Mende v Mende and Others

• Jurisdiction: South Africa
• Citation: 1938 AD 259

Mende Appellant v Mende and Others Respondents
1938 AD 259

1938 AD p259

Citation	1938 AD 259
Court	Appellate Division
Judge	Stratford CJ, De Villiers JA, De Wet JA and Feetham AJA
Heard	March 8, 1938
Judgment	March 22, 1938

Flynote : Sleutelwoorde

Will — Construction — Precatory trust — Words of mere recommendation.

Headnote : Kopnota

A testator in his will, in the form of a letter to his children containing a number of provisions from which it could be inferred that he assumed that the heirs would be able to agree on any question of difference, stated "if my son shall wish to take over my share of the factory... then it is my wish and will that you remaining children and also Mother shall give your consent."

Held, that the son had no right to take over the share in the factory save and except with the unanimous consent of the other children and their mother, who were entitled to withhold their consent.

The decision of the Transvaal Provincial Division in Mende v Mende and Others confirmed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (TINDALL, J.P., and MARITZ, J.). The facts appear from the judgment of DE WET, J.A.

C.T. Blakeway, K.C. (with him W. Meyers), for the appellant: The will as a whole points to a direction by the testator that, should Paul elect to take the shares, the children and widow cannot resolve otherwise. The testator gives him a right to elect to take the shares or remain an heir, and the will should be construed to give effect to this intention. See Wood v Petrie and Others (1923 AD 420 at pp. 425, 426, 427); Smith v Crabtree (6 Ch. D. 591 at p. 596); Sherratt v Bently (39 E.R. 901 at pp. 904, 907), and Halsbury a Laws of England (vol. 28, para. 1260).

If the testator intended to give Paul the shares, the fact that he did not foresee the consequences does not entitle the Court to find some other intention. See Jarman on Wills (7th ed., vol. 2, p. 2145); Smith and Others v Streatfield and Others (35 E.R. 706 and 15 R.R. 132).

It is not impossible to make a gift of shares on the condition provided in the will and the result would be that Paul becomes fiduciary owner in respect of the shares, the fideicommissum being the handing over of reserve funds when received by him. See Kemp's Estate and Others v McDonald's Trustee (1915 AD 491 at pp. 498, 499).

The construction should be in favour of validity. See Byrne

1938 AD p260

v Reid (1902, 2 Ch. 735 at p. 742) and, if it was the intention of the testator to safeguard the estate, adequate provisions could be imposed by the Court.

J. T. Barry, K.C. (with him A. Shacksnovis), for the respondents; The words "If my son Paul should wish to take over my share in the factory. then it is my wish and will that you remaining children. and also mother shall give your consent," do not give Paul the right of election to take the shares, as the provision for consent is incompatible with that construction. See Sande on Restraints (3.3.7 and 3.6.16, Webber's trans., pp. 187 and 220); Juta on Wills (pp. 95-7 and 107); Steyn on Wills (p. 212); In re Carey (11 S.C. 123); In re Estate Lourens (1912 CPD 643); Ex parte Terwin (25 S.C. 890), and compare In re Hamilton (1895, 2 Ch. 370).

Interpretation should always be in accordance with the general scheme, theme, thought or voluntas underlying the will. See Steyn on Wills (p. 34), and Furstenbery N.O. v Liebenberg (1921 OPD 18).

There cannot validly be any compulsion of assent in a will at most there can be a direction or condition coupled with a penalty.

J. Isaacs as curator ad litem to the minors in the estate.

Blakeway, K.C., in reply, cited Halsbury's Laws of England (vol. 28, para. 1295).

Cur adv vult.

Postea (March 22nd).

Judgment

De Wet, J.A.:

This appeal raises the question of the interpretation of a provision in the testamentary dispositions of the late Joseph Valentin Paul Mende. The testator, who had been domiciled in the Transvaal since 1896, died on the 25th July, 1936. He was married in Germany in 1889 and by virtue of a postnuptial contract executed in accordance with the law of Prussia community of property and community of profits between these spouses had been excluded. On the 30th July, 1915, the testator made a joint will with his wife whereby the survivor was appointed sole heir or heiress of the whole estate left by the first dying with a further provision that at the death of the survivor the whole of the estate left at the decease of such survivor should devolve upon the children of the marriage.

1938 AD p261

De Wet, J.A.

At the time of his death the testator was a director of the Transvaal Carbonic Acid Gas Works Limited, a private company which had been registered in the Transvaal in 1921 with a capital of 10,009 £1 shares. When the company was registered the testator held 5,000 shares in the company. For some years before his death the testator, owing to ill-health, did not take an active part in the supervision of the factory and an arrangement was arrived at whereunder his son Paul did the work which he had previously done. The testator donated and transferred 500 of his shares to his son and also appointed him as his alternate on the board of directors. For the services thus rendered by the son the...