Shenker v the Master and Another

• Jurisdiction: South Africa
• Judge: Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
• Judgment Date: 18 March 1936
• Citation: 1936 AD 136
• Court: Appellate Division

De Villiers, J.A.:

Asriel Kurs died unmarried in Johannesburg in August, 1934. The executor appointed by his last will had predeceased him, so the Master called a statutory meeting of his heirs, legatees and creditors in order that an executor dative might be proposed in terms of sec. 34 (1) of the Administration of Estates Act (24 of 1913). Considering himself to be a creditor (in terms of sec. 34 (1) ) in respect of the death duties and fees of office which would be payable by the deceased's estate, the Master took the step of appointing Mr. Langstaffe to represent him at the statutory meeting, instructing him to propose himself (Langstaffe) as executor dative. The meeting was held. The heir of the deceased nominated Mr. Shenker for the office of executor dative, and Langstaffe nominated himself. Thereupon the Master, having these two nominations before him, and taking this to be a case of "competition for the office of executor dative" in terms of sec. 35 of the Act, proceeded to deal with the matter under that section, and decided to appoint both the nominees as executors dative. He notified Shenker of his intention to appoint him and Langstaffe as joint executors. Shenker refused to accept the appointment on such terms, claiming the right to be appointed sole executor. The Master refused to recognise this claim, and eventually, as Shenker would not yield, he appointed Langstaffe as sole executor. Shenker applied to a judge in chambers on notice of motion, for the removal of Langstaffe and for his own appointment as executor dative. His application was dismissed. He then appealed unsuccessfully to the full court of the Transvaal Provincial Division and now appeals to this court. At the outset it must be pointed out that the position in this case is evidently the same as if the Master had in fact appointed both Shenker and Langstaffe, for the Master cannot be placed in a worse position (so far as these proceedings are concerned) by reason of the fact that Shenker refused to accept appointment jointly with Langstaffe. The relevant sections of the Act, namely sec. 34 and 35 read as follows: -

"34 (1) Whenever -

"(a) any person has died without having by any valid will nominated any person to be his executor ;

De Villiers, J.A.

"(b) any person duly nominated to be the executor of any deceased person has predeceased him or refused or becomes incapacitated to act as executor or within such reasonable time as the Master deems sufficient fails to obtain letters of administration; the Master shall cause to be published in the Gazette and in such other manner as he thinks fit, a notice calling upon the surviving spouse (if any), the heirs, legatees, and creditors of the deceased to attend before him, or, if more expedient, before any magistrate at a time and place to be specified in that notice, for the purpose of proposing some person to be appointed by the Master or, as the case may be, recommended by that magistrate to the Master for appointment as executor dative.

"(2) The Master shall appoint such person as he deems flit and proper to be executor dative of the estate of the deceased and shall grant letters of administration accordingly, unless it appear to him necessary or expedient to postpone the appointment and to publish another such notice as aforesaid.

"35. In every case in which there is competition for the office of executor dative, the surviving spouse, or, failing a surviving spouse, an heir or some of the heirs or, failing an heir, a creditor or creditors, or, failing a creditor, a legatee or legatees or the nominee of any such person or class of person, shall be preferred by the Master to the office of executor: Provided that nothing in this section contained shall prevent any one or more persons of the classes aforesaid from being conjoined in the said office with one or more of any other of those classes and if it appear to the Master, or to the Court in reviewing the appointment of the Master, that any good reason exists against the appointment of all or any of those persons or classes of persons as executor or executors any such person or class of persons may be passed by and some other fit and proper person or persons may by the Master or by the Court be appointed executor or executors."

Now it is clear, indeed it is common cause, that the Master was not "a creditor of the deceased" in terms of sec. 34 (1) (though he may have become a creditor of the estate after the deceased's death). It follows that Langstaffe had no locus standi to nominate an executor at the statutory meeting. It further follows (and it is again common cause) that the only nomination was that of Shenker, and that there was consequently, no "competition for the office of executor dative" in terms of sec. 35, and that sec. 35

De Villiers, J.A.

did not apply to the case. The Master could therefore derive no powers from sec. 35 in this case, and in so far as he purported to act under that section the appointment made by him was inept and beyond his powers. That however does not by any means conclude the matter. There are several further questions to be considered, the main ones being (1) whether, apart from sec. 35, the Master was entitled to appoint both Shenker and Langstaffe by virtue of his powers under sec. 34 (2); and (2) whether in the event the Master, duly, (or at all) exercised his discretion under sec. 34 (2); and (3) to what extent this, court can inquire into the merits of such an exercise of discretion.

As to the first question, Mr. Rosenberg contends, (a), that under sec. 34 (2) the Master is bound, when there is no competition to appoint the nominee of the statutory meeting, and can only reject him if he deems that be is not a fit and proper person or if it appears to him that some good reasons exists against his appointment; and (b) that the Master...