Havemann's Assignee v Havemann's Executor

• Jurisdiction: South Africa
• Judge: Solomon CJ, De Villiers JA, Wessels JA and Curlewis JA
• Judgment Date: 04 May 1927
• Hearing Date: 22 April 1927
• Court: Appellate Division

Wessels, J.A.:

This is an appeal from the Natal Provincial Division where an action was instituted by the assignees of D. A. Havemann against the executor of the estate of Havemann's wife, in which it was claimed by the assignee that under a true interpretation of the joint will of the spouses D. A. Havemann was the fiduciary heir of his wife's half of the estate subject to a resolutive condition that if he married again the wife's half should become the property of their children. The executor of Mrs. Havemann contended that the will gave to D. A. Havemann no more than a usufructuary right over her half of the estate, that no disposition had been made of the corpus of her estate and that, therefore, this half should go to her children ab intestato. The matter was presented to the lower court by way of a stated case, and the learned Judges came to the conclusion that the surviving spouse acquired only a usufructuary interest in the testatrix's share of the joint estate and that there was, therefore, an intestacy of the corpus of that share. It is this conclusion which is now

Wessels, J.A.

challenged by the plaintiff in the court below. As there is nothing in the will which can assist us in the interpretation except the two clauses set out below, the issue lies in a small compass, and is confined to the correct interpretation of these clauses. They read as follows: - (a) "We will and desire that the survivor of us shall remain in full possession of our joint estate and effects, movable and immovable, of every nature and kind so ever and wheresoever situated and whether the same be in expectancy, reversion or contingency. (b) In the event of the survivor of us contracting a second marriage, we will and desire that such survivor shall hand over to the children of our marriage one-half of the property of our estate and effects to be shared among them equally, share and share alike."

The appellant contends that upon the true interpretation of these clauses the deceased Mrs. Havemann intended to make her husband her heir in regard to her half share subject to the resolutive condition that he was to transfer to their children his ownership in that share upon his re-marriage. The argument advanced in favour of this contention may be briefly stated thus: -

Inasmuch as the testatrix made a will, we must in law presume that she intended to dispose of all her property by that will and that she had no intention that her share in the community should devolve upon her children ab intestato. By giving her husband the full possession of her share without an disposition over of the corpus in case of his death and by stipulating that only in the case of his remarriage he should hand over the corpus of the share to their children she intended to make him her heir of the half share, subject to the fiducium that if he remarried he would hand over the property left to him to his children. In other words that by our law there is first a presumption where a person makes a will in which he disposes of his property that such person does not wish to die partly testate and partly intestate but intends that the whole of his or her estate should be disposed of by the will. Secondly, when there is in terms a bequest of a usufruct and there is no mention of what is to become of the property after the legatee's death, the law presumes that the testator intended the usufructuary to have the full benefit and disposition of the property.

Where a will is perfectly clear there is no room for any legal, presumptions. The wish of the testator, as clearly and fully

Wessels, J.A.

expressed in the will, must be given effect to Gordon's Bay Estates v Smuts (1923, A.D., per JUTA, J.A., at p. 165) ). When, however, the language of the will read as a whole is not clear, the Court must have recourse to the legal presumptions accepted by our law in dealing with the interpretation of wills, and the older and more constant these presumptions are, the greater their force. There is ample authority in the Civil and in the Roman-Dutch law to support both these propositions of law, and as they are both extremely...