Marks v Estate Gluckman

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 15 December 1945
• Court: Appellate Division

Tindall, J.A.:

This appeal raises the question of the validity of a trust which the late Ephraim Gluckmann sought to establish by his will in order to provide financial assistance to Jews and Jewesses domiciled in the Transvaal for the purpose of education. In a codicil made on the same date as the will, namely, 19th July, 1937, the testator bequeathed his estate to his administrator (the manager for the time being of the Johannesburg Board of Executors & Trust Company, Ltd., who was also the executor) upon trust to be invested and dealt with by him in terms of his will. It is necessary to quote verbatim the relevant clauses in the will. After bequests of certain legacies the will in clause 7 thereof makes the following provisions : -

"Whenever there will be a surplus in the income of my estate after the above referred to payments shall have been made or when these or any of them will have ceased, then such surplus shall be used for the purpose of bursaries and in manner as follows: -

(a)

The bursaries shall rise gradually as my executors shall determine but shall not exceed £30 (thirty pounds) per month, and shall be awarded to any person, male or female, who shall satisfy the head of the Witwatersrand University for the time being that he or she is a fit and proper person to receive the bursary and has complied and who is willing to comply with the provisions in Schedule "A" attached hereto. The choice of the Head of the said University shall be final.

(b)

The bursary shall continue for as long as the. grantee shall make progress and shall come to an end immediately he or she fail in any examination for which he or she may sit or fail or refuse to sit for such examinations as the said Head may determine to be suitable for the trade, occupation or profession chosen by the grantee.

(c)

My executors shall have the right at any time and without assigning any reason for their so doing to cancel the bursary, provided always that should the grantee be outside the Union at time of such cancellation they shall tender him his return passage, the amount whereof is to be within their discretion entirely. It is my desire that the bursary shall not be cancelled for political reasons but that it shall be cancelled if the grantee prove religiously inclined or is inclined to take up a military career.

(d)

The choice of the profession, trade or occupation for which any bursary be granted shall be in the unfettered. discretion of the grantee and such grantee shall be at liberty to change such profession, trade or occupation whenever he find that he is unsuited for the one chosen by him."

Tindall, J.A.

The Schedule "A" referred to reads as follows:-

"The grantee, who may be male or female, shall comply with the following provisions:-

The grantee shall be-

A. (i)

in such poor circumstances as to make it quite patent that but for this bursary the grantee would be obliged to discontinue the education. Education shall include any business, farming, art, trade, profession, occupation and/or research work. It shall include, in fact, any work which the grantee may choose to take up except a military or religious career;

(ii)

domiciled in the Transvaal;

(iii)

a Jew or Jewess (not a converted);

(iv)

to the satisfaction and discretion of my executors in good health and normal in height, appearance and body;

(v)

willing to study for at least two years at the U S S R., after or at his or her option before he or she shall have obtained the Matriculation Certificate.

B. (i)

My executors shall satisfy themselves that the grantee has never failed in any examination for which he or she sat.

(ii)

The Head of the said University shall be of opinion that the grantee is a promising person.

C.

In the event of the acceptance of such bursary affecting the parent, or parents or guardian by reason of loss of earnings by such grantee, then my executors may allow such parent or parents an amount which may compensate them for such loss and may increase such allowance from time to time as they may deem fit.

D.

In granting the bursary preference may be given to inmates of the Jewish Orphanage at Johannesburg.

E.

The grantee shall in writing, with the consent of the guardian, undertake that no part of the bursary shall be used directly or indirectly for purposes of procuring any religious training.

F.

The grantee shall, with the consent of his guardian, in writing undertake to my executors that on completion of his or her education he or she shall whenever it may become possible, repay to my estate all moneys expended by my estate upon the grantee, plus interest calculated at the rate of 5% (five per cent.) per annum. Such repayments shall be by monthly instalments in the discretion of my executors, but, should there be any dispute then such dispute shall be settled in the magistrate's court, Johannesburg, and for this purpose the grantee shall, with the consent of his parent, parents or, guardian, sign a consent to the jurisdiction of such court."

