Kleyn v Estate Kleyn & Others

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and AFS Maasdorp Acting AJA
• Judgment Date: 19 August 1915
• Hearing Date: 10 May 1915
• Court: Appellate Division

Innes, C.J.:

This is a special case, stated to ascertain the legal position of the plaintiff, the sole surviving son of the late Mr and Mrs. Kleyn, in regard to certain moneys accruing to him from their estates. His claim thereto is in possible conflict with the rights of his children the uncertainty being due to the terms of a will and three codicils to which it will be convenient, at once, to refer. On August 31, 1885, his parents executed this testament by which they reciprocally appointed one another heirs together with their children-that is to say the first-dying appointed the survivor and the children to be his or her sole and universal heirs. This appointment was made subject to the usual condition that the children should only receive their paternal or maternal portion on majority or marriage-the surviving parent being entitled to the interim usufruct for the purposes of support and education. The will, it is important to note, contained a reservatory clause empowering the testators by informal disposition to alter any provision, save that dealing with the institution of heirs. On the same day, and purporting to act under the clause above-mentioned, the testators executed a codicil which was in the following terms:

"Uit kracht van de clausule van dit ons testament, zijn wij verder

Innes, C.J.

overeengekomen te weten, dat de langstlevende in het volle bezit van onze gezamentlijke boedel te blijven zonder aan enig kind of kinderen eenig erfenis hoegenaamd of renten op eenig erfenis to betalen, en verder over den boedel te disponeeren en verdeelen aan onze twee zoons naar het oordeel der langstlevende."

Some seven years thereafter, a further codicil was drawn up and signed. It began by providing that any rent due to the first estate at the death of the first-dying, by the testators' son, D. H. Kleyn, should be remitted and not deducted from the a mount of his inheritance at the division of the estate; and it then proceeded to deal with the plaintiff's portion as follows:-

"Ook ingeval onze zoon Willem Hendrik Frouenfelder Kleyn mag komen te overlijden voor zijne echtgenote dat alsdan zal het erfenis hem toekomende uit onze gezamentlijk boedel belegd zijn met de bond van Feide Commis en devolveeren op zijne kinderen in dit huwelijk verwekt de renten te strekken tot hunne verdere opvoeding en onderhoud."

After an interval of five years a third codicil was executed providing for a money legacy to an adopted daughter of the testators. It is not necessary here to set out its terms. All the codicils purported to be made under the reservatory clause of the will; but they were all signed and witnessed as required by law in the case of ordinary testamentary dispositions.

The testator at his death in April, 1898, left two children, the plaintiff and his brother, D. H. Kleyn, who died in March, 1902. The testatrix remained in possession of all the assets, and in 1904 obtained the authority of the Court to transfer certain landed property to the plaintiff upon payment by the latter of £3,700 to a trustee for investment, it being ordered that the money so invested should fall under the operation of the will and codicils in like manner as the land which it represented. The South African Association, as trustee under the above arrangement, is a party to the present proceedings. Thereafter in November, 1904, a family agreement was come to between the testatrix, the plaintiff and the executors of his brother with regard to the allocation of the immovable property which had formed part of the joint estate, matters being so adjusted as to equalise the portions of the two brothers, taking into account their indebtedness to the estate and to one another. This agreement the testatrix confirmed and gave effect to by a will executed on 31st August, 1911, which contained a clause

Innes, C.J.

having special reference to the codicil of 1892. Having gathered, she said, that that document might be read as imposing a fidei-commissum upon the plaintiff's inheritance, she wished to declare that that was not the meaning. She and her husband had only intended that in case the plaintiff predeceased the survivor then his inheritance should devolve upon his children, but that should he outlive the survivor his portion was to come to him free and unencumbered. She therefore expressly directed that in case the plaintiff was alive at her death his inheritance, as ascertained and determined, Should go to him in full and free ownership. In that way she claimed to be giving effect to the true meaning of the original will and codicils.

The testatrix died in 1912, and doubts having arisen as to the legal position, the material facts were embodied in a special case for the decision of the Cape Provincial Division. The plaintiff' contended that there was no massing under the will, and that the fidei-commissum imposed by the second codicil was conditioned upon the plaintiff preceding the surviving testator. That event not having happened, he claimed his inheritance unburdened. Alternatively he maintained that the testatrix having had the right to. divide the estate between the heirs, had done so during her life by the family arrangement already referred to, and at her death by last will. Both documents purported to award his share of the estate free and unencumbered, and he relied upon them in case his contention as to the meaning of the original testament was not upheld. In any event he contended that the fidei-commissum imposed by the codicil could only operate upon his paternal and not upon his maternal inheritance. Mr. Sutton was appointed curator ad litem to a minor daughter of the plaintiff. His contention was. that there had been a massing and an acceptance of benefits under the first will and codicil; that the testatrix had therefore no power to revoke or vary the fidei-commissum imposed by the second codicil; and that in terms of that codicil the plaintiff's inheritance was burdened by a fidei-commissum in favour of his children in...