'continue to reside with my wife after her remarriage' in what is called the second proviso. Alternatively to this, it is contended that on no conceivable meaning of the words 'continue to reside with my wife' (assuming them to have some certain and precise, meaning) could either child be regarded as residing with the petitioner at and after her remarriage.

For the petitioner it was admitted that the condition requires the continued residence of both children with the mother, and it was said that on a true construction of the words both in fact continued to reside with her, although one was in the naval forces either at the coast or on the high seas, while the other lived at a boarding school for girls. I was not furnished by Mr. Rathouse who argued this with any definition of the words 'reside with' which could bring about such a result. Alternatively, however, he contended that if the words are too vague to be given any definite meaning, the forfeiture clause as it whole is vitiated and what is absolute and unconditional is the gift of the usufruct and not the provision for forfeiture on remarriage.

Mr. Pollak for the first respondents, the curator-ad-litem, agreeing with him, sought to divide clause 5 (b) into three distinct I parts, each producing a separate effect. First, the petitioner is vested with the usufruct. Next, she is divested of this right if she remarries. Then the divesting is suspended if on the remarriage the children continue to reside with her. This last is regarded as a condition subsequent to a forfeiture which has already operated. The opposing view is that there are not three processes but two only, a vesting of the usufruct, and a divesting of it in certain circumstances; and that the divesting process is one and indivisible, its effect being that, if the widow remarries

Davis, A.J.A.

while the children are unmarried, the forfeiture is incurred not by remarriage simpliciter but by remarriage coupled with the circumstance that the children do not continue to reside with her after remarriage. If this is the correct view of clause 5 (b), it is obvious that the result of Mr. Pollak's convincing argument that the words 'continue to reside with' are too vague to have any meaning attached to them must be to assist the petitioner and not those who contend that she has forfeited her usufruct."

The learned Judge found, following the case of Sifton v Sifton (1938, A.C. 656), that the condition as to residence was void for uncertainty and, as he also found the forfeiture clause to be one and indivisible, he declared "that the petitioner had not forfeited the life usufruct bequeathed to her in clause 5 (b) of the will". As he did so on the ground that the whole forfeiture clause must be taken pro non scripto, it would appear that, according to his judgment, the mother would take the usufruct absolutely for her lifetime. Against this decision, the curator ad litem for the children now appeals, by consent, direct to this Court: the mother supports the judgment given in the Court a quo.

It is unnecessary to consider whether, if the condition in regard to the residence of the children were void for uncertainty, the view of the learned Judge that the whole of the resolutive condition, including that portion relating to remarriage, would fall away, is correct or not, for I am satisfied that the condition is not void on this account.

Quite apart from the Roman and Roman-Dutch authorities to which I shall refer in a moment, I find difficulty in the decision in Sifton v Sifton (supra). That case, it may be remarked, actually decided no more than that, in a defeasance clause (a resolutive condition), the words "to continue to reside in Canada" are, standing alone, and in reference to the beneficiary, so vague as to be void. It consequently might perhaps not be necessary to enter into an examination of that case and of its origin: for here (1) the condition does not concern residence in a country, but residence with a person; (2) it is not the beneficiary herself who must fulfil the condition of residing; (3) the condition is consequently not potestative, but mixed; and (4) the words of the condition do not stand alone; they are conjoined with, and explained by, the duty of the mother to maintain and educate the children. But the decision seems to have been regarded in several cases in provincial...