Hartley NO v the Master

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Innes CJ, Solomon JA, Maasdorp JA, Juta JA and JER De Villiers AJA
• Judgment Date: 27 May 1921
• Citation: 1921 AD 403
• Hearing Date: 10 March 1921

Innes, C. J.:

This appeal raises the question of the nature and extent of the Master's statutory powers in respect of an application by a surviving spouse to take over at an appraised valuation the property of the deceased. Under the mutual will of herself and her late husband, executed on 16th June, 1913, Mrs. Hartley and her five minor children are the sole joint heirs of his estate; she is also executrix testamentary as well as usufructuary and administratrix of the childrens' portions during minority. In the event of re-marriage she is bound either to deposit the inheritances of the minors in the Guardian Chamber or give security therefor to the satisfaction of the Master. The assets of the joint estate which include two farms are valued at about £6,000; the liabilities at about £3,000. The movables are insufficient to pay the debts, so that it would be necessary in the ordinary course to sell some or

Innes, C.J.

all of the land. She is desirous, however, to take over all the assets and assume liability for the debts, undertaking to pay the portions due to the minors, as ascertained by the liquidation account, upon their majority or marriage respectively. The Master objects to the proposed arrangement, and these proceedings, unsuccessful in the first instance before the Provincial Division, are brought for the purpose' of compelling him to consent.

In his official report the Master sets out carefully and in detail the grounds for his refusal. They fall under two heads. He considers that the proposed arrangement would be prejudicial to the interests of the minors within the meaning of sec. 51 of the Administration of Estates Act 1913, and he is of opinion that under sec. 54 of the same statute they are entitled to have their paternal portions secured even when the surviving spouse is usufructuary and administratrix, and when the will purports to exempt her from such obligation. The reasons under the second head were those most elaborated in the report, and were upheld by the trial Court. But in the view which I take of the matter, it is unnecessary to express any opinion upon them, because sec, 54 of the Act has no application to the present controversy. That clause entitled a surviving spouse as natural guardian of a minor child to receive from the executor and retain on behalf of such child any sum of money due to the latter from the estate of the deceased spouse. The right as given is subject to two conditions: that the will contains nothing to the contrary, and that the inheritance so to be received is secured by bond to the satisfaction of the Master. The arrangement thus contemplated is one by which after the assets have been reduced into possession and liquidated the guardian may obtain not on his own behalf, but "for and on behalf of the minor" the share of the nett liquidated proceeds due to such minor. The parent on giving security is to be allowed to administer the child's inheritance for the child's benefit. The transaction to which we are asked to compel the Master's consent is not that at all. Mrs. Hartley desires to take over all the assets, to transfer the land into her own name, and to become personally responsible for the debts of the estate and the due payment of the paternal portions. The process suggested is itself a mode of liquidation, not a disposal of the nett proceeds resulting from liquidation. The survivor in fact wishes to wind up the estate by uitkoop. Now, as pointed, out by MASON, J., in Ex parte Robinson (1917, J.P.D. 578), sec. 51 deals

Innes, C.J.

with uitkoop, and the terms of that clause must govern the rights of the parties. These terms are as follows: "The Master may, if it appear to him that no person interested will be prejudiced thereby, and if no provision be made in the will of the deceased to the contrary, authorise the executor, instead of realising the property of the...