Jakins v Burton

• Jurisdiction: South Africa
• Judge: Diemont J
• Judgment Date: 04 June 1971
• Hearing Date: 13 May 1971
• Court: Cape Provincial Division

Diemont, J.:

This is an application by a widow for the payment F of money from a trust fund. The applicant is the mother and natural guardian of four young children the eldest of whom is aged eight years and the youngest three years.

She alleges that she and the respondent, who is an attorney residing in Durban, were appointed co-administrators of a trust G fund created in terms of the last will and testament of her deceased husband. The relevant paragraph in this will reads as follows:

"The entire balance of my estate, whether movable or immovable and wheresoever situate I leave and bequeath to my four children in equal shares.

It is distinctly directed by me that each child shall only receive his or her share upon attaining the age of 21 (twenty one) years.

I hereby appoint my wife Susanna Cornelia Francina Jakins and H attorney Burton of the law firm Goodricke and Sons Durban, as the joint curators of my children's inheritances, giving and granting to them full power and authority to deal with such inheritances in the best interests of my children, to make investments, sell property, lend out money on first mortgage, and generally to deal with all the assets of their investments and inheritances in a good and efficient and businesslike manner.

I further specifically direct that should any portion of a child's inheritance be required for the proper care and/or education of such child before such child reaches the age of 21 (twenty one) years, then and in such event their curators shall be entitled to utilise such portion for such purpose only."

Diemont J

The estate was liquidated in 1969 and a sum of R66 102,73 was handed over to the administrators.

Applicant informed the Court that she was a medical doctor but, owing to the fact that her children were of tender years, she A had decided not to practice; she was devoting her full time and care to the children. She stated that she had a monthly income which amounted to R164,75; this sum was insufficient for the support of the family. She accordingly claimed that the respondent, who was administering the trust fund, should pay all the income received from the investment of the funds to her for the support of the children. She alleged that the trust B received an income amounting to R446,82 nett per month. It was submitted that the correct interpretation of the terms of the trust was

"that the income accruing from the investments of the trust funds may be used for the maintenance, education and support of the said minor children and that if the said income is not sufficient for the said purposes then and in that event capital may be used".

C This submission was not contested, however. Respondent did contend initially that R300 per month was sufficient for the maintenance of the children. Subsequently, in December, 1970, he agreed to increase this sum to R330 per month. Applicant claimed that this amount was inadequate and that her household expenses amounted to R574,07, of which R87 was incurred solely on her own behalf.

D After a lengthy correspondence which resolved none of the difficulties the applicant decided to move the Court for relief. She now sought an order:

"(i)

Directing the respondent to pay all the income received from the investment of the funds of the said trust to the applicant.

(ii)

Ordering the respondent to pay the party and party E costs of this application and the trust the attorney and client costs, or alternatively.

(iii)

Ordering the trust to pay the costs of this application.

(iv)

Alternative relief."

Applicant set out details of her household expenses in the supporting affidavit and alleged that her attorneys had repeatedly written to the respondent requesting him to increase F the maintenance but save for the small increase of R30 referred to he had declined to give her more than R330.

Respondent filed an opposing affidavit in which he stated that the average gross sum of money received by the trust per month was the sum of R472,55. He said:

"From the above there falls to be deducted the following items G calculated pro rata monthly, certain of which have not yet been assessed but are estimates as reflected hereunder, namely:

collection commission	R23,62
premium, for curator's bonds estimated at double that assessed for the deponent's bond	22,63
bookkeeping records and auditor's fee estimated at	6,30
tax, estimated on the basis that the trust is assessed as a single unit	55,25
monthly maintenance	330,00
	R437,80

This leaves a monthly credit balance of R34,75 from which will have to be paid medical and dental accounts for the children, such expenditure on furniture and furnishings as is necessary for them and to cover other contingencies."

He went on to make the following submission:

"Although the will of the late G. W. Jakins does not specifically stipulate that the minor children of the marriage between himself and the applicant

Diemont J

should be maintained and educated in so far as it was possible out of the income received from any investment of the children's inheritances, I do not dispute that the interpretation set out in para. 8 of the applicant's affidavit is the correct...