Rosenberg v Dry's Executors and Others

• Jurisdiction: South Africa
• Judge: Coram Lord De Villiers CJ, Innes J, Laurence J (Acting Ordinary Judge of Appeal), CG Maasdorp JP and J De Villiers JP
• Judgment Date: 21 December 1911
• Hearing Date: 14 November 1911
• Court: Appellate Division

Lord De Villiers, C.J.:

This is an appeal against a judgment given by the Cape Provincial Division on a special case. The main facts stated in the special case are as follows: - In 1889 the testator and his wife, who were married in community of property, executed a mutual will by which they appointed the Survivor of them to be the heir of the first dying and the executor or executrix of his will, and they also executed a codicil by which they bequeathed to the children of their marriage a certain farm in equal shares, with the desire that such survivor should remain in full possession of the farm until his or her death when it was to become the property of the said children, and with the further desire that the survivor should not have the right to sell or hypothecate the farm. The testator died in 1903 without having revoked or altered the will and codicil, leaving him surviving the testatrix and seven children, all majors, of whom the second defendant is one. The testatrix was duly confirmed as executrix and she adiated and accepted the benefits given to her by the will and codicil. She died in 1909 without having revoked or altered the will and codicil. On her death there was no separate property belonging to her, and the only property which still belonged to the joint estate was the farm, which was at the testator's death, and still is, registered in his name. After the death of the testator the testatrix became indebted to the plaintiff in divers sums of money, and the plaintiff claimed as against the first defendants, as executors dative of the testatrix, judgment for the amount of the debt, and as against all the defendants a declaration that the half share of the

Lord De Villiers, C.J.

testatrix in the farm is liable to execution for the debt. The first defendants submitted themselves to the judgment of the Court, and the second defendant contended that, as the testatrix had only a life interest in the farm, it was not liable either wholly or in part for the debts contracted by the testatrix after the death of the testator. It appears to have been common cause that after adiation the testatrix was bound by the provisions of the will and codicil, and the next question for decision was whether the plaintiff is entitled to have the farm sold in execution, he ranking as concurrent creditor for the amount of the debt and the legatees as concurrent creditors for the amount realised in execution. The Court below, by its judgment, gave a negative answer to the question and against that judgment the second defendant has appealed.

In the view which I take of this case it is unnecessary to decide whether the testators intended to confer on the survivor a usufructuary interest or to confer on him or her a fidei commissary interest in the farm. In the cases relating to mutual wills, which have arisen between the survivor or his representatives on the one hand and the remaindermen on the other, this has generally been a vital question. Where the survivor has accepted benefits under a will, by which his half share of any property bequeathed to others after his death has been placed on exactly the same footing as the half share of the first dying, he cannot afterwards claim that the shares shall be placed on a different footing. If it is clear that the survivor was intended to retain only a usufructuary interest, that intention was given effect to in respect of the shares of both spouses, but only in cases in which there was no question as to the rights of creditors of the surviving testator. Upon this point I need only refer to two typical cases, viz., that of Strydom v Strydom (11 C.S.C. 425) in the Cape Supreme Court, and that of Samaradiwakara v De Saram, decided by the Privy Council on the 21st of July, 1911. In both these cases it was held that the intention of the respective testators was to reserve to the survivor only a usufructuary interest in the subjects of certain be-

Lord De Villiers, C.J.

quests and, as no question of prejudice to the creditors of such survivor was raised, effect was given to such intention by holding that the respective remaindermen acquired vested interests in the bequests upon adiation by the survivor. If, however, the rights of the survivors creditors had come into question in either of these cases, it would have become necessary to consider whether full effect could be legally given to the intention of the testators. In the present case it may be assumed that, as contended for by the first defendant, the testators intended to confer on their children a vested interest in the whole farm upon adiation by the testatrix, and the question must be decided whether, notwithstanding such intention, the testatrix retained any rights of ownership which her creditors are entitled to avail themselves of. As to the testator's half share in the farm, it is clear that it cannot be charged with the debts of the testatrix, which were incurred after his death. The legatees now have a real right in respect of such share with which such debts cannot come into competition. In regard, however, to the half share of the testatrix, she did not, either by joining in the making of the mutual will, or by adiation after the death of her husband, divest herself of her ownership. It was assumed by the Court below that she could acquire no dominium in the farm without registration in the Deeds office in her own name, but it is expressly stated by Groenewegen (Ad. Inst. 3, 23) that the alienation of immovable property, brought about by virtue of the conjugal community of goods, constitutes one of the exceptions to the general rule of the Dutch law that no such alienation can be effected except coram judice rei sitae. In another passage (Ad. Inst. 2, 8) he makes a similar statement, and Voet (23, 2, 68) says that by virtue of the community of goods all the property of the one spouse is vested in the other ipso jure without delivery of corporeal property or cession of incorporeal...