Ley v Ley's Executors and Others

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Schreiner JA, and De Villiers AJA
• Judgment Date: 21 May 1951
• Citation: 1951 (3) SA 186 (A)
• Hearing Date: 04 May 1951
• Court: Appellate Division

Centlivres, C.J.:

The appellant (to whom I shall refer as Mrs. Ley) is the widow of the late Percy Ley who died in Pretoria in

Centlivres CJ

February, 1950. Ley left a will and codicil both of which were executed at Pretoria. The will was dated November 11, 1949, and the codicil November 28, 1949. The respondents to this appeal are the executors of the estate, certain beneficiaries under the will and the Master of the Supreme Court.

A The will begins with the statement that it is the will 'of Percy Ley who was married to Ethel Mary Collins in England after 1884 and consequently without community of property'. It provided that:

(1)

Out of the testator's estate Mrs. Ley should receive a legacy of B £50 per month for so long as she should remain unmarried, together with certain other legacies and

(2)

second and third respondents should succeed as heirs to the residue of the testator's estate.

The executors of the estate administered it on the footing that the C testator had been married out of community and that consequently the whole estate belonged to him. They accordingly repudiated a claim made by Mrs. Ley to half the estate.

Mrs. Ley instituted an action in the Transvaal Provincial Division in which she alleged that at the date of her marriage in England (i.e. in D August, 1905) Ley was domiciled in South Africa in the Colony of the Cape of Good Hope or alternatively in the Transvaal Colony. As no antenuptial contract was concluded between the parties, Mrs. Ley averred that the marriage was in community of property. She accordingly claimed an order declaring: -

'(a)

E that the said late Percy Ley was, at the date of his marriage to plaintiff, domiciled in the Colony of the Cape of Good Hope or alternatively in the Transvaal Colony;

(b)

that the said marriage between the said late Percy Ley and plaintiff was in community of property;

(c)

that plaintiff is entitled to one-half share in the joint estate of F the said late Percy Ley and plaintiff presently being administered by first defendants;

(d)

that the last will and testament of the said late Percy Ley operates only upon the half share of the said joint estate to which the estate of the said late Percy Ley is entitled.'

The respondents filed a plea in which they alleged that at the time of his marriage Ley was domiciled in England.

G The evidence, which was not disputed before us, was as follows. Both Ley and Mrs. Ley were born in Cornwall, England. Ley was born in 1880 and at the age of 14 he was apprenticed as a stone mason. Shortly after he became a stone mason, i.e. in 1899, Ley became engaged to his future wife. In the early years of this century the wages for stone masons were H very much higher in South Africa than in England. Many of the young tradesmen in Cornwall emigrated to South Africa and amongst them were personal friends of Ley. He told Mrs. Ley when he was only fourteen years of age that he was anxious to go to South Africa and he afterwards told her that he was working in order to get money to enable himself to emigrate to South Africa. In January, 1903, Ley sailed for Cape Town and he remained in South Africa until

Centlivres CJ

May, 1905. During this period he was, apparently, most of the time in Cape Town which was his postal address but he also obtained employment at other places in South Africa, viz., at Paarl and Simonstown in the A Cape Colony and at Kroonstad and Thabanchu in the Orange River Colony. In 1902, 1904 and 1905 he told certain persons, who were called as witnesses, that he was satisfied with the country and intended to remain there. In May, 1905, Ley sailed from Cape Town to England in order to marry his fiancee. As soon as he reached England he booked his passage B back to Cape Town. In August, 1905, the parties were married and they spent their honeymoon in travelling about England - a honeymoon which left the parties practically penniless. In the result Ley left his young wife in England and sailed for Cape Town on November 17, 1905. In C addition to the fact that he did not have sufficient money to obtain a passage for his wife, he told her than when he got back to South Africa he could go around the country more easily on his own from one job to another. He told his wife that he would send for her as soon as he could afford the money. There was some delay about this, because Mrs. Ley gave birth to a baby on August 12, 1906. She stated that at D that time one could not travel to South Africa with babies. There is no evidence as to where Ley worked immediately after returning to Cape Town nor is there any evidence as to where he worked during the remaining part of 1905 or during 1906, 1907 and 1908. Evidence was, however, given by one witness to the effect that during 1903 to 1906 he saw Ley E frequently in Cape Town. This witness left for Australia in 1906 but returned to Cape Town in 1908. On his return to Cape Town he did not see Ley but heard of his being there. In 1909 Ley settled in Pretoria and in 1910 his wife and child joined him there.

F CLAYDEN, J., who tried the case in the Provincial Division, granted a decree of absolution from the instance. In the course of his judgment he said:

'It can, I consider, only be said in this case that Ley had decided to live somewhere in South Africa. In the years from 1903 to 1905 he had settled himself in the Cape Colony, but I do not think it can be said G that he had excluded any other part of South Africa as his eventual home. Where opportunity best presented itself there he would have gone, and in fact later he did so . . ..

Ley was an emigrant. He had chosen South Africa as his future land. In that land he settled, at first in the Cape Colony. But it has not, I think, been shown that he had reasonably excluded as his home in the new land some other of the then constituent colonies. The Court ought, one feels, in the case of an immigrant to South Africa, as it...