Grusd NO v Grusd

• Jurisdiction: South Africa
• Citation: 1946 AD 465

Grusd NO Appellant v Grusd Respondent
1946 AD 465

1946 AD p465

Citation	1946 AD 465
Court	Appellate Division
Judge	Watermeyer CJ, Greenberg JA and Davis AJA
Heard	December 11, 1945
Judgment	March 30, 1946

Flynote : Sleutelwoorde

Will — Condition — Whether void for uncertainty — Condition requiring that certain persons "continue to reside" with beneficiary — Meaning of condition.

Headnote : Kopnota

A condition attached to a bequest that certain children should "continue to reside with" the beneficiary is not void for uncertainty.

A testator bequeathed his estate to his two children subject to a usufruct in favour of his, widow. After bequeathing the usufruct, the testator said: "Provided

1946 AD p466

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. . . . 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." It appeared that the testator's widow had remarried. The testator's son, aged 20 years, was on active service, but he regarded his mother's home as his home and intended upon his discharge to continue to live with her. The other child was a girl of 16 at boarding school. She spent the holidays with her mother and intended on leaving school to live with her mother. The Court a quo found that the condition as to residence was void for uncertainty; that the forfeiture clause was one and indivisible; that it should be regarded as pro non scripto and that consequently the widow took the usufruct absolutely for her lifetime.

Held, on appeal, that the condition was not void for uncertainty.

Held, further, that under the circumstances both the son and the daughter continued to reside with their mother and that consequently the testator's widow had not forfeited the life usufruct bequeathed to her.

The case of Sifton v Sifton (1938, A.C. 656), dissented from; Ritchken's Executors v Ritchken (1944, W.L.D. 17), overruled.

The decision of the Witwatersrand Local Division in Grusd v Grusd confirmed but for different reasons.

Case Information

Appeal from a decision of the Witwatersrand Local Division (MILLIN, J.).

The facts appear from the judgment of DAVIS, A.J.A.

I. A. Maisels as curator-ad-litem to the minor children: The, interpretation placed by the Court a quo on clause 5 (b) of the will is erroneous. See Perrin v Morgan (1943, A.C. at 406); Cuming v Cuming (1945 AD at 206-7). For a single composite condition to be imposed upon the fulfilment of which a forfeiture is to become operative, the words must be such as to create a condition which is "one and indivisible" (Clayton v Ramsden (1943, A.C. at 330). The first proviso imports a condition to the detriment of Mrs. Grusd; the second supplies a condition operating to her benefit; this indicates that they should be read separately as two distinct provisions (Egham & Staines Electricity Co., Ltd. v Egham Urban District Council (1944, 1 A.E.R. at 109) ). In re Wilkinson (1926, Ch.D. at 849), cited by the Judge a quo does not support his reasoning. In any event, if there are two alternative readings of the will, the Court should adopt that version which will leave the greater part of it in force (Villet's Estate v Villet's Estate (1939 CPD 152, 155) ). The words of the second sentence of clause 5 (b) of the will are too vague to be enforceable (Ritchken's Executor v Ritchken (1924, W.L.D. 17); Fillingham v Bromley (1923, Turn.

1946 AD p467

& R. 530; 37 E.R. 1204); Clavering v Ellison (7 H.L.C. 707); In re Viscount Exmouth (1883, 23 Ch. D. 158); In re Sandbroek (1912, 2 Ch. 471); Sifton v Sifton (1938, A.C. 656); Jarman on Wills (7th ed., p. 1518); Ex parte Wright's Estate (1940 CPD 353 at 356-7) ). Alternatively, the whole of clause 5 is valid. The Court will make every endeavour to give effect to the expressed intention of the testator (Cuming v Cuming (supra, at 205-6); Ex parte Baker's Executors (1939 CPD 287); Olivier v Olivier (24 S.C. 283); Jarman on Wills (supra, p. 428). It is in the, light of clause 5, read as a whole, that the word "reside" must be interpreted. See Wasserzug v Administrators of Estate Nathanson (1944 TPD 373); Sutcliffe v Richardson (L.R. 13 Eq. 606); Walcot v Botfield (1854, Kay 534; 69 E.R. 226); Dunne v Dunne (1855, 7 de G.M. & G., 207 44 E.R. 81); In re Moir (1884, 25 Ch. D. 605); Wynne v Fletcher (1857, Beav. 430 53 E.R. 423) May v May (44 L.T. 412); In re Wright (1907, 1 Ch. D. 231) Wemyss v Wemyss' Trustee (1921 S.C. 30); In re Boulter (1922, 1 Ch. D. 75); In re Wilkinson (1926, Ch. D. 842); Re Talbot-Ponsonby's Estate (1937, 4 A.E.R. 309); Sifton v Sifton (1938, A.C. at 675); Act 31 of 1941, sec. 42. Neither of the children "continue to reside with" their motherland therefore there has been a forfeiture upon her re-marriage Dunlevie v Harrington (1828, 1 Menzies 292); Ford v Hart (L.R. 9 C.P. at 275); Ford v Drew (1879, 5 CPD 59); Cowie v Pretoria Municipality (1911,T.P.D at 632-3). The daughter resides at school during term time and not with her mother (Beedle v Bowley (1893, 12 S.C. at 403) ); a minor does not, by operation of law, reside where his parents reside (Beale, vol. 1, secs. 30-2). "My children" does not mean "my children or either of them", but "both my children" (cf. In re McGillivray's Will (1943, W.L.D. at 36) ). The usufruct having ended, the children are entitled to the whole income of the estate. There is ample authority in Roman and Roman-Dutch Law for the proposition that conditions which are illegal, impossible or opposed to good morals are to be taken as not written; but the authorities appear to indicate that an uncertain condition does not fall into the category. See Digest, 28.7.14, 28.7.9, 28.7.1, 28.7.27, 35.1.3 (Scotts' translation, vol. 5, pp. 261, 260, 257, 263, and vol. 7, p. 300); Paulus, Sententiae, 3.4 (Scott's translation, vol. 1, p. 288); Institutes, 2.14.10 (see Moyle's note (2nd. ed.), p. 269; Sandars' note, p. 196) (but Groenewegen (Sampson's translation, pp. 68 and 69) holds the contrary view, as does Grotius in 2.18.20, which is that the whole

