In re Denton's Estate

• Jurisdiction: South Africa
• Judge: Shaw J
• Judgment Date: 04 September 1951
• Citation: 1951 (4) SA 582 (N)
• Court: Natal Provincial Division

B Shaw J:

The late Henry Denton a bachelor died in Durban on 10th April 1947 He left a will dated 21st November 1946 in which he nominated the Standard Bank of South Africa Limited as his executor and as administrator of his estate The Bank has duly administered the estate as executor In terms of the will the residue of the estate was C bequeathed to the administrator to be dealt with in accordance with the terms set out therein and to be held upon the trusts specified in the will The testator directed that the residue of his estate in the hands of the administrator should be named 'The Henry Denton South African Universities Trust' The administrator was directed to stand possessed D of the trust upon conditions fully set out in the will These conditions are prefaced by what I think was the main purpose of the testator namely to establish a trust to apply the income thereof at the direction of a committee comprising the Rabbi for the time being of E the Durban United Hebrew Congregation and the Executive Committee for the time being of the Council of the Natal Jewry in maintaining and educating at any university in the Union of South Africa a boy or boys of the Jewish faith who shall not have attained the age of twenty-five years at the date of the trustee's acceptance of him or them for benefit F under the will Then followed certain directions and provisos as follows:

'I direct the Bank to inform the members of the said Committee of this trust immediately after my death, and that all applications by or on behalf of candidates for benefit under the trusts shall be submitted to the Committee provided:

(i)

That the boy or boys shall have been born in the Province of Natal or shall have resided in Natal for a period of ten G (10) years in all.

(ii)

That the parents of such boy or boys and the boys shall be of the Jewish faith.

(iii)

That the total income of the family of any such boy and his parents shall not on an average of three years previous thereto have exceeded four hundred pounds (£400) per annum.

(iv)

That three hundred pounds (£300) per annum only (hereinafter H referred to as 'the candidate's benefit') from the income of my residuary trust fund shall be applied by the Bank for any one boy from their acceptance of him for benefit hereunder for the period of his course which shall not exceed three years in duration. Should any boy not be able to graduate within the three years then the Committee may in its discretion have power to extend the period for another year. The candidate's benefit shall be applied by the Bank for his maintenance educational fees and general expenses for enabling such boy to graduate in any of the said Universities but if at the termination of such boy's course there shall remain any

Shaw J

balance of the candidate's benefit the same shall be paid to such boy for his own use absolutely.

(v)

In order to be eligible and qualified for the benefit all candidates shall comply with the following requirements: -

(a)

The candidates shall be of good character;

(b)

A The candidate shall have attained the standard required to enter any such University in South Africa.

(vi)

If at any time there shall remain after payment of all expenses of administering the trusts hereof any income in the hands of the Bank then I direct that the same, or if at any time there are no boys eligible to benefit hereunder then B that the whole of the income for the time being, shall be invested by the Bank and such investments shall be added to and form part of my residuary trust fund and shall be held by them on the same trusts.'

The present application is for a rule nisi calling upon all persons C interested to show cause why the bequest of the residue should not be declared to have failed and why it should not be carried out cy-prés in the manner set out in the order prayed. The order also embraces a declaration as to the effect of the will in certain other respects but Mr. Henoehsberg who appeared for the administrator did not press for these portions of the order. During the course of argument he also D applied for leave to delete the reference to the failure of the bequest of the residue so that the application as presented was for a declaration that the bequest fell to be carried out cy-prés in the manner set out in the order prayed. The ground of the application was that condition (iii) above set out made it impossible for the testator's E wishes to be fulfilled. In the affidavit filed by Mr. Staveley, the manager of the Durban Branch of the Standard Bank of South Africa Limited, acting for the administrator, it is stated:

'13.

I crave leave to refer to the conditions imposed by the testator subject F to which bursaries might be awarded by the said Committee as set out in the copy of. his will hereto annexed, and in particular to condition (iii) of the proviso to clause 4, which...