In re Estate Grayson

• Jurisdiction: South Africa
• Judge: De Villiers JA, Tindall AJA and Feetham AJA
• Judgment Date: 13 October 1936
• Citation: 1937 AD 96
• Hearing Date: 02 October 1936
• Court: Appellate Division

De Villiers, J.A.:

The subject matter of this appeal is the property of the late Ernest Nowell Grayson, whose last will is in court. The testator bequeaths all his property to certain executors "to be held in trust by them." As to one half of the property, he imposes a definite trust on the executors, namely, to pay it to the testator's daughters at a certain future date. As to the other half the testator desires the Executors to "build up a trust fund which may be of some small service to the community, especially of South-West Africa." I shall refer to this half of the testator's property as the "Trust Fund." The peculiarity of the will is that it imposes no binding or obligatory trust upon the executors. The testator does indeed mention some vague ideals such as "character and principle, education and training of both sexes, frugality and simplicity of life, temperance and sobriety of all kinds, thoughtful and unostentatious work, generosity and service, refinement." He does not, however, impose on his executors any obligation to apply the Trust Fund or any portion of it, towards the realisation of any of these ideals. Indeed, as is pointed out by Mr. Hoexter in his well-conceived argument, the testator expressly disavows all intention of "fettering his executors as to the ways in which they may use the trust fund, as it is impossible to foresee the needs of future generations" (Clause 9). Counsel contends issuably that the legacy of the Trust Fund to the executors is a nullity, and that the property comprised in the legacy becomes caduca and devolves upon the heirs ab intestato of the testator. I have no doubt as to the validity of this contention. There is no beneficial bequest of the dominium of the trust fund to the executors. The legacy to them is purely for the purpose of administering the fund, but no binding trust or fidei commissum is laid upon them. They are merely "administrative pegs" but the administration is to be without any palpable object capable of reasonable

De Villiers, J.A.

determination. In the language of our own law, the executors are the fiduciary owners, but without any title to the usus or fructus, and without any burthen of fideicommissum. Such a disposition is not recognised by the Roman-Dutch law. I need only refer to Voet's Commentaries (36.1.29) where it is pointed out fideicommissum non dici posse quando in arbitrium ejus quem testator obligare cogitat...