Schaumberg v Stark, NO

• Jurisdiction: South Africa
• Citation: 1956 (4) SA 462 (A)

Schaumberg v Stark, NO
1956 (4) SA 462 (A)

1956 (4) SA p462

Citation	1956 (4) SA 462 (A)
Court	Appellate Division
Judge	Centlivres CJ,Fagan JA, De Beer JA, Beyers JA and Hall AJA
Heard	September 4, 1956
Judgment	September 14, 1956

Flynote : Sleutelwoorde G

Statute — Proc. 55 of 1920 (S.W.A.) sec. 1 — Repeal by implication — Will H — Construction — Fideicommissum or usufruct — Estate not vested in trustee — Survivor's interest shown to be fiduciary — Jus accrescendi — When operative.

Headnote : Kopnota

Section 1 of Proclamation 55 of 1920 (S.W.A.), in so far as it requires the leave of the Appellate Division to appeal, is repealed by implication.

The testator had by his will bequeathed his entire estate as it existed and as found at his death to his wife and declared that his estate should be managed as a whole for his heiress by a named trustee. As long as his wife

1956 (4) SA p463

lived, the revenue from his estate had to be paid out exclusively and undivided to her. After her death the estate 'may be realized if my three children, H., P. and R. wish it so. In that event; one-third of my estate shall devolve upon each of my above-named three children. If they want only the interest . . . the realization of the estate shall be refrained from. Before, however, the estate is realized upon the wish of my three abovenamed children or before the interest from my estate is distributed in equal shares among my above-named children, a capital of A £1,000 shall be set aside from which the interest shall be paid out to my son J.'. The testator's son P. died in 1952 leaving four minor children. The testator's widow applied for an order declaring (a) that on the death of the testator she had become fiduciary heir and that the three children H. P. and R. had become fideicommissary heirs; (b) on the death of P. the portion of the testator's estate in which he had had a fideicommissary interest had become vested in her. A High Court having refused such order, in an appeal,

B Held, that the estate had not vested in the trustee.

Held, further, that the entire estate had vested in the testator's widow.

Held, further, that the widow's interest was a fiduciary one.

Held, further, that the testator had not intended the jus accrescendi to operate nor had evidence been placed before the Court to justify an inference that P.'s share should accrue to H. and R.

Held, further, that P.'s share became the property of the widow.

Semble: that the widow was not now entitled to have P.'s share paid out C to her. The decision of the High Court, South West Africa, in Schaumberg v Stark N.O., reversed.

Case Information

Appeal from a decision in the High Court, South West Africa. The facts appear from the judgment of CENTLIVRES, C.J.

S. Miller, Q.C. (with him Miss L. van den Heever), for the appellant: D Leave to appeal is not required in the present case since sec. 3 of Act 12 of 1920 was substituted by sec. 108 of Act 46 of 1935, so as to make leave to appeal in cases of judgments upon application by way of motion or petition unnecessary. O'Reilly v Goldstein, 1923 AD 100, therefore no longer applies. See too International Radio Store v Hansa House E (Pty.) Ltd. (1951 AD unreported). Alternatively, if leave to appeal is required it will be granted, since the matter in issue is of substantial interest to the parties and appellant has a reasonable prospect of success on appeal.

Appellant's rights were not intended by the testator to be of a merely usufructuary nature. When there is a doubt whether a bequest is a F fideicommissum or a usufruct, the presumption is in favour of the former; see Ex parte Broodryk, 1944 T.P.D. 57. The dominant provision of the will is a bequest of the entire estate to her, the other provisions being of subordinate importance in the testator's mind, and she alone is referred to as being the testator's heiress; cf. Nadaraja, Roman-Dutch Law of Fideicommissa (p. 280 and authorities cited in nn. 23 - 31, 33 G and at pp. 289 - 91). The son Johannes clearly is a usufructuary and there is a sharp distinction between the wording of the will relating to appellant and that relating to him. It is only after her death that a proportion of the estate 'shall devolve upon' the named children. Accordingly, the provision that as long as she is alive, the revenue from the estate is to be paid out exclusively to appellant, is no more H than an indirect prohibition against alienation and not an indication that she is to be merely a usufructuary. If appellant's rights are not merely usufructuary, she upon the death of her son Paul, became full owner, of one-third of the corpus, of the estate. Alternatively, assuming that the testator intended to vest the estate in the trustee, it is clear that he would be only an 'administrative peg' of a fiduciary, that appellant's

