Settlers 1820 National Monument Foundation v Van Aardt and Others

• Jurisdiction: South Africa

Settlers 1820 National Monument Foundation v Van Aardt and Others 1977 (2) SA 368 (E)

1977 (2) SA p368

Citation	1977 (2) SA 368 (E)
Court	Eastern Cape Division
Judge	Eksteen J and Addleson J
Heard	September 16, 1976; October 14, 1976
Judgment	November 11, 1976

Flynote : Sleutelwoorde G

Will — Construction of — Bequest to "1820 Settlers Association at Grahamstown" — Two institutions, the "1820 Settlers National Monument Foundation" and the "1820 Memorial Settlers Association of H South Africa" laying claim to the bequest — Facts and extrinsic circumstances indicating that first-named institution the intended' beneficiary — Rule nisi issued — Procedure — When application should be initiated by way of an ex parte application.

Headnote : Kopnota

The testator who was born and bred in the Eastern Cape and had spent all his long life in the Eastern Cape, had in his will enjoined his administrators to pay the income from the investments to his widow during her lifetime and on her death "I give and bequeath the residue of my estate to the 1820 Settlers Association at Grahamstown for the promotion and advancement of its objects". It appeared that there was the "1820 Settlers National Monument

1977 (2) SA p369

Foundation" and the "1820 Memorial Settlers Association of South Africa". The first Association had its headquarters in Grahamstown while the second had its head office in Johannesburg with branches in the Republic and overseas. From the affidavits filed the facts and extrinsic circumstances pointed to the first Association being the beneficiary. In A an application to construe the will,

Held, that an application of this nature might well be more properly initiated by an ex parte application for a rule nisi.

Held, that a rule nisi should be issued calling upon all interested parties to show cause why the "1820 Settlers National Monument Foundation" should not be declared the beneficiary.

Case Information

Application to construe a will. The facts appear from the B reasons for judgment.

T. M. Mullins, S.C. (with him M. P. Jennett), for the applicants.

C. T. Howie, for the respondents.

Cur. adv. vult. C

Postea (October 14).

Judgment

Eksteen, J.:

The late Bartholomeus Jacobus van Aardt who died at Somerset East on 11 January 1974 in his 84th year, left a will in which, after making provision for certain legacies, he D directed that all his "farming properties, live stock, implements and all other movable property" should be sold by public auction, and the proceeds thereof be invested by his administrators who were enjoined to pay the income from such investments to his widow "regularly each half-year during her widowhood". He then went on to provide that: E

"On the death of my wife I give and bequeath the residue of my estate to the 1820 Settlers Association at Grahamstown for the promotion and advancement of its objects".

In his will he also appointed his wife, Pauline Kruger van Aardt, and his attorney, Vernon Neil Lincoln Farr to be his executors and the administrators of his estate. They are cited jointly in their capacity F as such as first respondents in the present application.

Having embarked on their duties of administering the estate they lodged a first and final liquidation and distribution account with the Master on 15 October 1974 in which they purported to award the residue of the estate to the present applicant subject to the life usufruct to the testator's widow, who, in her personal capacity is cited as the second G respondent. The nett amount of this residue amounts to R169 243,49.

The applicant, a company incorporated with limited liability, is registered under the name of "The 1820 Settlers National Monument Foundation" and is not known as the "1820 Settlers Association" which was how the testator described the H beneficiary in terms of his will, but it nevertheless contends, on information to which I will refer later, that it is the institution which the testator had in mind when he made his will. The applicant was aware of the fact that another body known as "The 1820 Memorial Settlers Association of South Africa" also sought to lay claim to this bequest, and so, on 8 November 1974, it very properly wrote a letter to this Association informing it of the bequest and supplying it with the affidavits on which the applicant relied for its contention that the testator intended that it should be the beneficiary under his will and inviting the Association to

1977 (2) SA p370

Eksteen J

acquiesce in the applicant's intention of approaching the Court for a declaratory order. The 1820 Memorial Settlers Association of South Africa did not agree with this suggestion and on 26 A June 1975 it lodged an objection to the estate accounts. It is now cited in this application as the fifth respondent.

On 4 July 1975 a further objection to the accounts was lodged by one W. P. van Aardt, a brother of the testator, who contended that as there was no beneficiary in existence known as the "1820 Settlers Association" this bequest must be B regarded as having failed and the residue of the estate must therefore be distributed ab intestato. This objector has been cited as the third respondent, and his sister, who would also rank as an heir on intestacy, was cited as fourth respondent.

As a result of these objections the Master directed the executors to reframe the accounts so as to reflect the residue C of the estate as being awarded to "the administrators in trust in terms of and subject to the conditions of the will". So framed the identity of the ultimate beneficiary remains as uncertain as ever - hence the present application.

In its supporting affidavit the applicant refers to the dispute which has already arisen and submits that it is desirable that D it be resolved now while the first respondents, who are both elderly people, and who can possibly throw some light on the testator's intention, are still alive. They also point out that until the nature of the ultimate beneficiary has been established, the Master is unable to allow the deduction in terms of sec. 4 of the Estate Duties Act, 45 of 1955, for the determination of estate duty payable. In its replying affidavits the fifth respondent agrees that it is most E desirable that the ultimate beneficiary be established now, and it is also in agreement with the applicant's submission that the matter can be decided on motion proceedings and need not go to trial. The third and fourth respondents have not filed any affidavits, nor have they appeared to advance any contentions in argument. In the view we hold of the matter we are in agreement with the parties on both these contentions.

F The crucial issue for decision in this case is, as I have indicated, what institution the testator had in mind when he used the phrase "the 1820 Settlers Association" in his will, and the primary consideration is whether he intended to benefit the applicant or the fifth respondent. It seems clear both from G the wording of the will which was signed by the testator less than two months before his death, and from evidence adduced on affidavit that the testator did have some existing organisation in mind. Moreover it has been submitted that if that organisation be the applicant or the fifth respondent the bequest can be regarded as one ad pias causas since both of them may properly...