1946 AD p468

institution is bad) Huber, 2.16.30-34 (Gane's translation, vol. 1, p. 172); Schorer, Notes to Grotius (Note 136) van der Keessel, Select Theses (Thesis 310), Voet, 28.7.9. deals with uncertain conditions which he plats on the same basis as impossible conditions, but these uncertain conditions seem to be those which are so defective that they are impossible of legal interpretation; see also Voet, 28.7.6., Pothier on the Pandects (vol. 13, paras. 219, 220); Domat, Civil Law (part 2, bk. III, secs. 18, 19; Cushing's edition of Strahan's translation, pp. 382-3); Averanius, I x.21, II xxiv. 3, I x.48 (dealing with resolutive and suspensive conditions. The test of uncertainty in a will, as stated in Digest, 50.17.73.3, was cited with approval in Ex parte Baker's Executors (1939 CPD at 289); see also Jarman on Wills (7th ed., vol. 2, pp. 1439, 1443-4); Nathan's Common Law (vol. 3, para. 1835).

O. Rathouse, K.C., for respondent: The two provisos together form one condition subsequent to the bequest, and the second proviso limits and is part of the condition imposed by the first proviso. There is no special virtue in the phrase "provided that" which is ordinarily used to introduce a limitation or a qualification to what has gone before. See Words and Phrases Judicially Defined (vol. 4 at p. 412, sub nom. "Provided always" and at p. 413 sub nom. "Provided that"); In re Lovell: Sparks v Southall (1 920, 1 Ch.D. 122); In re Wilkinson: Page v Public Trustee (1926, Ch. D. 842). In cases of doubt, that construction will be given which will be least burdensome to the beneficiary (Jarman on Wills (7th ed., vol. 2, p. 1436); Steyn on Wills (p. 74). Where a void condition is attached to a bequest the bequest will stand and the condition will fail in the case of a condition subsequent, but both the bequest and the condition will fail in the case of a condition precedent (Halsbury (Hailsham ed., vol. 34, para. 140) A similar rule will be applied where a condition is attached to a forfeiture; for the difference between a condition precedent and a condition subsequent, see Halsbury (Hailsham ed., vol. 34, para. 139); Jarman on Wills (7th ed., vol. 2, p. 1444). The learned Judge erred in holding the second proviso, to be bad for uncertainty upon Fillingham v Bromley (37 E.R. 1204)and Clavering v Ellison (11 E.R. 282). The principle there laid down is to be applied only to cases where the condition is one which causes a forfeiture. The rule in Clavering's case (supra), as originally laid down and since followed, has always been stated in terms which indicate that its applicability is limited to forfeiture clauses. For English cases, see Fillingham v Bromley (37 E.R.

1946 AD p469

1204); Jeffreys v Jeffreys (84 L.T.R. 417) In re Reich (40 J.L.R. 398); Sifton v Sifton (1938, A.C. 670, 675). For South African cases, see Ritchken's Executors v Ritchken (1924, W.L.D. 21); Wasserzug v Administrators Est. Nathanson (1944 TPD 372-3, 381-2, 390). The foundation of the rule lies in the fact that penal or forfeiture clauses are to be strictly construed. See Wasserzug's case (supra, at p. 381). It is not of general application. See Ex parte Baker's Executors (1939 CPD 291); see also in In re Wilkinson (1926, Ch.D. 842). Once the rule in Clavering's case (supra) does not apply, the basis for holding the second proviso to be uncertain falls away. Had the Court in Sifton's case (supra) not applied the rule in Clavering's case, the words in question in Sifton's case would not have been held to be uncertain. See, e.g., Dunne v Dunne (44 E.R. 81); Wynne v Fletcher (53 E.R. 423); Re TalbotPonsonby (1937, 4 A.E.R. 309); Wemyss v Wemyss (1921, Session cases 30 at 36); Mott v Issott (1907, 1 Ch. 231)...