1956 (4) SA p464

rights vested immediately on the death of the testator and that, unless the jus accrescendi applies between the three children, upon Paul's death she still became owner of one-third of the estate, unburdened; see Estate Kemp and Others v McDonald's Trustee, 1915 AD at pp. 491, 503 A - 4, 506. There is no indication in the will that the jus accrescendi was intended to apply as between the three children; cf. Winstanley v Barrow, 1937 AD 75, 91; Voet, 30.1.61; Wynne, N.O. and Another v Oppenheimer, 1937 T.P.D. 91; Estate Cato v Estate Cato, 1915 AD at pp. 290, 304, 312; Ex parte Estate Daverin, 1945 CPD 204; Ex parte Estate Margris, 1944 NPD 123.

F. S. Smuts, for the respondent as duly authorised attorney and agent of Eleonore Schaumberg, widow of the late Paul Martin Karl Schaumberg, a beneficiary in the estate of the deceased testator. On a correct interpretation of the will in question, the testator's estate vested at his death in the trustee for administration purposes in terms of the will, the surviving spouse (appellant) obtained a usufructuary C interest, and each child obtained a vested interest to claim from the trustee that he transfer to such child, at the death of appellant, either a third share of the realised value of the estate or of the interest to be derived therefrom, according to what the children should decide upon. Such interest in the child Paul Martin Karl Schaumberg, was D accordingly transferred to his heirs on his death. Whether vesting took place in the testator's children at his death, is a matter of the testator's intention; see Smith and Another v Estate Smith, 1949 (1) SA at p. 543; Strydom v Strydom's Trustee, 11 S.C. at p. 429. In arriving at the intention of the testator, regard must be had to the will as a whole; see Gordon's Bay Estates v Smuts, 1923 AD at p. 165; E Estate Kemp v McDonald's Trustee, 1915 AD at p. 505; Samaradiwakara v de Saram, 1911 AD at p. 468; C.I.R v Sive's Estate, 1955 (1) SA at p. 265. If the will, read as a whole, discloses the true intention of the testator, words or phrases prima facie inconsistent with such intention must yield to the true intention and meaning of the will; see C.I.R v Sive's Estate, supra at p. 268; Wehr v Estate Wehr, 1922 F C.P.D. at p. 413; Ex parte Schroder, N.O., 1956 (2) SA 148; Estate Basson v Estate Lombaard, 1915 CPD 807. The language used by the testator must be considered in the light of the probabilities relating to the matter; see Cuming v Cuming and Others, 1945 AD at pp. 206, 210, 213. In determining whether the children of the testator obtained a G vested interest at the death of the testator, the Court need not concern itself with where the dominium in the estate vests immediately after the death of the testator; see Greenberg v Estate Greenberg, 1955 (3) SA at pp. 364 - 5. The testator did not, by the use of the words 'my heiress' intend to determine or describe the extent or nature of the rights conferred on his wife; see Wehr's case, ibid. It is clear H from the wording of the second paragraph of the will, that John Hugo Hill was not appointed as a mere agent to administer the estate on the wife's behalf, but was appointed trustee; see Voet 7.8.9; Schorer, de Groot (Note 149). As to the respective rights of a usufructuary and a fiduciary, see Estate Watkins-Pitchford, 1955 (2) SA at p. 447. The estate vested in the trustee at the death of the testator for the purpose of administering it and carrying out the...