The testator died on 25th December, 1942, and in July, 1943, the executor applied to the Witwatersrand Local Division for an order declaring (a) whether a trust had been created and (b) which of the clauses or conditions or portions thereof are invalid. The Court appointed Mr. Rathouse, curator ad litem to K. Gluckmann, a brother of the testator, and Mr. Franks, curator ad litem to represent any person or persons who may be interested in the trust, meaning,

Tindall, J.A.

I presume, prospective beneficiaries. Notice of the application was given to the present appellant, who is a sister of the testator and is married to Moses Marks. The petition alleged that the executors were advised that the class of person eligible for bursaries under the trust was not sufficiently defined and that the condition that a beneficiary must be "a Jew or Jewess (not a converted)" was so vague and uncertain as to invalidate the trust. In the Local Division counsel for the sister and brother advanced the same contentions as those relied on by counsel for the executor, namely, that the trust was invalid, and the other side of the question was presented by Mr. Franks.

To establish the alleged vagueness of clause A (iii) of the Schedule to the will reliance was placed in the Local Division on Clayton v Ramsden (1943, A.C. 320). RAMSBOTTOM, J., held that that decision, which dealt with the construction of a clause providing for the forfeiture by the testator's daughter of her vested interest if she married "a person not of Jewish parentage and of the Jewish faith", did not apply to the construction of a clause, such as clause A (iii), which occurs in provisions made for the creation of a trust. The learned Judge held that this trust is not of a private character, that in England it would beheld to be a "charitable trust", that in our law it falls within the meaning of bequests ad pias causas and that a benevolent interpretation must be given to its terms. In dealing with the practical application of clause A (iii) RAMSBOTTOM, J., in a passage in his reasons which will be quoted later, held that, whether the person to be satisfied is the administrator or the head of the University, in the case of the great majority of applicants no practical difficulty will arise in giving effect to the testator's wishes and in deciding whether the applicant is qualified.

In regard to an argument advanced by counsel for Mrs. Marks that the last sentence in clause 7 (c) invalidated the trust, the learned Judge held that this provision was void for vagueness. RAMSBOTTOM, J., also dealt with a contention that the last sentence in clause A (i) and clause E of the Schedule were contrary to public policy and vitiated the trust. This contention was not repeated in this Court and I agree with the learned Judge's view that the testator, as the founder of these bursaries, was entitled to define the uses to which the money should, be put and, by so doing, exclude other uses; and that in clause A (i) he has defined the field of studies

Tindall, J.A.

for which a grantee may use a bursary by specifying the courses of study which he may not pursue. So also in regard to clause E; if the grantee, while enjoying the bursary, wishes to procure religious training which involves the expenditure of money, he must not use the bursary money for that purpose directly or indirectly. It cannot be said that clauses A (i) and E are against public policy. I may refer here to the very interesting case of Bowman v Secular Society Ltd. (1917, A C. 406), which was quoted by Mr. Mulligan on behalf of the appellant on the first of his arguments to be mentioned later in this judgment. In that case a testator bequeathed his residuary estate to trustees "upon trust for the Secular Society Ltd.", a company the main object of which was "to promote the principle that human conduct should be based upon natural knowledge and not upon supernatural belief, and that human welfare in this world is the proper end of all thought and action", an object which, the House of Lords assumed, involved the propagation of doctrines hostile to the Christian religion. It was held that the object of the company was not against public policy and an attack on the right of the company to receive the money failed. It was not necessary in that case to decide whether a trust, to promote such doctrines would have been a good charitable trust; for this was in essence a bequest of money to a legal entity which was held to be entitled to receive it. In Bowman's case, where the argument based on considerations of public policy failed, the facts in favour of the attack on the validity of the bequest were stronger than those relied on at the hearing before RAMSBOTTOM ., for clauses A (i) and E do not propagate any special doctrines; their effect, as I have said, is to limit the field of studies...